- 1 - NC: 2025:KHC:3275 WP No. 30332 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 30332 OF 2019 (GM-CPC) BETWEEN: SRI. M. SRINIVASA DEVADIGA, S/O LATE MAHALINGA DEVADIGA, RESIDING AT 'SRI NILAYA', BHOOTOTTU, KAVOOR, SHIVANAGAR, KAVOOR, MANGALORE - 575 015. …PETITIONER (BY SRI. NAIK N R.,ADVOCATE) AND: 1. SRI. CHANDRASHEKAR S/O SRI. THIMMAPPA DEVADIGA, AGED ABOUT 55 YEARS, 2. SRI. RANJITH S/O SRI. CHANDRASHEKAR AGED ABOUT 22 YEARS, 3. SRI. RAKSHITH S/O SRI. CHANDRASHEKAR AGED ABOUT 20 YEARS, 4. SRI. RAJATH S/O SRI. CHANDRASHEKAR, AGED ABOUT 18 YEARS, Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3275 WP No. 30332 of 2019 ALL ARE LEGAL HEIRS OF DECEASED 1ST PLAINTIFF SMT. PREMA. ALL ARE RESIDING AT ERANDILU HOUSE, ARALA VILLAGE, BANTWAL TALUK. 5. SRI. RAMESH S/O LATE MAHALINGA, AGED ABOUT 52 YEARS, RESIDING AT 'SRI. KRIPA', KAVOOR DEVASA, KAVOOR, MANGALORE - 575 015. 6. SMT. SHOBHA W/O SRI. SATHYAM D/O LATE MAHALINGA, AGED ABOUT 50 YEARS, 7. SRI. NAGESH S/O LATE MAHALINGA, AGED ABOUT 48 YEARS, 8. SMT. SHEELA W/O SRI. SUNIL D/O LATE MAHALINGA, AGED ABOUT 44 YEARS, RESPONDENT NO.6 TO 8 ARE RESIDING AT BOOTHA BETTU HOSE, SHIVANAGARA, KAVOOR, MANGALORE - 575 015. …RESPONDENTS (BY SRI. GURUPRASAD, ADVOCATE FOR R1 AND R5; VIDE ORDER DATED 19.12.2024, WP AGAINST R2 IS DISMISSED; R3, R4, R7, R8 SERVED AND UNREPRESENTED; VIDE ORDER DATED 08.03.2021, NOTICE HELD SUFFICIENT IN RESPECT OF R6) - 3 - NC: 2025:KHC:3275 WP No. 30332 of 2019 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET-ASIDE THE ORDER PASSED ON I.A.NO.4 FILED U/O 18 RULE 1 OF CPC, IN O.S.NO.1060/2014, DATED 21.06.2019, BY THE HON- BLE 5th ADDL. CIVIL JUDGE AND JMFC AT MANGALORE, D.K, PRODUCED AT ANNX-E. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the orders passed on IA No.IV in O.S.NO.1060/2014 dated 29.06.2019 by the V Addl. Civil Judge & J.M.F.C., Mangaluru, D.K., the defendant is before this Court. 2. The respondents herein had filed the suit for partition. It is the case of the plaintiffs that the suit schedule property belongs to the mother of the plaintiffs has been acquired by them. The mother of the plaintiffs and defendant have entered into a deed of Partition dated 01.01.1996 registered as Document No.3368/1995-96 of the Office of Sub- Registrar, Mangalore. During her lifetime, she had been in absolute possession and enjoyment of the property without any claim or hindrances. She died intestate on 21.03.2009 leaving - 4 - NC: 2025:KHC:3275 WP No. 30332 of 2019 behind her children that is the plaintiffs and defendant as her sole surviving legal hairs. The father that is the husband of Smt.Devika had predeceased her on 20.07.1996. Hence, after the death of the mother, the plaintiffs and defendant being the children acquired 1/6th right each in the schedule property and thus each of the plaintiffs has 1/6th right in the schedule property. An issue is framed by the defendant that he is a bonafide purchaser of the property or not then the application came to be filed under Order XVIII Rule 1 of CPC directing the defendant to commence the evidence. It is the case of the plaintiffs that once the defendant proves that he is a bonafide purchaser, then the suit itself will be dismissed and they will adduce the rebuttal evidence. The Court by order impugned had allowed that application and the Court observed that in lieu of the issues framed by bestowing burden on the defendant, the plaintiff is at liberty to lead rebuttal evidence on issue No.3. Aggrieved thereby, the defendant is before this Court. 3. Learned counsel appearing for the defendant submits that the suit is filed by the plaintiffs seeking partition and separate possession and it is the case of the defendant that it is the property of the mother of the plaintiffs and he has - 5 - NC: 2025:KHC:3275 WP No. 30332 of 2019 purchased the property from her. The burden lies on the plaintiffs to prove that it is a joint family property and that burden has not been discharged by them and the Court cannot direct the defendant to lead the evidence and in fact the burden is cast upon the defendant by passing this order. 4. On 10.01.2025, when the matter came up before this Court, there was no representation on behalf of the respondents and this Court heard the learned counsel for the petitioner and listed this mater as part-heard. Today also, there is no representation. Even on 09.01.2025 and 30.07.2024 also there was no representation on behalf of the respondents. It appears that the respondents are not interested to pursue the matter. 5. Having heard learned counsel for the petitioner, perused the material on record. The suit is filed seeking the relief of partition. According to the defendant, he has purchased the property and the mother is the absolute owner and it is not a joint family property. When the plaintiffs had come before the Court seeking that it is a joint family property and seeking partition, thus the burden lies on the plaintiffs to prove that - 6 - NC: 2025:KHC:3275 WP No. 30332 of 2019 the property is a joint family property and without discharging the said burden, the Court cannot direct the defendants to lead evidence and the order impugned is contrary to law. The same is liable to be set aside. Accordingly, this Court is passing the following: ORDER (i) The order impugned dated 29.06.2019 passed on I.A.No.IV in O.S.No.1060/2014 by the V Addl. Civil Judge & JMFC, Mangaluru, D.K., is set aside. Consequently, I.A.No.IV is dismissed. (ii) Accordingly, the Writ Petition is allowed. (iii) All IAs., in this writ petitions shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 4 CT: BHK