- 1 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.200395 OF 2023 (GM-CPC) BETWEEN: SRI NAGBHUSHAN SHIVAYOGI TRUST MUCHALAMB, TQ. BASAVAKALYAN, DIST. BIDAR, REPTD BY ITS PRESIDENT SRI. PRANAVANAND SWAMY AGE: 53 YEARS, R/O MUCHALAMB VILLAGE, TQ. BASAVAKALYAN DIST. BIDAR-585327 …PETITIONER (BY SRI. SACHIN M. MAHAJAN, ADVOCATE) AND: VASANTRAO S/O DATTATREYARAO KULKARNI, AGE: 74 YEARS OCC: PENSIONER, R/O VIDYASHREE COLONY, TRIPURANT BASAVAKALYAN, DIST. BIDAR-585327 …RESPONDENT (BY SRI. KADLOOR SATYANARAYANACHARYA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTIONS AND QUASH THE IMPUGNED ORDER DATED 04.01.2023 PASSED BY THE LEARNED ADDL. CIVIL JUDGE AT BASAVAKALYAN IN OS NO. 75/2016 VIDE ANNEXURE- F AND ALLOW THE IA NO. 8 BY ALLOWING THE WRIT PETITION. Digitally signed by SACHIN Location: High Court Of Karnataka - 2 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R.NATARAJ ORAL ORDER The defendant in OS No.75/2016 on the file of Civil Judge, Basavakalyan has filed this petition challenging the order dated 04.01.2023 by which an application in I.A.No.8 filed by him was rejected. 2. The suit in OS No.75/2016 was filed for declaration that the plaintiff is the absolute owner of the open plot bearing CMC No. 5045/13 situated in Tripuranth, Basavakalyan and for recovery of possession of the suit property from the defendant and for perpetual injunction. 3. Facts in brief are that the plaintiff claimed that he was a member of the Government Employee’s Housing Cooperative Society Limited, Basavakalyan and that the society formed a layout of residential sites in Sy.No.141 of Tripuranth and allotted the suit property to him, followed by execution of a deed of absolute sale dated 22.07.1989. - 3 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 Plaintiff claimed that the defendant, which is a trust had illegally encroached upon the suit property by annexing it into its property and enclosing it by raising a compound wall. The plaintiff therefore sought for the aforesaid reliefs. 4. The defendant contested the suit and claimed inter-alia that the boundaries of the suit property as shown in the schedule were wrong and imaginary. It also claimed that there was no plan sanctioned by the concerned authority in respect of Sy.No. 141 of Tripuranth. It contended that Sy.No.141 of Tripuranth was a government poramboke land, comprised of hundreds of acres and that the plaintiff was claiming ownership to a small plot in the said survey number, which is neither measured nor demarcated and separated from the parent Sy.No.141. He also contended that the grant of land to the society remained only on paper and the society was not placed in possession by the State Government. Based on these contentions, the Trial Court framed the following issues: - 4 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 “1. Whether the plaintiff proves that he is the owner and possessor of the suit open space bearing CMC No.5045/13 measuring East-West 12 meters and North-South 9 meters, totally measuring 108 Square meters in layout approved land Sy. No.141 situated at Tripurant, Basavakalyan? 2. Whether the plaintiff proves that the defendant is in illegal possession over the suit property? 3. Whether the plaintiff proves that he is entitled for the relief of perpetual injunction against the defendant restraining from illegally constructing over the suit property? 4. Whether the defendant proves that the suit valuation made by the plaintiff is correct and the court fee paid is sufficient? 5. Whether the defendant proves that the suit valuation made by the plaintiff is correct and this court has no pecuniary jurisdiction to try this suit? 6. Whether the plaintiff is entitled for the relief claimed in the plaint? 7. What order or decree?” 5. When the suit was listed for cross examination of PW-1, an application was filed by the defendant under XIV Rule 5 to frame an additional issue which is as follows: "WHETHER, the defendant proves that the pltff. has not given the proper and specific discription of the suit property, for its correct Identification on the spot, and on that count the suit is hit by order VII Rule 3 of C.P.C. ". - 5 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 6. This application was contested by the plaintiff, who claimed that the issue was not necessary, as the defendant was entitled to confront his contentions while cross examining PW-1 and establish his defence that the boundaries mentioned in the plaint are incorrect or that the property cannot be identified. The Trial Court after considering the contentions urged in the application as well as the objections to it, held that the plaintiff had provided the boundaries of the suit schedule property and hence, he complied with order VII Rule 3 of CPC. It also held that the boundaries furnished by the plaintiff are sufficient to identify the property and therefore, the additional issue as suggested by the defendant did not arise. Being aggrieved by this order, defendant is before this Court. 7. Learned counsel for the defendant contends that an issue of fact arises, when one party asserts a fact and the other party denies. He contends that the plaintiff by giving boundaries had asserted that the suit property - 6 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 was bound by the boundaries mentioned in the plaint, which was denied by the defendant. He therefore contends that an issue of fact whether the boundaries furnished by the plaintiff are true or not, did arise for consideration. Therefore, he contends that the issue suggested by the defendant arose for consideration and the Trial Court committed an error in glossing over this. He contends that the issue is not regarding the plaintiff furnishing the boundaries, but the issue is regarding whether the boundaries furnished by the plaintiff are correct or not. 8. Per contra, learned counsel for the plaintiff contends that it is the defence of the defendants that the boundaries furnished by the plaintiff are not the correct boundaries and therefore, it is for the defendant to establish the same during the course of cross examination that the boundaries furnished by the plaintiff are not correct. He submits that the issue No.1 framed by the Trial Court would also take within its sweep the contentions urged by the defendant and therefore, he contends that - 7 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 there is no need for framing an additional issue as suggested by the defendant. 9. I have considered the submissions of learned counsel for the defendant and learned counsel for the plaintiff. 10. A perusal of the plaint and the written statement shows that the plaintiff asserted that he was allotted a site by the society and that the boundaries furnished by the plaintiff corresponded with the boundaries mentioned in the documents executed by the society. Therefore, plaintiff on his part had complied with order VII rule 3 of CPC. If, the defendant contends that the boundaries mentioned by the plaintiff are imaginary or that the property of the plaintiff cannot be identified based on the boundaries furnished in the plaint or that the boundaries of the property mentioned by the plaintiff does not exist, it is for the defendant to establish that in the course of cross examination of PW-1. Though, the - 8 - NC: 2025:KHC-K:1255 WP No. 200395 of 2023 contention of the learned counsel for the defendant that an issue of fact arose appears probable in first blush, but, having regard to the dimension of issue No.1 framed by the Trial Court, this Court is of the opinion that the issue suggested by the defendant is also encompassed in issue No.1. Consequently, the trial court was right in holding that there is no need for framing a fresh issue as suggested by the defendant. 11. Consequently, this writ petition is disposed off upholding the order passed by the Trial Court, but on terms mentioned in the above paragraphs. Sd/- (R.NATARAJ) JUDGE NJ List No.: 1 Sl No.: 59 CT:SI