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IN THE HIGH COURT OF BENCH

Dated this the 10 th day of April 2014

Before

THE HON’BLE MR. JUSTICE A.S.BOPANNA

Writ Petition No.76076/2013 (GM-CPC)

Between:

1. Jayavant, S/o Fakkirappa Gulenavar, Age: 67 years, Occ: Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad.

2. Arjun, S/o Fakkirappa Gulenavar, Age: 62 years, Occ: Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad.

3. Ganapati, S/o Fakkirappa Gulenavar, Age: 82 years, Occ: Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad.

4. Smt. Karevva, W/o Laxman Gulenavar, Age: 72 years, Occ: Household, R/o Halligeri Village, Tq: and Dist: Dharwad. : 2 :

5. Smt. Akkavva, W/o Maruti Gulenavar, Age: 37 years, Occ: Household and Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad.

6. Laxman, S/o Maruti Gulenavar, Age: 22 years, Occ: Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad.

7. Shivappa, S/o Laxman Gulenavar, Age: 47 years, Occ: Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad.

8. Chandru, S/o Laxman Gulenavar, Age: 42 years, Occ: Agriculture, R/o Halligeri Village, Tq: and Dist: Dharwad. …Petitioners

(By Sri. Jagadish Patil, Advocate)

A n d :

Shankarappa, S/o Peerappa Gulenavar, Since deceased by L.Rs.,

1. Smt. Iravva, W/o Shankarappa Gulenavar, Age: 67 years, Occ: Household,

2. Krishnaji, S/o Shankarappa Gulenavar, Age: 52 years, Occ: Mason, : 3 :

3. Kedari, S/o Shankarappa Gulenavar, Age: 49 years, Occ: Mason,

4. Parushram, S/o Shankarappa Gulenavar, Age: 43 years, Occ: Mason,

5. Raju, S/o Shankarappa Gulenavar, Age: 40 years, Occ: Mason,

All R/o Halligeri Village, Tq and Dist: Dharwad.

6. Shivaji, S/o Shankarappa Gulenavar, Age: 40 years, Occ: Agriculture, R/o Halligeri Village, Tq and Dist: Dharwad. …Respondents

(By Sri. Dayanand M.Bandi, Advocate for R1 to R5)

(R 6 – service held sufficient)

This petition is filed under Articles 226 & 227 of the Constitution of praying to set aside the order on I.A.No.3 passed by the Hon’ble I Additional Civil Judge and JMFC, Dharwad, in O.S.No.626/2010 dated 05.12.2012 which is produced under Annexure-F by allowing this writ petition.

This petition coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following: : 4 :

ORDER

The petitioners are assailing the order dated

05.12.2012 passed on I.A.No.3 in O.S.No.626/2010.

The order is impugned at Annexure-F to the petition.

2. Petitioners herein are the plaintiffs in

O.S.No.626/2010. In a suit filed seeking for partition and separate possession of the suit schedule property, the 2 nd defendant has filed an application under Order

XIV Rule 5 of the Civil Procedure Code praying that an additional issue be framed. The application is registered as I.A.No.3. The Court below has allowed the application and an additional issue is framed. The plaintiffs claiming to be aggrieved are before this

Court.

3. Having perused the rival contentions in the suit and the issues that have already been framed, it is seen that though the plaintiffs claim a share in the : 5 :

suit schedule property, there is no issue framed in that regard casting the burden on them. It is no doubt true that the 2 nd defendant has contended that in view of his adoption he has become the absolute owner of the suit property. Insofar as the defence putforth by the 2 nd defendant, issues No.2, 3 and 4 has cast the burden on the 2 nd defendant. Insofar as the case to be proved by the plaintiffs, the additional issue presently framed appears to be in the nature as if the plaintiffs have sought for a declaration of their right over the property. As noticed, the suit is one for partition and separate possession and the additional issue in the nature as framed is not justified. However, an additional issue, in any event, is necessary which shall read as hereunder:

“Whether the plaintiffs prove that they are entitled to a share in the property as contended in the plaint.” : 6 :

Hence, the additional issue, which is dated 05.12.2012, shall be re-cast in the manner as indicated above. To the said extent, the additional issue stands modified and the order impugned herein stands modified to the said extent.

In terms of the above, the petition stands disposed of.

Sd/- JUDGE

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