B GYANPRAKASH S/O. B SIDDANAGOUDA vs. B SIDDANAGOUDA S/O. B HANUMANTH REDDY

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 18th DAY OF AUGUST 2015 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA WRIT PETITION NO.107275 OF 2015(GM-CPC) BETWEEN: B. GYANPRAKASH, S/O B. SIDDANAGOUDA AGE 45 YRS., OCC: EMPLOYEE N JSW R/O ANUGRAHA, I STAGE, RAGHVENDRA COLONY, BALLARI. ... PETITIONER (BY SRI. SRINAND A.PACHHAPURE, ADV.) AND: 1. B. SIDDANAGOUDA, S/O B. HANUMANTH REDDY AGE 71 YRS., OCC: RTD EMPLOYEE, R/O D.NO.54/157, AASHIRWAD, 4TH CROSS NEHRU COLONY, BALLARI. 2. B. VEDHAVATHI, W/O B. SIDDANAGOUDA AGE 65 YRS., OCC: HOUSEHOLD, R/O D.NO.54/157, AASHIRWAD, 4TH CROSS NEHRU COLONY, BALLARI. 3. B. RAMESHGOUDA, S/O B. SIDDANAGOUDA, AGE 43 YRS., OC: BUSINESS, R/O D.NO.54/157, AASHIRWAD, 4TH CROSS, NEHRU COLONY BALLARI. 4. B. MAHESHGOUDA, S/O B. SIDDANAGOUDA AGE 40 YRS., OCC: EMPLOYEE IN USA, R/O BANAPUR, MAHESH 2G., 253, NORTH ARABELLAWAY

: 2 : ST. JOHN’S FLORIDA STATED, USA ZIP CODE 32259 5. SMT. SHEELA, W/O B. RAMESHGOUDA AGE 38 YEARS, OCC: HOUSEHOLD R/O D.NO.54/157, AASHIRWAD, 4TH CROSS, NEHRU COLONY, BALLARI. .. RESPONDENTS THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26/6/2015 PASSED ON I.A.NO.V IN O.S.NO.133/2013 BY THE II ADDL. SENIOR CIVIL JUDGE, BALLARI MARKED AT ANNEXURE-A RESPECTIVELY AND GRANT ANY OTHER RELIEF AS DEEMED FIT IN THE ENDS OF JUSTICE. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner, who is the plaintiff in O.S.No.133 of 2013 on the file of the Principal Senior Civil Judge and JMFC, Ballari, had filed a suit for partition and separate possession of his share in the undivided joint family properties against the defendants. Defendant Nos.1 to 5, who had appeared before the Court, had taken up a contention that the suit item No.1 of plaint B schedule properties are the self acquired property of defendant No.1 by virtue of a registered sale deed dated 03/03/1973. The plaintiff, in order to prove his case, appears to have filed an application in

: 3 : I.A.No.V under Rule 80(1) of the Karnataka Civil Rules of Practice read with Section 151 of the Code of Civil Procedure seeking to summon the Joint Director(Administration), Department of Agriculture No.1, Ballari, to produce assets and liability submitted by defendant No.1 and the income tax returns submitted by him in order to establish that the ‘B’ Schedule properties are his self acquired properties. The said application came to be dismissed by the trial Court. Calling in question the said order, the present petition is filed. 2. The trial Court has dismissed the said application on the ground that since the burden is on defendant No.1 to prove the said issue, that is, ‘B’ schedule properties are self acquired properties of defendant No.1, therefore, there is no need to allow the said application. The said observation by the trial Court, in my opinion, is not proper and correct because for the simple reason that the first issue framed shows, that the trial Court has cast the initial burden on the plaintiff to prove that the suit schedule properties are Hindu undivided joint family properties.

: 4 : However, as could be seen from the records, the plaintiff has not led his evidence. The plaintiff has to lead his evidence and explain as to how those documents are necessary and thereafter has to make such an application, if necessary, for the purpose of securing any documents. Therefore, in my opinion, the said application is too premature in nature. Hence, the order passed by the trial Court has to be upheld for the time being and the petition deserves to be dismissed. However, it is made clear that after completion of the plaintiff’s evidence, he is at liberty to make such application, if necessary once again, and the Court shall pass appropriate orders in accordance with law. With the above said observations, petition is dismissed. Sd/- JUDGE kmv