THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY CRP NOs.5659 OF 2008 & 149 OF 2009 COMMON ORDER: 1 Both these CRPs arise out of an order dated 03.12.2008 passed in I.A.No.499 of 2008 in O.S.No.24 of 2006 on the file of the Senior Civil Judge, Jangaon, whereby the said application filed by the Petitioner under Order 14 Rule 5 CPC for framing of additional issues was allowed in part, permitting the proposed first additional issue to be framed and refusing to frame the other additional issues. Aggrieved by the same, the plaintiff preferred the CRP 5659 of 2008 and the defendants filed CRP No.149 of 2009. 2 As these two CRPs arise out of the same order, they are heard together and are being disposed of by this common order. 3 Heard the learned counsel for the parties in both the CRPs and perused the material on record. 4 The plaintiff filed the suit for partition of plaint A, B and C schedule properties into six equal shares and for separate possession of one such share. According to the plaintiff the schedule properties are joint family properties. The first defendant filed written statement contesting the suit and inter alia contending that first defendant is the absolute owner of the plaint A schedule property and that the same is his self acquired property and as such the plaintiff and defendants 2 to 5 have no right to claim a share therein. Sixth defendant filed a separate written statement and contended that the first defendant executed a registered agreement of sale – cum – GPA dated 02.03.2005 in favour of the 6th defendant for legal necessity and for valuable consideration and the 6th defendant is a bonafide purchaser of the plaint A schedule property and hence the same is not liable for partition. 5 Based on the pleadings previously the following issues were settled. 1. Whether the plaintiff is entitled for partition and for separate possession of plaint schedule property? 2. Whether the plaintiff is entitled to cancellation of agreement of sale cum General Power of Attorney dated 02.03.2005 by declaring as null and void, illegal, devoid of consideration and unenforceable? 3. Whether the plaintiff is entitled for permanent injunction restraining the defendant Nos.1 to 6 from alienating and creating third party interest over the suit ‘A’ to ‘C’ schedule properties? 4. To what relief? 6 It is not in dispute that previously when the plaint was sought to be amended the matter was carried to this court by way of revision vide CRP No.5353 of 2006 and this court by order dated 13.02.2007 permitted the amendment to the plaint as proposed in I.A.No.243 of 2006 and observed that the amendment was necessitated because the 6th defendant is alleging that the first defendant had put him in possession of the plaint A schedule property in pursuance of an agreement of sale executed in his favour by the first defendant. In the said order it was further observed that the issue to be decided in the suit would be whether the plaint A, B and C schedule properties are the joint family properties or not and if the plaint schedule properties are held to be joint family properties, only question whether the alienation of the plaint A schedule property by the first defendant is binding on the revision Petitioner and others would arise. Subsequent to the amendment of the pleadings, the plaintiff proposed the following additional issues: 1. Whether the suit A schedule property is the self acquired property of the defendant No.1, as such neither the plaintiff nor the defendants 2 to 5 have right over the property? 2. Whether the defendant No.6 is a bonafide purchaser of suit A schedule property having purchased the same along with other land through registered agreement of sale cum general power of attorney bearing document No.416 of 2005, dated 02.03.2005 of the office of Sub Registrar, Jangaon by paying Rs.2,35,000/- in cash to defendant No.1on the date of execution and registration of document i.e. on 02.03.2005 as stated in the document and whether it is a valid and enforceable document? 3. Whether the first defendant has executed the document No.416 of 2005 dated 02.03.2005 for legal necessity having received the consideration as stated therein in favour of 6th defendant voluntarily and without any misrepresentation, fraud and cheating by the defendant No.6? 4. Whether sixth defendant is absolute owner and possessor of suit A schedule property by virtue of document bearing No.416 of 2005 dated 02.03.2005 of the office of the Sub Registrar, Jangaon? 7 In view of the specific contentions of the first defendant that the plaint A schedule property is his self acquired property and as such neither the plaintiff nor the defendants 2 to 5 have any rights therein and therefore the said plaint A schedule property is liable to be excluded from partition, the proposed first additional issue would certainly arise for consideration. The contention of the learned counsel for the first defendant / revision Petitioner in CRP No.149 of 2009 that the said first additional issue does not arise, is untenable. It is however made clear that framing of additional issue would not dislodge any presumption available under law in favour of either of the parties nor is the burden of proof shifted from the plaintiff to the first defendant or vice versa. The first issue as framed previously whether the plaintiff is entitled for partition and for separate possession of the plaint schedule property is couched in general terms. The 2nd issue as framed originally i.e. whether the plaintiff is entitled to cancellation of agreement of sale cum General Power of Attorney dated 02.03.2005 by declaring as null and void etc does not specifically cover the contention of the first defendant that the plait A schedule property is his self acquired property. Hence the necessity to frame the first additional issue as proposed would certainly arise. 8 The 2nd proposed additional issue namely whether the defendant No.6 is a bonafide purchaser of suit A schedule property is covered by the 2nd issue originally framed. Question as to whether or not the 6th defendant is a bonafide purchaser of plaint A schedule property would certainly fall for consideration while considering the issue as to whether the plaintiff is entitled for cancellation of the agreement of sale – cum – GPA. The other proposed additional issues 3 and 4 are superfluous and overlapping and they also get covered by the original issue No.2. Hence it is not necessary to frame the said proposed additional issues. 9 In the circumstances it is held that the original issues as framed and the first proposed additional issue as to whether the plaint A schedule property is self acquired property of the first defendant and as such neither the plaintiff nor the defendants 2 to 5 have any right over the property would cover all the contentions raised by both the parties and the other proposed additional issues are not necessary. The impugned order permitting the framing of first additional issue and refusing to frame the other additional issues does not therefore call for any interference by this court. 10 In the result both the CRPs are dismissed. No costs. ---------------------------- G.V. SEETHAPTHY, J. 06.06.2011 Kvsn