(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 30.08.2016 passed in IA filed U/O 14 Rule 5 of CPC in OS 19/2015 on the file of 2nd Addl. Sr. Civil Judge and JMFC, Tumakuru vide Annexure-G.
This writ petition coming on for preliminary hearing this day, the Court made the following)
1. The defendant filed the present writ petition against the order dated 30.8.2016 on IA made in O.S No.19/2015 rejecting the application filed by the defendant No.3 under order XIV Rule 5 of the Code of Civil Procedure seeking an order to frame an additional issue in the application as prayed for.
2. The respondent who is the plaintiff before the Trial Court filed O.S.No.19/2015 for relief of cancellation of the compromise decree made in O.S.No.284/2014 dated 19.9.2014 on the file of the I Additional Senior Civil Judge, Tumakuru holding the same as fraudulent and declaration of the plaintiffs title and possession and also consequential relief of permanent injunction contending that he is the owner of the suit schedule property and morefully stated in paragraph Nos.2 and 3 of the plaint. The defendants filed the written statement denying the entire averments made both in paragraph Nos.2 and 3 of the plaint and specifically contended that one Honnadasegowda @ Dasegowda is the propositus of the family of the defendants. The said Honnadasegowda @ Dasegowda had a son by name Narasegowda @ Doddanarasegowda @ Bhyranna. The defendant NO.1 is the son of Narasegowda @ Doddanarasegowda @ Bhyranna. The revenue authorities and the other authorities were used to mention the name of the father of the defendant No.1 in revenue records as Narasegowda and in come other documents mentioned the name of Narasegowda as Doddanarasegowda and also @ Bhyranna. But originally the name of the father of the defendant NO.1 is Narasegowda and it has been mentioned in the educational academic records of defendant No.1 and also in the identity card. The propositus Honnadasegowda @ Dasegowda is the grand father of the defendant No.1 and Narasegowda @ Doddanarasegowda @ Bhyranna is the father of the defendant No.1. The defendant Nos.2 to 4 are the sons and daughter of the defendant No.1 and etc, and prayed for the dismissal of the suit.
3. When the matter was posted for cross-examination of PW1, only the defendant No.3 filed application under Order XIV Rule 5 of CPC to frame an additional issue with regard to the plaintiff case that he is the sole successor of Narasegowda S/o Dasegowda and succeeded to the suit schedule properties through inheritance contending that in paragraph No.2 of the plaint he has given the details how he got the property and became the owner. Therefore, an additional issue sought is necessary and proper to adjudicate the dispute between the parties. The said application was resisted by the plaintiff by filing objection and contended that the averments made in paragraph No.2 of the plaint by the plaintiff is covered by issue No.1 already framed. Therefore, there is no necessary to frame an additional issue as prayed for. Therefore, he sought for dismissal of the application.
4. The Trial Court after considering the application and objections filed by both the parties to the list, by the impugned order dated 30.8.2016 dismissed the I.A. filed under order XIV Rule 5 of Code of Civil Procedure. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis. 6. Sri M.B. Chandra Chooda, learned counsel for petitioners vehemently contended that the impugned order passed by the Trial Court rejecting the application filed by the defendant No.3 is contrary to the pleadings in the plaint and denied by the defendants in the written statement. He further contended that the Trial Court failed to consider the status of the respondent/plaintiff has been specifically denied and hence the issue regarding his status as a successor to the propositor is necessary and that is the root cause for the dispute between the parties. Therefore, he sought to allow the writ petition by setting aside the impugned order passed by the Trial Court.
7. Per contra, Sri Vijayakumar Prakash, learned counsel for the respondent Plaintiff sought to justify the impugned order and specifically contended that the plaintiff has pleaded so many facts in paragraph No.2 of the plaint for relief of cancellation of the compromise decree made in O.S.No.284/2014 dated 19.9.2014 holding the same as fraudulent and fraud and declaration of the plaintiff s title and possession and also consequential relief of permanent injunction. Therefore, he sought for the dismissal of the writ petition.
8. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:
Whether the impugned order passed by the Trial Court dismissing the application filed under Order XIV Rule 5 of CPC calls for any interference in the facts and circumstances and of the present case?
9. In have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
10. It is not in dispute that the respondent s suit for declaration is based on various averments made in paragraph Nos.2 and 3 of the plaint including the claim of succession through Narasegowda. The said averment made in paragraph Nos.2 and 3 of the plaint has been specifically denied by the defendant Nos.2 to 4 by filing the written statement. It is not in dispute that the plaintiff filed the suit for declaration. It has to be established based on the pleadings, oral evidence and material documents to be produced before the Trial Court. Admittedly, the Trial Court framed the issues on 6.6.2016. The first issue reads as under:
Whether the plaintiff proves his title and possession on the suit schedule properties as on the date of the suit. 11. The said issue covers the entire pleadings especially paragraph Nos.2 and 3 made in the plaint by the plaintiff including the claim of succession through Narasegowda and it is for him to prove the averments made in the plaint by producing the oral and documentary evidence and the Trial Court has to decide the suit of the parties based on the material documents after adjudicating of full trial.
12. The Trial Court after considering the applications and the objections specifically recorded a finding that in the light of the contention taken by the defendant No.3 in the affidavit filed in support of the present application, I have once again perused the pleadings of both parties to the suit. As rightly contended by the defendant No.3 in his affidavit filed in support of the application the plaintiff has pleaded the aforesaid facts in his pleadings, which are denied by the defendants in their written statement. But, each assertion and denial needs no independent issues to be framed for its adjudication. As rightly contended by the plaintiff, issues No.1 includes the aforesaid facts in issues to be adjudicated in the present case on hand. When the plaintiff is claiming his title on the suit schedule properties from his ancestors acquired under inheritance, he has to prove his relationship with his ancestors. Therefore, a separate and independent issue need not be framed in that regard.
13. Accordingly, the Trial Court rejected the present application. It is not in dispute that the plaintiff filed the suit for declaration based on the specific pleadings made in paragraph Nos.1 to 3 including inheritance through Narasegowda. The same has been specifically denied by the defendants in the written statement. It is for the plaintiff to prove his title and how he got the property through Narasegowda as specifically pleaded in paragraph No.2 of the plaint. Therefore issue No.1 raised by the Trial Court includes the additional issue sought for by the defendant No.3 in the present application.
14. For the reasons stated above, the point raised in the present writ petition has to be answered in the affirmative holding that the Trial Court is justified in rejecting the application filed under XIV Rule 5 of CPC. No interference is called for under Article 227 of the Constitution of India. Accordingly this writ petition is dismissed.