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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF DECEMBER, 2015 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION Nos.43176-177/2015 (GM-CPC)
BETWEEN:
SRI. NAGESH.M
SON OF SRI. P. MUNIAPPA
AGED ABOUT 32 YEARS,
SRI. SRIRAM.M
SON OF SRI. P. MUNIAPPA
AGED ABOUT 34 YEARS,
BOTH ARE RESIDING AT:
NO.48, 4TH CROSS,
4TH BLOCK, AYYAPPANAGAR,
BEHIND SRI. KRISHNA COMMUNITY HALL, K.R.PURAM,
BANGALORE – 560 036. ...PETITIONERS
(BY SRI.R.R.DEVENDRA GOWDA, ADVOCATE)
AND:
SMT. THONIPURAKKAL VISHALAKSHY
DAUGHTER OF LATE. M.V.KUNHIRAMAN
AGED ABOUT 67 YEARS,
RESIDING AT:
‘CHAITANYA’,
M 6/S-13-KSHB COLONY,
P.O. MALAPARAMBA,
CALICUT – 673 009.
KOZIKODE DISTRICT, KERALA.
SRI. N. SHIVAPPA
SON OF SRI. NARAYANAPPA
AGED ABOUT 59 YEARS,
RESIDING AT:
CHANNASANDRA VILLAGE,
KADUGODI POST,
BANGALORE – 560 067.
SRI. BABU RAO
SON OF SRI. VEERAIAH
AGED ABOUT 64 YEARS,
RESIDING AT:
NO.34, AYYAPPANAGAR,
DEVASANDRA MAIN ROAD,
K.R.PURAM,
BANGALORE – 36.
…..RESPONDENTS
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 227 OF CONSTITUTION OF INDIA SET ASIDE THE ORDER DT.23.9.2015 PASSES IN O.S.NO.5084/2009 VIDE ANNX-A PASSED BY THE XII ADDL. CITY CIVIL JUDGE (CCH 27) BANGALORE, PASSED ON I.A. FILED BY THE PETITIONERS UNDER ORDER XI RULE 14 R/W SEC. 151 OF CPC SEEKING DIRECTION FROM THE LEARNED TRIAL JUDGE TO DIRECT THE R-1 TO PRODUCE THE ORIGINAL DOCUMENTS WHICH ARE IN HER CUSTODY IN O.S.NO.5084/2009.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Heard Sri.Devendra Gowda, learned counsel appearing for petitioners, who are defendants 3 and 4 in O.S.No.5084/2009. Perused the case papers.
First respondent herein has filed the suit in question for declaration namely to declare that she is the absolute owner of suit schedule property and also to declare that sale deed executed by defendants 1 and 2 are not binding on her and be treated as null and void and for a further relief of delivery of vacant possession of Schedule A and B properties in her favour and direction to defendants 3 and 4 to demolish the structure put up by them in the suit schedule property and for perpetual injunction to restrain them from alienating suit schedule property. During the pendency of suit, an application under Order XI Rule 14 read with Section 151 CPC came to be filed by defendants 3 and 4 seeking for a direction to the plaintiff to produce following two (2) documents:
Income Tax returns of Plaintiff’s husband, for the financial years 1991-92, 1992-93, 1993-94 and 1994-95.
Original Sale Agreement entered between Plaintiff with previous owner Sri.Sheik Ameer Saheb and Pyaroo Saheb.
Said prayer was resisted to by plaintiff and after adjudication trial Court has rejected said application on the ground that burden is on the plaintiff to prove each of the issue arising out of pleadings and when plaintiff is basing her claim on a registered sale deed Ex.P-1 earlier agreement of sale which had culminated in execution of Ex.P-1 would have no bearing to the facts of present case and as such, rejecting prayer of defendants 3 and 4 impugned order came to be passed.
It is the contention of Sri.Devendra Gowda, learned counsel appearing for petitioners that plaintiff had claimed that she had entered into a sale agreement
in respect of suit schedule property during the year 1993 and sale consideration having flown from her husband, had been reflected in his income tax returns and on account of same having not been produced by plaintiff had compelled defendants 3 and 4 to seek for production of these documents from plaintiff. Hence, he prays for allowing writ petition.
Having heard the learned counsel appearing for petitioners i.e., defendants 3 and 4 this Court is of the considered view that order passed by trial Court does not suffer from any error, inasmuch as, these defendants had sought for original sale agreement entered into between plaintiff with her previous vendor, who is said to have sold the suit schedule property in favour of plaintiff. Subsequent to said sale agreement (if any) has resulted in execution of sale deed - Ex.P-1. Rights of parties, if any, between plaintiff and her vendors have got subsumed in the sale deed, Ex.P-1.
In the instant case, plaintiff is claiming that she is the owner of suit schedule property and to declare that sale deeds executed by defendants 1 and 2 as not binding on her. As such, burden is on the plaintiff to prove her claim and for this precise reason trial Court has arrived at a conclusion that agreement of sale sought for production would have no bearing on the claim of plaintiff. Hence, rejection of application by trial Court cannot be faulted with. I find no error committed by Court below. Writ petition lacks merit and it stands dismissed.
SD/- JUDGE