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2021 DIGILAW 386 (KAR)

Sanjaysinh @ Murarao S/o Pratapsinh Shindhe v. Jaysingrao S/o Vijaysing Ghatge

2021-03-08

SACHIN SHANKAR MAGADUM

body2021
ORDER : The captioned writ petition is filed by the defendant No.3 questioning the order passed by the learned Judge on IA No.8 filed under Order 14, Rule 5 R/W Section 151 of CPC. 2. The facts leading to the case are as under: The respondent Nos.1 to 3 have filed a suit for partition and separate possession in OS No.4/2013. Respondent Nos.1 to 3/plaintiffs have specifically contended contend in the plaint that suit schedule properties are joint family ancestral properties. It is also stated at para2 of the plaint that 4th respondent/defendant No.1 who is the father of the plaintiffs is ‘Kartha’ of the joint family and there is no partition in the joint family ancestral properties. At Para No.3 of the plaint, respondent Nos.1 to 3/plaintiffs have alleged that respondent No.5/second defendant returned to his native in the month of September 2002 and when they were looking for a bride to perform the marriage of second defendant, they enquired about the properties of the Family of the groom and this compelled respondents/plaintiffs to verify the records and to their utter shock, they found that one property is standing in the name of 4th respondent/defendant No.1 and other two lands were standing in the name of the present petitioner/defendant No.3 and defendant No.4. Basing this as a cause of action, the present suit is filed. 3. The present petitioner/defendant No.3 on receipt of summons has tendered his appearance and contested the proceedings by filing written statement. The petitioner has specifically contended that the suit scheduled properties are self acquired properties of respondent No.4/defendant No.1 and he has sold the suit schedule properties for valuable consideration and hence, the properties which are subject matter of alienation are not available for partition. Based on the rival contentions, Trial Judge has formulated the issues. But, the present petitioner has filed application under Order 14 Rule 5 r/w Section 151 of CPC requesting the Court to formulate additional issues. The said application was not at all objected by the respondents/plaintiffs. However, the learned Judge has proceeded to reject the application on the ground that the present suit is one for partition and separate possession and the present petitioner being stranger does not have locusstandito contest the partition suit and contend that the suit schedule properties are self acquired properties of defendant No.1 i.e. his vendor. However, the learned Judge has proceeded to reject the application on the ground that the present suit is one for partition and separate possession and the present petitioner being stranger does not have locusstandito contest the partition suit and contend that the suit schedule properties are self acquired properties of defendant No.1 i.e. his vendor. The learned Judge was of the view that issue No.1 would cover the controversy between the parties and there by framing an additional issue as to whether defendant No.3 proves that agricultural lands were self acquired properties of defendant No.1 is not necessary issue for effective adjudication of controversy between the parties. On these set of reasons, learned Judge has rejected the application. 4. Learned counsel appearing for petitioner would vehemently argue and contended before this Court that the proposed issue needs to be framed so as to protect the right of present petitioner who is the purchaser of suit schedule properties for full sale consideration. 5. To buttress arguments, he would take this Court to memo filed by first defendant who has adopted written statement filed by second defendant. He would further take this Court to para18 of the written statement of defendant No.3 wherein the present petitioner has specifically contended that the family of the plaintiffs and defendant Nos.1 and 2 are owners of the land to the extent of 5 acres. Defendant Nos.1 and 2 are not claiming partition in the said ancestral property without including ancestral property, the plaintiffs at the instigation of first defendant has filed the present suit only in respect of the properties which are alienated. 6. Relying on these material aspects, learned counsel submit that there is prima facie case to indicate that present suit is collusive. The present petitioner is entitled to defend the case by claiming that suit schedule properties are self acquired properties of defendant No.1. 7. The respondents though served with notice have not chosen to contest this written statement. 8. It is a trite law that in a partition suit, the purchaser as a very limited role to play in partition suit. All that is required to be adjudicated is in regard to quantification of share and there by purchaser of the joint family ancestral property has a very limited role to play. His remedy if any would be to seek equities in Final Decree Proceedings. All that is required to be adjudicated is in regard to quantification of share and there by purchaser of the joint family ancestral property has a very limited role to play. His remedy if any would be to seek equities in Final Decree Proceedings. However, this proposition cannot be extended to those cases where there is collusion between the nonalienating member and the member who has indulged in transferring properties by executing registered sale deed for valuable sale consideration. The first defendant having sold the suit schedule properties for valuable sale consideration has conveniently not chosen to file written statement but has opted to adopt written statement filed by defendant No.2. To counter this conduct, the present petitioner at para 18 has specifically contended the present suit is collusive one. 9. In the background of factual matrix in the present case on hand, I am of the view that petitioner’s vendor has not chosen to file written statement and take a stand. In that view of the matter petitioner is entitled to lead rebuttal evidence to substantiate his case as pleaded at para 18 of written statement. Specific denial in regard to nature of properties by the purchaser in the present case on hand would give raise to additional issue since present petitioner asserting and claiming that the suit schedule properties are self acquired properties of the first defendant. Then the burden would invariably lie on present petitioner when specific pleading is raised in the written statement which runs contrary to the averments made in the plaint that all suit schedule properties are ancestral joint family properties. Under Order 14 Rule 1 of CPC a issue to that effect would arise. These material aspects are not dealt by the learned Judge. The Order also does not indicate that learned Judge has adverted to the averments made by present petitioner in para18 of the written statement. The impugned order also does not indicate that learned Judge has taken note of the fact that first defendant has adopted the written statement. 10. Under Order 14 Rule 5 of CPC, the Court has power to amend the issues or to frame additional issues on such terms as it think fit and the said Rule does not contemplate that the power must be exercised when application is made; on the other hand, it saddles on the Court duty to exercise power suomoto. 10. Under Order 14 Rule 5 of CPC, the Court has power to amend the issues or to frame additional issues on such terms as it think fit and the said Rule does not contemplate that the power must be exercised when application is made; on the other hand, it saddles on the Court duty to exercise power suomoto. It is the duty of the Court to frame clear and distinct issues on points in dispute between the parties. In that view of the matter, I am of the view that order under challenge suffers from serious infirmities and the same is liable to be set aside. 11. The finding of the learned Judge that issue No.1 would cover the entire controversy may not be correct. If there is no contest by first defendant on issue No.1, the plaintiffs/respondents may succeed in discharging their initial burden. If the ownership shifts on petitioner, he may not be able to lead rebuttal evidence in the absence of issue in regard to nature of the properties. In that view of the matter, to do substantial justice, in the given set of facts, I deem it fit that an additional issue as to “Whether defendant No.3 establish that properties sold by first defendant are self acquired properties?” needs to be framed. 12. It is also relevant to note that plaintiffs have not objected the application filed in IA No.8 dated 21.03.2016. This aspect is also to be taken into consideration. 13. For the reasons stated supra, writ petition is allowed. Impugned order is set aside with a direction to frame the additional issue referred by me as stated supra.