Sri Dyavappa v. Sri Kotreshappa

ORDER IN THE NATURE OF CERTIORARI QUASHING ANNEXURE-A IMPUGNED ORDER PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND JMFC AT SHIKARIPURA, DISMISSING FILED BY THE PLAINTIFF UNDER ORDER 14 RULE 1 TO 4 R/W 151 OF CPC IN O.S.NO.12/2017 SEEKING TO RECAST THE ISSUE NO.4 AND ALSO FOR FRAMING ADDITIONAL ISSUES ON 03-01-2026.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

ORAL ORDER

Aggrieved by the orders passed on I.A.No.30 in OS.No.12/2017 dated 03.01.2026 by the Senior Civil Judge & JMFC, Shikaripura, the petitioner/plaintiff is before this Court.

2.The plaintiff had filed a suit for partition and for declaration of the suit schedule property. When the matter is coming up for the cross-examination of defendant No.6, at that point of time, the petitioner has filed an application under Order XIV Rule 1 R/w 151 of CPC for recasting of the issues. By way

of this application, the petitioner wants the court to recast the issues which reads as thus:

¶1Whether the Defendants No 6 and 7 prove that they have indefeasible title holder owners by virtue of the Registered Gift deed dated 28/1/1971 alleged to have been executed by late Smt Nimbegondi Hulugamma W/O late Kumsi Dyavappa permanent R/O Nimbegondi Village Shikaripura taluk Shivamogga District pertaining to the Suit Schedule item no 7?

¶2Does both the defendant Numbers 6 and 7 respectively prove that late Smt Nimbegondi Hulugamma W/O Late Kumsi Dyavappa or Dyavanna who was a permanent resident of Nimbegondi Village Hosur Hobali Shikaripura taluk Shivamogga District during her life time had executed the registered Gift deed dated 28/01/1971 in their favour being herself personally present on 28/01/1971 during their minority that too for them as their minor guardian representing regarding item no 7 of the immovable property?

¶3Does the defendants No 6 and 7 respectively prove on what specified date the acceptance of the said gift deed dated 28/01/1971 was made by whom and also specifically in which mode by the recipient of the Gift that too as minor guardian grandmother to the 6th and 7th defendant when the said Gift deed dated 28/01/1971 was executed?

¶4Does the Defendant Nos 6 and 7 respectively prove the zenisis or origin their Genealogical tree as pleaded in their written statement?

3.The trial court by order impugned has dismissed the application and while dismissing the application, the court has given two reasons. One is that this application is filed at a

belated stage only to drag on the proceedings and further the court on perusal of the entire pleadings of both the parties, has come to the conclusion that it is not necessary to cast the burden on the defendant Nos.6 and 7, because in this case the plaintiff has taken a contention regarding creation of the gift deed dated 28.01.1971 executed in favour of defendant Nos.6 and 7. Hence it is the duty of the plaintiff to prove the same. Further in this case, the plaintiff has produced the decisions regarding point of law and recasting the issues and regarding the burden of proving the documents. But it is the duty of the plaintiff to prove the gift deed dated 28.01.1971 executed in favour of defendant Nos.6 and 7 is created one and the judgments relied up on by the petitioner are not applicable to the facts of the case and accordingly rejected the application.

¶4Learned counsel appearing for the petitioner submits that it is the duty of the trial court to recast the issues and delay cannot be a ground to dismiss the application. It is submitted that when defendants are asserting their rights with regard to the said gift deed, the trial court ought to have recasted the issues by casting the burden on the defendant to

prove the same, but all these aspects were not considered by the court.

¶5Having heard the learned counsel for the petitioner, perused the entire material on record. The plaintiff has filed the suit for partition and declaration. According to the plaintiff, the gift deed dated 28.01.1971 is a created one which is executed in favour of defendant Nos.6 and 7. Hence, at the time of cross-examination of defendants, the petitioner filed the instant application seeking recasting of the issue, where an issue has to be framed casting burden on the defendants that came to be dismissed by the court on two grounds. One is with regard to the delay and other is with regard to the fact that the burden cannot be placed on the defendant.

¶6In the considered opinion of the trial Court, the trial Court has rightly considered these aspects and rightly held that the burden cannot be cast upon the defendant. When it is the specific case of the plaintiff, that the gift deed dated

28.07.1971 is a created one. In that view of the matter, this Court do not find any reasons to interfere with the order passed by the trial court.

¶7Accordingly, this court is passing the following: ORDER i. The writ petition is dismissed. ii. Pending I.As., in this petition shall stand closed.

SD/- (LALITHA KANNEGANTI) JUDGE

TS List No.: 1 Sl No.: 50

((((((((((((HC-KAR, NC:(2026:KHC:39701( WP(No.(15797(of(2026( ( ,,,,,,,,,, , CNR:(KAHC010321492026( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU( TH (DAY(OF(JULY,(2026(DATED(THIS(THE(29 BEFORE( THE(HON'BLE(SMT.(JUSTICE(LALITHA(KANNEGANTI( WRIT(PETITION(NO.(15797(OF(2026((GM-CPC)( BETWEEN:(( ( , SRI,DYAVAPPA, S/O,LATE.,LOKAPPA,, AGED,ABOUT,55,YEARS,, R/O,NIMBEGONDI,VILLAGE,, HOSUR,HOBLI,,SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT., REP.,BY,HIS,GPA,HOLDER, KOTRESHAPPA, S/O,BASAVANYAPPA,, AGED,ABOUT,65,YEARS,, R/O,NIMBEGONDI,VILLAGE,, SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT-,577,427, …PETITIONER, Digitally (BY,SRI.,SAMEER,S.N.,,ADVOCATE), signedtiby SUVARNA0T , Location: AND:(HIGH COURT0OF ( KARNATAKA 1., SRI.KOTRESHAPPA, S/O,LATE.,LOKAPPA,, AGED,ABOUT,45,YEARS,, R/O,NIMBEGONDI,VILLAGE,, HOSUR,HOBLI,, SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT,–,577,427, , 2., SRI.,SHIVARAJA, S/O,LATE.,LOKAPPA,, AGED,ABOUT,43,YEARS,, ((((((((((((HC-KAR, NC:(2026:KHC:39701( WP(No.(15797(of(2026( ( ,,,,,,,,,, , CNR:(KAHC010321492026( ( ( R/O,NIMBEGONDI,VILLAGE,, HOSUR,HOBLI,, SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT-577,427, , 3., SMT.,HIRIYAMMA, W/O,LATE.,NINGAPPA,, RDTHE,LRS,OF,DECEASED,3 ,, DEFENDANT,ALREADY,RECORDED, THAS,A,4 ,DEFENDANT, SMT,LAXMAMMA, W/O,LATE.,NINGAPPA,, AGED,ABOUT,54,YEARS,, R/O,NIMBEGONDI,VILLAGE,, SHIKARIPURA,TALUK,, HOSUR,TALUK,,, SHIVAMOGGA,DISTRICT-577,427, , 4., SRI.,PRAKASHA, S/O,LATE.,HUCHAPPA,PARATHANNANAVARA,, AGED,ABOUT,52,YEARS,, R/O,NIMBEGONDI,VILLAGE,, HOSUR,HOBLI,,SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT-,577,427, , 5., SRI.CHANDRAPPA, S/O,LATE.,BASAPPA,, AGED,ABOUT,76,YEARS,, R/O,16TH,WARD,, KANUR,SHIKARIPURA,TOWN,,, SHIKARIPURA,TALUK,,, SHIVAMOGGA,DISTRICT-577,427, , 6., SRI.,KARIBASAPPA, S/O,LATE.,BASAPPA,, AGED,ABOUT,66,YEARS,, R/O,NELAVAGILU,VILLAGE,AND,POST,, SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT-,577,427, , ((((((((((((HC-KAR, NC:(2026:KHC:39701( WP(No.(15797(of(2026( ( ,,,,,,,,,, , CNR:(KAHC010321492026( ( ( , 7., SRI.,SHASHIDARA, S/O,BASAVARAJAPPA,KADDIPUDIYAR,MANE,, AGED,ABOUT,34,YEARS,, R/O,NIMBEGONDI,VILLAGE,, HOSUR,HOBLI,,SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT-577,427, , 8., SRI.SANNA,GOWDA,PATIL, S/O,RUDRA,GOUDA,PATIL,, R/O,RAGHAVENDRA,COLONY,AREA,, HIREKERURU,TOWN,AND,TALUK, HAVERI,DISTRICT-581,111, , 9., SMT.,RATHNAMMA, W/O,LATE.,LOKAPPA,, AGED,ABOUT,79,YEARS,, R/O,NIMBEGONDI,VILLAGE,, HOSUR,HOBLI,,SHIKARIPURA,TALUK,,, SHIVAMOGGA,DISTRICT-577,427, , 10., SMT.,KOTRAMMA, D/O,LATE.,LOKAPPA,, W/O,DEVENDARAPPA,, AGED,ABOUT,57,YEARS,, R/O,NIMBEGONDI,VILLAGE,, HOSURU,HOBLI,, SHIKARIPURA,TALUK,, SHIVAMOGGA,DISTRICT-577,427, , 11., SMT.,BASAMMA, D/O,LATE.,LOKAPPA,, AGED,ABOUT,53,YEARS,, R/O,MASOOR,VILLAGE,, HIREKERUR,TALUK,, HAVERI,DISTRICT-581,210, , 12., SMT.SAKAMMA, D/O,LATE.,LOKAPPA,, W/O,BASAVARAJAPPA,, AGED ABOUT 49 YEARS, R/O SURAHONNE VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 223 …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR