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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 18TH DAY OF JUNE 2018 BEFORE THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NOS.103299-103301/2018 (GM-CPC) BETWEEN
K. GIRIMALLAPPA S/O KENGANAVARA THINDAPPA AGE:76 YEARS, OCC:AGRICULTURE, R/O H.NO.1226, NEAR GOVT HOSPITAL, KOTTUR, TAL:KOTTUR, DIST:BELLARY.
...PETITIONER
(BY SRI. SANGAMESH S. GHULAPPANAVAR, ADVOCATE)
AND
SMT.SANNA VEERAMMA W/O. K MALLAPPA AGE:71 YEARS, OCC:HOUSEHOLD WORK, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. SHIVAKUMAR, S/O. K MALLAPPA, AGE:54 YEARS, OCC:AGRICULTURE, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. THIPPESWAMY, S/O. K MALLAPPA AGE:46 YEARS,
2 OCC:AGRICULTURE, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. JATHAPPA, S/O. KENGANAVARA THINDAPPA AGE:70 YEARS, OCC:AGRICULTURE, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. GANGAMMA, D/O. K THINDAPPA AGE:76 YEARS, OCC:HOUSEHOLD WORK, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. SOWBHAGYAMMA, D/O. K THINDAPPA AGE:69 YEARS, OCC:HOUSEHOLD WORK, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
H. GOWRAMMA, D/O. K THINDAPPA AGE:74 YEARS, OCC:HOUSEHOLD WORK, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
U. SHARADA @ KOTRAMMA, D/O. K THINDAPPA AGE:66 YEARS, OCC:HOUSEHOLD WORK, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
A. KRISHNAMURTHY SETTY, S/O. SATHYANARAYANA SETTY, AGE:46 YEARS, OCC:MERCHANT R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
3 10. V. HARISH KUMAR, S/O. VANKADARI KOMARAPPA SETTY AGE: YEARS, OCC:MERCHANT R/O. 2ND WARD, GANDHI CIRLCE, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
M. NAGARAJU, S/O. MALLAPPA, AGE: YEARS, OCC:AGRICULTURE, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
KADLI VEERANNA , S/O. KADLI KOTRABASAPPA AGE: 68 YEARS, OCC:MERCHANT, R/O. KADLERA ONI, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. KANTHARAJA SETTY, S/O. HANUMANTHA SETTY, AGE:61 YEARS, OCC:MERCHANT, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
SMT. SHEELVANTHARA AMRUTHAMMA W/O. JAMBAIAH, AGE:66 YEARS, OCC:HOUSEHOLD WORK, R/O. SINECURE, 5TH WARD, AGADI STREET, KOTTUR, TAL:KOTTUR, DIST:BELLARY.
M. ANOOP S/O. M VISHWANATH SETTY AGE:46 YEARS, OCC:MERCHANT, R/O.KOTTUR, TAL:KOTTUR, DIST:BELLARY.
M. JAYAPRAKASH S/O. M SANNA HANUMANTHAPPA SETTY AGE:51 YEARS, OCC:MERCHANT,
4 R/O.KOTTUR, TAL:KOTTUR, DIST:BELLARY.
DR. B. GURUBASAPPA S/O. KOTRAPPA AGE:69 YEARS, OCC:RTD MEDICAL OFFICER, R/O. RENUKA EXTENSION, KOTTUR, TAL:KOTTUR, DIST:BELLARY.
B. NIRANJANA, S/O. DR. B. GURUBASAPPA, AGE:40 YEARS, OCC: ENGINEER, R/O. RENUKA EXTENSION, KOTTUR, TAL:KOTTUR, DIST:BELLARY.
SMT. SAVITHA D/O. DR. B. GURUBASAPPA AGE:38 YEARS, OCC:HOUSEHOLD WORK, R/O. RENUKA EXTENSION, KOTTUR, TAL:KOTTUR, DIST:BELLARY.
K. BASAVARAJA, S/O. AMBANNA, AGE:74 YEARS, OCC:MERCAHNT, R/O. KOTTUR, TAL:KOTTUR, DIST:BELLARY.
...RESPONDENTS
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 14.03.2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT KUDLIGI IN O.S.NO.1/2012 AT ANNEXURE-E AND CONSEQUENTLY ALLOW I.A.NO.16; AND QUASH THE ORDER DATED 04.04.2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT KUDLIGI IN O.S.NO.1/2012 AT ANNEXURE-J AND CONSEQUENTLY ALLOW I.A.NO.19 AND 20.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
5 ORDER
Petitioner is plaintiff in O.S. No.1 of 2012. The said suit has been filed by him seeking the relief of partition and separate possession of the suit schedule properties. During the pendency of the suit, at the stage of trial, an application under Order XVI Rule 1 to 4 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) was filed seeking issuance of witness summons to certain official witnesses so as to give evidence on behalf of the plaintiff. The said application (I.A.No.16) was dismissed by order (Annexure-E) dated 14.03.2016. Thereafter, petitioner, once again, invoked the very same provisions to file two more applications (I.A. No.19 and I.A.No.20) seeking the very same reliefs. Those applications have also been dismissed by impugned order dated 04.04.2018. The said orders are assailed in these writ petitions.
I have heard learned counsel for the petitioner/ plaintiff in the suit and perused the material on record. It is noted that the petitioner intends to prove that KMK
6 Commission Agency Firm is a joint family property. In that regard he seeks to prove that the income from the said Commission Agency is also the joint family property and that there is no division of property, in the sense that the said KMK Commission Agency was not the subject matter of partition and that there has been no prior partition between the members of the family. The petitioner/plaintiff’s object of summoning the Income Tax Officer, the Sales Tax Officer and the Secretary of A.P.M.C, Kottur, along with requisite documents, is to prove that the income from the KMK Commission Agency is joint family income. In order to achieve the said purpose, it is wholly unnecessary on the part of petitioner to seek witness summons to the said official witnesses. The burden is on the plaintiff to prove that the KMK Commission Agency Firm is joint family property so as to seek a share in the income and assets of the said Agency/Firm. If the petitioner discharges his initial burden, the onus would shift on the defendant to rebut the same. In that view of the matter, the Trial Court was justified in dismissing the
7 applications as the said witnesses can, in no way, assist in discharging his (plaintiff’s) initial burden to prove that the said Agency Firm is joint family property. In fact, the Trial Court has observed that filing of the said application is only to prolong the matter further. I do not find any merit in the writ petitions. Writ petitions are dismissed.
Sd/- JUDGE
Kms