SMT. INDUMATHI vs. SRI. K. R. SHIVAKUMAR

SMT. INDUMATHI W/O A NATARAJ AGED ABOUT 72 YEARS R/AT DOOR NO 9, 53-A CROSS 16TH MAIN, III Y BLOCK RAJAJINAGAR BANGALORE 560016

SMT. VIJAYA W/O B MALLAPPA AGED 64 YEARS R/AT C/O D NO 9, 53-A CROSS III Y BLOCK, RAJAJINAGAR BANGALORE 560016

SMT K R NAGARATHNA W/O S MUDDANNA AGED 58 YEARS R/AT NO.2574, 7TH A MAIN VIJAYANAGAR, V STAGE BANGALORE 560040

SMT K R MALA W/O K A MANJUNATH AGED 54 YEARS R/AT DOOR NO 2718 GOWRI NILAYA, II MAIN

SRI K R PRABHUKUMAR S/O SRI K B RUDRAPPA AGED 54 YEARS PURANTAR HOSPITAL ROAD MCC A BLOCK DAVANAGERE 577004 6. SMT K R MADHU W/O N V GIRISH AGED 55 YEARS R/A DOOR NO.1/1 34TH CROSS, RAJAJINAGAR BANGLAORE 560016 7. SMT SUNANDA R GUJJAR W/O RAJJANNA GUJJAR R/AT C/O DOOR NO.1/1 34TH CROSS JOGANAHALLI II BLOCK RAJAJINAGAR BANGALORE 560016 8. HANUMAKKA W/O LATE K THIPANNA AGED 73 YEARS R/AT KELAGOTE CHITRADURGA 577501 9. SMT K T REKHA W/O K R THIPPESH AGED 61 YEARS R/AT K B R COMPLEX NEAR TRISHUL THEATRE POONA BANGALORE ROAD DAVANAGERE 577002 10. SMT K S SHOBHA W/O K R SHIVAKUMAR AGED 71 YEARS R/AT DOOR NO 1991

The present petitioners have instituted a suit for partition and separate possession in O.S.No.26/2010. The petitioners contend that the suit schedule properties are joint family ancestral properties of plaintiffs and defendants. The present petitioners have also contended that the properties that were allotted in a family partition dated 15.10.1959 to the share of first defendant are ancestral and joint family properties and therefore, plaintiffs claim that they are entitled for 1/13th share each in the suit schedule properties.

The defendants, on receipt of summons, have tendered appearance and have filed written statement. The defendants have stoutly denied the entire averments made in the plaint and have taken a specific contention that the properties mentioned in the plaint are the absolute properties of defendants and therefore, it is contended by defendants that

When the matter was set in for cross- examination of defendants, the present petitioners/plaintiffs have come up with the present application.

The learned Judge having examined the rival contentions has rejected the application. While rejecting the application, the learned Judge has held that the burden is on the defendants to establish that suit schedule properties are their absolute properties. The learned Judge has also recorded a finding that the evidence on record is sufficient to decide the actual lis between the parties. It has also reserved liberty to secure the said documents if required by the Court.

Heard learned Counsel for the petitioners and learned Senior Counsel appearing for respondents and perused the order under challenge.

I have also given my anxious consideration to the issues framed in the present suit. It would be

Whether the defendants No.1 to 6 prove that the properties mentioned in para 17, 18 and 22 to 24 of the written statement are absolute properties?

Whether the defendants No.1 to 6 prove that plaintiffs No.1 to 3 are not entitle any share as contended in para 29 of the written statement?

Whether defendants No.2 and 3 are prove that suit schedule item No.11 property is their self acquired property?

Whether the defendants No.2 to 6 prove that item No.15 of suit schedule property is their property acquired out of their individual income?

Whether the defendants No.2 to 6 prove that item No.16 of the suit schedule property is self acquired property of defendants No.3 and 4?

Whether the defendants No.2 to 6 and 9 prove that item No.17 of suit schedule property is absolute property of defendant No.9?

Whether the defendants 2 to 6 and 10 prove that item No.18 of suit schedule property is self acquired property of defendant No.10?

Whether the defendants 2 to 6 and 11 prove that item No.19 of suit schedule property is self acquired property of defendant No.11?

If issue Nos.6 and 7 and additional issues No.1 to 6 are examined, this Court would find that the burden is cast on defendants No.1 to 6 to prove that the suit schedule properties are their absolute properties. If plaintiffs have discharged their initial burden, the onus would invariably shift on to the defendants. In view of pleadings set up in the written statement, the learned Judge has already framed issue Nos.6 and 7 and additional issues and therefore, the said burden has to be discharged by defendants to non-suit the plaintiffs. Therefore, the question of directing the defendants to furnish all the documents in the present set of facts and circumstances is unwarranted.

Hence, I am of the view that the learned Judge was justified in rejecting the application. If

At this juncture, learned Senior Counsel has also brought to the notice of this Court that the co- ordinate Bench of this Court while deciding W.P.No.1761/2021 c/w W.P.No.2141/2021 disposed of on 09.11.2021 has issued a direction to the Court below to decide the case within nine months.

Therefore, I find some force in the submission made by the learned Senior Counsel. If there is already a direction issued by the co-ordinate Bench of this Court, the parties shall co-operate for an early disposal of the case, in terms of the directions issued by the co-ordinate Bench of this Court.