S.M. Muniyappa vs Papamma and Others

Aravind Kumar, J.—1. Heard Sri Ashwathanarayana Reddy, learned counsel appearing for the petitioner and Sri P N Rajeshwara, appearing for respondents 1(A) and 2. The question of issuing notice to other respondents does not arise inasmuch as, writ petitioner who is the 1st defendant in O.S. No. 4193/94 has questioned the order dated 09.10.2015 passed by the trial Court dismissing applications filed by him which was for recasting of the issues and as such, any order that would be passed in these writ petitions, it is the plaintiffs alone who would be aggrieved and none other.

It is the contention of Mr. Ashwathanarayana Reddy, learned counsel appearing for the petitioner/1st defendant that trial Court committed a serious error in rejecting the application for recasting of the issues and it ought to have allowed the same and recasted the issues as sought for by casting the burden on the plaintiff as well as 2nd defendant and non-consideration of the application in proper perspective has resulted in an erroneous order being passed.

Per contra, Sri P N Rajeshwara supports the impugned order and contends that on the sole ground of delay, the application was liable to be dismissed since the issues were casted on 25.01.2011 and the application in question for recasting of the issues came to be filed on 25.11.2015 after a period of four years. Even otherwise, he would submit that the issues already framed would encompass the proposed issues also.

Having heard the learned counsel appearing for the parties and on perusal of the pleadings as well as the impugned order, it would indicate that respondents 1 and 2 have filed a suit in question for declaration and partition of suit schedule property which is a land bearing Sy. No. 12/5, Mullur Village, Bangalore South Taluk measuring 2 acres 14 guntas. It is contended that Plaintiff and defendants were cultivating the land jointly till the death of the father-in-law of the 1st plaintiff till 1978 and after his death, they were cultivating the land personally and were raising Eucalyptus trees. It is further contended that the 1st defendant in order to deprive the claim of the plaintiff, filed Form No. 7 before the Land Tribunal contending that he is cultivating the land under one Sri. Nanjunda Reddy at Dommasandra and the said proceedings ended in grant of occupancy rights in favour of the 1st defendant which was challenged by the 1st plaintiff seeking for rectification and contending it enures to the benefit of joint family and on being informed by the Tribunal to approach the jurisdictional competent Court, plaintiff had filed a petition in Writ Petition No. 10865/87 and this Court, by order dated 26.08.1988 had observed that Writ Petitioner therein i.e. plaintiff No. 2 in the suit in question as a member of the joint family consisting of 1st respondent, himself and others, if any, is entitled to have his share worked in the land in question with other properties, if any, in a suit for partition in the Civil Court. With these observations, the writ petition came to be disposed of by reserving liberty to the petitioner to have his share in the land worked out in an appropriate suit. As such, plaintiffs have filed the suit in question contending that it is a joint family property and they are entitled for a share in the suit schedule property.

Trial Court on the basis of the pleadings of the parties, have framed the issues on 25.11.2011. By the proposed issues or in other words, seeking recasting of the issues two applications had been filed. A perusal of the proposed issues would clearly indicate the 1st defendant is virtually reiterating the issues already framed by re-coining the words. In fact, as rightly observed by the trial Court, first issue framed as to, "Whether the plaintiffs prove that suit property is ancestral and undivided family property of the plaintiffs and defendants?" would encompass the proposed issues viz., issues which have been proposed under the impugned order by the 1st defendant. As such, the trial Court has rightly observed that issue Nos. 1 to 6 and 8 already framed would be covering the issue Nos. 1 to 4 which the 1st defendant intends to be recasted and reframed in substitution of issue Nos. 1 to 6 and 8 already framed, so also, the proposed issue Nos. 8 to 15 which the 1st defendant wants to be recasted which relates to plaintiffs and defendant No. 2 and her legal representatives proving they are the members of the joint family. This would also clearly fall within issue No. 1, the burden of which is on the plaintiff. As such, trial Court was fully justified in arriving at a conclusion that the proposed issue Nos. 8 to 15 is already covered in Issue Nos. 1 to 6 & 8. In that view of the matter, there is no error committed by the trial Court in rejecting the applications in question.

Since a Co-ordinate Bench of this Court had earlier issued a direction to the trial Court to dispose of the suit expeditiously, at any rate within a period of six months and the said period having expired, it would be necessary to issue further direction. The suit is of the year 1994 and as such trial Court is directed to dispose of the suit within four months from today and it is also made clear that in the event of any of the parties were to seek for an adjournment without satisfaction of the trial Court, it would be at liberty to impose costs on such of those parties and trial Court shall also keep in mind Order XVII of Code of Civil Procedure and dispose of the suit within the time frame as observed herein above. Both parties are directed to co-operate with the trial Court.

Writ Petitions are dismissed subject to observations made herein above. In view of the disposal of the writ petitions on merits, question of considering I.A. 1/16 does not arise.