- 1 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO. 101724 OF 2025 (GM-CPC) BETWEEN: PARASANGOUDA S/O. GADDIGOUDA GADDIGOUDRA, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. HARALAKATTI, TQ: SAVADATTI, DIST: BELAGAVI-591 126. …PETITIONER (BY SRI. GIRISH V.BHAT, ADVOCATE) AND: 1. YALLAVVA W/O. GADDIGOUDA GADIGOUDRA AGE: 86 YEARS, OCC: AGRICULTURE, R/O. HARALAKATTI, TQ: SAUNDATTI, DIST: BELGAVI-591126. 2. SANKAVVA D/O. GADDIGOUDA GADDIGOUDRA @ MAHADEVI W/O. SHIVAPPA PUDALKATTI, AGE: 56 YEARS, OCC: AGRICULTURE, R/O. HARALAKATTI, TQ: SAUNDATTI, DIST: BELGAVI-591126. 3. UMESH S/O. BHIMAPPA DEEVATAGI AGE: 40 YEARS, OCC: AGRICULTURE, R/O. HARALAKATTI, TQ: SAUNDATTI, DIST: BELGAVI-591126. …RESPONDENTS (SERVICE OF NOTICE TO RESPONDENTS ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR A DIRECTION OR AN APPROPRIATE ORDER IN THE NATURE OF CERTIORARI, QUASHING THE IMPUGNED ORDER PASSED BY THE 1ST ADDL. CIVIL JUDGE AND JMFC SAUNDATTI IN O.S NO. 158/2023 DATED 01.02.2025 VIDE ANNEXURE–G; CONSEQUENTLY ALLOW THE I.A NO.4 IN O.S NO. 158/2023 PENDING ON THE FILE OF 1ST ADDL. Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.07.19 10:11:57 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 CIVIL JUDGE AND JMFC SAUNDATTI AND FRAME ADDITIONAL ISSUE AS PRAYED IN THE I.A NO. 4 BY THE DEFENDANT NO.1 AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ ORAL ORDER Defendant No.1 in O.S.No.158/2023 on the file of the I Additional Civil Judge and JMFC, Saundatti (hereinafter referred to as the ‘trial Court’, for short) is before this Court challenging the correctness of an order dated 01.02.2025, by which an application (I.A.No.4) filed by him under Order XIV Rule 2(b) read with Section 151 of CPC was rejected. 2. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. 3. The suit in O.S.No.158/2023 was filed for partition and separate possession of the plaintiffs’ share in the suit schedule properties. The sum and substance of the claim of the plaintiffs was that the suit schedule properties - 3 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 were lands endowed to Village Office and that the same was granted to the predecessors in title of the plaintiffs and the defendants. It was clamed that the lands were granted to the family and that the defendants had not partitioned the properties despite a request being made by the plaintiffs. 4. The suit was contested by the defendants No.1 and 2 who inter alia contended that suit Item Nos.1 and 2 were partitioned in terms of a document which was duly registered before the concerned Sub-Registrar. It was claimed that as per partition, the plaintiff No.2 and the defendants No.1 and 2 were put in possession of the property that fell to their respective shares and therefore, the plaintiffs were not entitled to any share in the suit schedule properties. Besides this, it was contended that the plaintiffs were signatories to the partition and are estopped from now contending that there was no partition of the properties of the family. Therefore the defendants contended that the suit for partition was not maintainable. In respect of the suit Item No.1 it was contended that the said property was held by the father of the plaintiff No.2 and the - 4 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 defendants as well as their uncles and that there was no partition between them and therefore, the uncles of the plaintiffs were also necessary parties. 5. Based on these contentions, the trial Court framed the following issues: “1. Whether the plaintiffs prove that, suit properties are joint family properties of the plaintiffs and defendants? 2. Whether the plaintiffs prove that, they are in joint possession of the suit properties? 3. Whether the plaintiffs prove that, no partition has been effected so far between the plaintiffs and defendants? 4. Whether the defendant No.1 proves that suit of the plaintiffs is suffers from non joinder of necessary parties? 5. Whether the defendant No.1 proves that, suit of the plaintiffs is barred by law of limitation? 6. Whether the plaintiffs are entitled to the relief of partition and Separate Possession as prayed for? 7. What order or decree?” An additional issue was framed by the trial Court on 01.02.2025 which reads as under: “Whether the defendant No.1 proves that the partition between plaintiffs and defendants were taken - 5 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 place by virtue of registered partition deed dated 01- 06-2000?” 6. Before the evidence in the suit had commenced, the defendant No.1 filed an application under Order XIV Rule 2(b) of CPC to frame the following issues: “a. Whether suit is bad in law for not seeking the declaratory relief regarding the registered Partition Deed dated 01-06-2000? b. Whether plaintiffs are estopped from seeking partition in the suit property by virtue of registered partition deed dated 01-06-2000?” 7. This application was rejected by the trial Court in terms of the impugned order on the ground that the burden to prove additional issue was upon the defendant No.1 and therefore, there was no need to frame issues proposed by defendant No.1 in the application. 8. Being aggrieved by the said order, defendant No.1 is before this Court in this petition. 9. Learned counsel for the defendant No.1 submitted that the plaintiff No.2 was a party to the partition deed dated 01.06.2000. Therefore, the plaintiff No.2 without seeking for - 6 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 a declaration that the partition deed was not valid or unenforceable cannot make a claim for a partition of the suit properties. Besides this, he contends that the plaintiff No.1 was a witness to the partition deed and therefore, knowledge of the contents of the deed could be attributed to the plaintiff No.1. He therefore contends that these two issues were necessary for effective consideration and disposal of the suit. 10. The respondents though served with the notice of this writ petition have not appeared. 11. A perusal of the additional issue framed shows that the defendant No.1 had claimed that there was a prior partition on 01.06.2000 and therefore, the burden to prove the said issue was placed upon the defendants. It is a matter of common knowledge that if the defendants are able to prove that there was an earlier partition to which the plaintiff No.2 was a party, the plaintiff No.2 would be non-suited. It is for the plaintiffs to establish that the partition deed, did not bind plaintiff No.2. This can be done only by necessary pleadings and proof. So long as the plaintiffs have not - 7 - HC-KAR NC: 2025:KHC-D:8695 WP No. 101724 of 2025 pleaded in the plaint about the partition and as long as the defendants contend that there was a prior partition, the additional issue framed by the trial Court is just enough for the trial Court to decide the dispute between the parties. Hence, no exception can be made to the order passed by the trial Court rejecting the application filed by the defendant No.1. However, it is open for the trial Court to frame any issue if it thinks necessary at the time of the disposal of the suit. 12. In view of the above, the writ petition is disposed off. Sd/- (R.NATARAJ) JUDGE RH Ct:vh List No.: 38 Sl No.: 9