Karnataka High Court

Rameshwari And Ors vs Satyabhama And Ors on 4 April, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                       WP No. 205284 of 2019




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                           DATED THIS THE 4TH DAY OF APRIL, 2024

                                           BEFORE
                          THE HON'BLE MR JUSTICE V SRISHANANDA

                        WRIT PETITION NO.205284 OF 2019 (GM-CPC)

                   BETWEEN:

                        RAMANAND THROUGH LRS.,

                   1.   RAMESHWARI,
                        W/O LATE RAMANAND,
                        AGED ABOUT 73 YEARS,
                        OCC: HOUSEHOLD.

                   2.   RAVI KIRAN S/O LATE RAMANAND
                        AGED ABOUT 54 YEARS,
                        OCC: LECTURER,

                   3.   RAJESH S/O LATE RAMANAND
                        AGED ABOUT 51 YEARS,
Digitally signed        OCC: MEDICAL PRACTITIONER,
by RENUKA
Location: High     4.   NANDA D/O LATE RAMANAND
Court Of
Karnataka               AGED ABOUT 43 YEARS,
                        OCC: HOUSEHOLD,

                   5.   BABITA D/O LATE RAMANAND
                        AGED ABOUT 41 YEARS,
                        OCC: HOUSEHOLD,

                   6.   SAVITA D/O LATE RAMANAND
                        AGED ABOUT 39 YEARS,
                        OCC: HOUSEHOLD,

                        ALL ARE R/O: NEW HOUSING COLONY,
                        K.E.BOARD NOW
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                                    WP No. 205284 of 2019




     AT NANDED (M.S).

                                            ...PETITIONERS
(BY SRI RAVI B. PATIL, ADVOCATE)

AND:

     HARISCHANDRA RAO ITS THROUGH LRS.,

1.   SATYABHAMA,
     W/O LATE HARISCHANDRA RAO,
     AGED ABOUT 78 YEARS,
     OCC: HOUSEHOLD,
     R/O: H.NO.1-5-162,
     SAI BABA GALLI, BIDAR.

2.   MULCHAND
     S/O LATE HARISCHANDRA RAO
     AGED ABOUT 52 YEARS,
     OCC: ADVOCACY,
     R/O H.NO.1-5-162,
     SAI BABA GALLI, BIDAR.

3.   MAHESHCHANDRA
     S/O LATE HARISCHANDRA RAO
     AGED ABOUT 49 YEARS,
     OCC: BUSINESS,
     R/O: H.NO.1-5-162,
     SAI BABA GALLI, BIDAR.

4.   SATISHCHANDRA
     S/O LATE HARISCHANDRA RAO
     AGED ABOUT 43 YEARS,
     OCC: AGRI., & BUSINESS,
     R/O: H.NO.1-5-162,
     SAI BABA GALLI, BIDAR.

     SADANAND RAO BY HIS LRS.,

5.   SMT. KADAMBARIBAI
     W/O SADANANDRAO
     AGED ABOUT 73 YEARS,
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                                   WP No. 205284 of 2019




     OCC: HOUSEHOLD,
     R/O: DARJI GALLI, BIDAR-585401.

     SHARADCHANDRA ITS THROUGH LRS.,

6.   SMT. SEEMA W/O SHARADCHANDRA
     AGED ABOUT 44 YEARS,
     OCC: HOUSEHOLD,
     R/O: DARJI GALLI, BIDAR-585401.

     SHARADCHANDRA ITS THROUGH LRS.,

7.   SHUBHAM S/O LATE SHARADCHANDRA
     AGED ABOUT 28 YEARS, OCC: STUDENT,
     R/O: DARJI GALLI, BIDAR-585401.


     SHARADCHANDRA ITS THROUGH LRS.,

8.   KUM. SHRUTI D/O LATE SHARADCHANDRA
     AGED ABOUT 27 YEARS, OCC: STUDENT,
     R/O: DARJI GALLI, BIDAR-585401.

     SHARADCHANDRA ITS THROUGH LRS.,

9.   AKSHARA D/O LATE SHARADCHANDRA
     AGED ABOUT 22 YEARS, OCC: STUDENT,
     R/O: DARJI GALLI, BIDAR-585401.

10. JAGDISHCHANDRA
    S/O LATE SADANANDRAO
    AGED ABOUT 50 YEARS, OCC: NIL,
    R/O: DARJI GALLI, BIDAR-585401.

11. SACHIDANAND
    S/O SADANANDRAO
    AGED ABOUT 44 YEARS,
    OCC: BUSINESS,
    R/O: DARJI GALLI, BIDAR-585401.

12. ANAND S/O LATE SADANANDRAO
    AGED ABOUT 36 YEARS,
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    OCC: BUSINESS,
    R/O: DARJI GALLI, BIDAR-585401.

13. GURUDAS
    S/O LATE NARAYANRAO
    AGED ABOUT 68 YEARS,
    OCC: BUSINESS & AGRI.,
    R/O: H.NO.1-5-162,
    SAI BABA GALLI,
    BIDAR-585401.

14. SMT. CHANDRAKALA BAI
    W/O LATE SHIVRAMPANTH
    AGED ABOUT 73 YEARS,
    OCC: HOUSEHOLD,
    R/O: H.NO.1-5-162,
    SAI BABA GALLI,
    BIDAR-585401.

15. SHIVCHANDRA
    S/O LATE SHIVRAM PANTH
    AGED ABOUT 48 YEARS,
    OCC: BUSINESS,
    R/O: H.NO.1-5-162,
    SAI BABA GALLI,
    BIDAR-585401.

                                        ...RESPONDENTS

(BY SRI GANESH S. KALBURGI, ADVOCATE FOR R1 TO R8
AND R10 TO R12;
R9 AND R13 ARE SERVED;
V/O DT.10/8/2022, NOTICE TO R14 & R15 DISPENSED WITH)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR
DIRECTION TO QUASH THE IMPUGNED ORDER ON I.A.NO.19
DATED 11.10.2019 IN O.S.NO.83/2011 PASSED BY THE COURT
OF I ADDL.CIVIL JUDGE AND JMFC-II AT BIDAR AS ANNEXURE-
G.
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                                         WP No. 205284 of 2019




     THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                             ORDER

Memo with certified copy of the order of the last page

i.e., page No.9 of order on I.A.No.19 dated 11.10.2019 is

furnished the same is taken on record.

2. Heard Sri Ravi B. Patil, learned counsel for the

petitioners and Sri Ganesh S. Kalburgi, learned counsel for

respondent Nos.1 to 8 and 10 to 12.

3. The writ petition is filed with the following

prayer:

"a) Issue a Writ of Certiorari or any other Writ or direction to quash the Impugned order on IA No.19 dated 11.10.2019 in OS No.83/2011 passed by the Court of I Addl. Civil Judge and JMFC-II, at Bidar, as ANNEXURE-G.

b) Pass such other Order/s as this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice and equity."

4. The respondents filed a suit in O.S.No.83/2011

for the relief of perpetual injunction restraining defendant

No.1 illegally raising a construction of shop over the suit

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property bearing CMC Nos.8-11-39 and 8-11-40 as shown

in sketch attached to the plaint and also decree of

mandatory directing defendant Nos.1 to 4 to demolish four

shops illegally constructed over the suit property.

5. The plaint got amended when the suit was

pending. While filing the additional written statement, the

defendant pleaded in paragraph No.12(a) to 12(d) as

under:

"12.(a) During the pendency of the suit, the plaintiffs herein particularly the legal heirs of plaintiff No. 1 i.e., Sri Mulchand Garje Advocate, with the help of his wife Smt. Yeshoda, on 01-11- 2015, has illegally entered the suit premise in between 08.00 to 10.00 a.m. and illegally occupied three rooms in the suit house, by committing an offence of criminal trespass and house braking. The defendant No.1 who was at Nanded on that day, after having came to know immediately came over to Bidar and found that, the three rooms which had been vacated by the tenants of the defendant No. 1, the said Mulchand Garje Advocate, has illegally occupied the said three rooms of the suit house. Therefore, the defendant No. 1 has filed a complaint before the New Town Police Station on 07-11-2015,

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and accordingly the concerned police has registered a criminal case in Crime No. 260/2015 for In offences U/Sec. 143, 448, 504, 506 R/W Sec. 149 of IPC and matter has been taken for investigation by the concerned police, the copy of the same is enclosed herewith for the kind perusal of this Hon'ble Court.

12.(b) Further it is submitted that, even after illegally occupying the said three rooms, the said Mulchand Garje, has again on 20th December 2015, at about 09.00 a.m. has again illegally occupied two

being helpless having attained old age could not throw the said Advocate out of the suit house and therefore having no other alternate has filed again police complaint on 22-12-2015 before the New Town Police Station, and the New Town Police Station has registered a criminal case against said advocate and his wife in crime No. 291/2015 U/Sec. 341, 448, 504, 506 R/w Sec. 34 of IPC. In this way, the said L.Rs of the plaintiff No. 1 particularly the son of plaintiff No. 1 i.e. Advocate with the help of his brother and wife, have illegally entered into the two portions of the suit house as mentioned above.

12.(c) Admittedly the plaintiffs have not claimed any exclusive possession over the suit property nor

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they have claimed any exclusively possession in any portion of suit property in their entire pleadings. In view of these facts, and in view of the facts about illegal occupation of the part of the suit property, the defendants are entitled for decree by way of counter claim Under Order VIII Rule 6 (A) of CPC for recovery of possession block No. 1 and II of the suit house, totally consisting of five rooms by dispossessing the plaintiffs from the said premises by granting the decree of mandatory injunction.

12.(d) Since, the defendants are claiming the relief of recovery of possession of block No. I and II by way of mandatory injunction directing the plaintiffs to vacate the block No. I and II of the suit house, the said relief is valued for Rs. 1,000/- U/Sec. 26 (c) of Karnataka Court Fee and Suit Valuation Act, upon which a court fee of Rs. 25/- is paid, which is sufficient."

6. Since there were rival contentions that was

permitted to be taken by the Court, there arose necessity

for the Court to frame additional issues vide impugned

order dated 11.10.2019.

7. The grievance of the writ petitioners is that

when there were two issues already on record, three more

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additional issues were surplusage on record. The writ

petitioners were more worried about the issue No.3,

whereunder the burden is cast on defendant No.1 that he

has to establish that the suit house is the self acquired

property.

8. Reiterating the grounds urged in the writ

petition, Sri Ravi B. Patil, learned counsel for the

petitioners contended that such an issue could not have

been framed by the Trial Court and said issue according to

the valuation of the plaintiff, would take away the

jurisdiction of the learned Civil Judge where the suit is now

pending and sought for allowing the writ petition.

9. Per contra, Sri Ganesh S. Kalburgi, learned

counsel for the respondents supported the impugned

order.

10. In the light of the rival contentions of the

parties, this Court perused the material on record

meticulously.

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11. On such perusal of the material on record, it is

crystal clear that the pleadings of the parties are taken

note of by the learned Trial Judge and then based on the

application filed vide I.A.No.19, re-casted the issue by

framing additional issue. In paragraph Nos.11 and 13, the

learned Trial Judge held as under:

"11. It is pertinent to note that, the defendant No.1 has claimed the counter claim and prayed for the recovery of the possession of two blocks of suit house property and claimed that the house is his self acquired property. Hence although the defendant No.1 has claimed the relief of mandatory injunction directing the plaintiffs to vacate the block No.1 and II consisting of five rooms in total in the suit house, by handing over the same to the defendants. Hence the defendant No.1 has claimed the relief of recovery of possession. And the plaintiffs have denied the title of the defendant No.

1. Under such circumstances there is need to frame issues on these points and this Court on 14-07-2016 has framed modified Addl. Issues which as are under:

1. Whether the defendant No.1 proved that plaintiff are in illegal

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occupation over the suit property to the extent of 5 rooms on stated in the para no. 12(a) to (d)?

2. Whether the defendant No.1 proves that he is entitled for the recovery of possession 5 rooms in the suit property by may mandatory injunction as claimed in his counter claim?

12. Now the plaintiff has submitted that the below issues are necessary in order to completely adjudicate the controversy between the parties and they are as follows:

1. Whether the Court fees paid by the defendant No.1 on counter claim for recovery of possession is correct.?

2. Whether the relief of recovery of possession is maintainable in absence of relief of declaration of ownership of the suit house?

3. Whether the defendant No.1 proves that the suit house is his self acquired property?

13. After perusal of the pleadings of the parties at the documents available on record the framing of above Addl. issues are necessary in order

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to determine the matters in controversy between the parties. And the objection raised by the other side holds no water. Under such circumstances the plaintiffs have made sufficient grounds to allow the above application. Hence I answer point No. I in Affirmative."

12. Order XIV Rule 5 of CPC permits the Court to

amend and strike out the issues. For ready reference,

Order XIV Rule 5 of CPC is culled out hereunder:

"[5. Power to amend and strike out issues.--(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]"

13. What is an issue in a civil proceedings and when

it is to be framed and what are the parameters which

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would govern the framing of an issue in a civil suit is no

longer res integra.

14. This Court in the case of Sri Mallappa

Ramappa Naik Vs. Shri Ittappa Kamappa and others

in R.S.A.No.1811/2005 had an occasion to examine the

power of the Court with regard to framing of an issue. In

the said case, it has been held as under:

"14. The term "issue" in a civil case means a disputed question relating to rival contentions in a suit. It is the focal point of disagreement, argument or decision. Needless to emphasise that framing of appropriate issue/s serves the laudable object of narrowing the conflict in a succinct manner. Scheme of Civil Procedure Code, contemplates that the court must thereafter proceed with the trial based on the issues and pronounce its judgment by answering all the issues.

15. For ready reference, provisions of Order XIV Rule 2 and Order XX Rule 5 are culled out hereunder:

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ORDER XIV Rule 2:

Rule 2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

ORDER XX RULE 5 OF CPC:

"5. Court to state its decision on each issue.- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each