Karnataka High Court
Smt. Yashodamma vs R Venugopal on 27 February, 2024
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NC: 2024:KHC:8131
WP No. 21947 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 21947 OF 2022 (GM-CPC)
BETWEEN:
SMT. YASHODAMMA
W/O K. RAMU
AGED ABOUT 60 YEARS,
R/AT NO.9, 1ST MAIN ROAD,
PAMPANAGARA,
YASHWANTAPURA,
BENGALURU - 22
REPRESENTED BY GPA HOLDER
K.R. NAGESH
S/O K. RAMU
AGED ABOUT 36 YEARS
R/AT NO.9, 1ST MAIN ROAD,
PAMPANAGARA
Digitally YASHWANTAPURA
signed by BS BENGALURU - 22
RAVIKUMAR
...PETITIONER
Location:
HIGH (BY SRI. PARASHURAM R HATTARAKIHAL, ADVOCATE)
COURT OF
KARNATAKA AND:
R. VENUGOPAL
S/O B.N. RAMAKRISHNA,
AGED ABOUT 45 YEARS
R/AT No.653, 9TH CROSS,
BAGALAGUNTE MAIN ROAD,
NAGASANDRA POST
BENGALURU - 73
...RESPONDENT
(BY SRI. RAJESHA SHETTIGARA, ADVOCATE (ABSENT))
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NC: 2024:KHC:8131
WP No. 21947 of 2022
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 04.06.2021 PASSED ON I.A.NO.7 BY THE VIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
IN O.S.NO.4258/2017 UNDER ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
The petitioner being the plaintiff in O.S.
No.4258/2017 on the file of VIII Additional City Civil and
Sessions Judge, Bengaluru, (henceforth referred to as 'the
Trial Court') has filed this petition challenging the
correctness of an order dated 04.06.2021 by which an
application (I.A.No.VII) filed by the defendant was allowed
and an additional issue was framed.
2. The suit in O.S. No.4258/2017 was filed for
perpetual injunction based on the title of the plaintiff. The
suit was contested by the defendant based upon which the
Trial Court framed the following issues:
NC: 2024:KHC:8131
"1. Whether the plaintiff proves her
lawful possession over the suit schedule
property as on the date of the suit ?
2. Whether the plaintiff proves alleged
interference of the defendant over the suit
schedule property?
3. Whether the plaintiff is entitled for
the relief sought for ?
4. What order or decree?"
Later, when the suit was set down for the cross-
examination of the plaintiff/PW.1, an application (I.A.
No.VII) was filed by the defendant under Order XIV Rule 5
read with Section 151 of the Code of Civil Procedure, 1908
(for short, 'CPC') to frame an additional issue as to
whether the plaintiff proved that he was the lawful owner
of the suit schedule property.
3. This application was contested by the plaintiff
on the ground that such an issue did not arise as the suit
was only for perpetual injunction.
NC: 2024:KHC:8131
4. The Trial Court passed the impugned order
framing additional issue No.1 which reads as follows:
"Whether the plaintiff proves that she is the
owner of the suit schedule property?"
5. Being aggrieved by the said order, the plaintiff
is before this Court.
6. Learned counsel for the plaintiff contends that
the suit was based on title and therefore, the plaintiff had
to incidentally prove his title to the suit property and not
establish his title and the title of his vendor. He submits
that the additional issue No.1 framed by the Trial Court
does not arise for consideration as the Trial Court has
already framed an issue as to whether the plaintiff is in
lawful possession of the suit property.
7. Learned counsel for the respondent has
remained absent and therefore, this Court did not have
the advantage of his submissions.
NC: 2024:KHC:8131
8. A perusal of the plaint discloses that the
plaintiff claimed the relief of perpetual injunction on the
basis of a sale deed dated 28.06.2004. Therefore, it was
for the plaintiff to establish that she was placed in
possession of the suit property under the sale deed dated
28.06.2004. The evidence to be adduced was only limited
to answer the aforesaid question and nothing beyond. The
fulcrum in the case was whether the plaintiff was in
possession of the suit property or not and not whether she
was the owner of the suit property. If the defendant
established a rival title to the suit property and also
established that he was in possession of the suit property,
the Trial Court could hold that a mere suit for injunction is
not maintainable. However, the Trial Court could not have
framed an additional issue of far reaching consequences as
to whether the plaintiff proved that he was the owner of
the suit schedule property.
9. In that view of the matter, this petition is
allowed and the impugned order dated 04.06.2021 passed
NC: 2024:KHC:8131
by the VIII Additional City Civil and Sessions Judge,
Bengaluru, in O.S. No.4258/2017 framing an additional
issue as to "whether the plaintiff proves that she is the
owner of the suit schedule property?" is set aside. The
Trial Court shall decide the suit based on the issues
framed on 28.10.2017.
Sd/-
JUDGE
SMA
