SOMASHEKAR H.V. Vs. KANAKARATHNAMMA

JUDGEMENT

(1.) These captioned writ petitions are filed questioning the common order passed by the learned Judge on I.A.Nos.16 and 17. I.A.No.16 was filed by the respondent - defendant requesting the Court to treat the issue relating to the resjudicata as a preliminary issue and relegate both the parties to lead evidence on this issue. I.A.No.17 was filed by the petitioner - plaintiff seeking amendment of the plaint and by way of proposed amendment, the petitioner - plaintiff now intends to set up a plea of adverse possession. The learned Judge has allowed I.A.No.16 and has dismissed I.A.No.17. The petitioner - plaintiff has questioned these common orders.

(2.) The present petitioner - plaintiff has instituted suits for declaration and injunction in O.S.No.511/2011, O.S.No.517/2011 and O.S.No.519/2011. The petitioner - plaintiff claims that suit schedule property bearing Sy. No.5/1 measuring 1 acre 19 guntas including 1 gunta karab land situated at Halanayakanahalli Village, Varthur Hobli, Bengaluru South Taluk now Bengaluru East Taluk, Sy. No.3/1 measuring 5 acres 28 guntas including 9 guntas karab situated at Dodda Kannelli Village, Varthur Hobli, Bengaluru South Taluk, now in Bengaluru East Taluk and Sy. No.33/4 measuring 3 acres 33 guntas situated at Chikka Kannelli Village, Varthur Hobli, Bengaluru South Taluk, now in Bengaluru East Taluk are all ancestral properties of the petitioner's family. At para No.2 of the plaint, the petitioner - plaintiff specifically contended that the suit schedule properties were originally owned by grate paternal grand father of the plaintiff namely Nanjundappa. It is further specifically pleaded that during the life time of plaintiff's grand father, there was an oral family arrangements in the family and after his death, plaintiff's father inherited the suit schedule property and the suit schedule property bearing Sy. No.5/1 measuring 1 acre 19 guntas was allotted to the plaintiff's father's share and on these set of pleadings, the petitioner - plaintiff asserts title and also claims possession over the suit schedule properties.

(3.) On receipt of summons, the present respondent - defendant has tendered appearance and has contested the suit by filing written statement. The respondent - defendant has stoutly denied the entire averments made in the plaint. At para No.5 of the written statement, the respondent - defendant has narrated the previous litigation between the parties and all minute details are reflected in the written statement indicating that the great grandfather of the petitioner - plaintiff herein has suffered a decree way back in the year 1971, which was confirmed by this Court in SA No.716/1957. Therefore, the respondents - defendants contend that the petitioner's grandfather having suffered a decree and in the said suit, respondent's - defendant's grandfather was held to be the absolute owner of the suit schedule property and the suit schedule property was found to be self acquired property of the husband of present respondent - defendant herein. Therefore, the respondent - plaintiff by way of defence specifically contended that the present suit is hit by provisions of Sec. 11 of CPC. Therefore, requesting the Court to treat the issue relating to resjudicata as a preliminary issue.