Sri. Bettappara Siddaramappa, Bettappara Thippeshi and Manjunath Siddaramappa vs B. Rudresh and Others

S. Abdul Nazeer

These writ petitions are directed against the order on I.A. Nos. 15 and 16 dated 13.1.2011 in O.S. No. 155/2009 on the file of the J Addl. District and Sessions Judge at Davanagere, whereby the application filed by respondent No. 1/defendant No. 1 for recasting of the issues has been allowed. The plaintiffs filed the above suit for a declaration that they are the owners of the suit schedule property after holding that document dated 12.7.2001 is executed by them as security for the loan advanced by the 2nd respondent and for certain other reliefs. The 1st defendant has filed written statement contending that the document in question is an absolute sale deed. The court below has framed the issues twice. The defendant filed the above applications for recasting of the issues. Therefore, the court below has again framed the issues as per Annexure-T. The two relevant issues are as under;

(i) Whether the plaintiffs prove that the document dated 12.7.2001 is executed as a security document for having borrowed Rs. 65,000/- It is in fact an usufractury mortgage deed, it never intended to act as a sale deed as alleged in the plaint?

(ii) Whether the defendant Nos. 1 and 2 prove that the plaintiffs have sold the suit schedule properties in favour of 2nd defendant for total sale consideration of Rs. 64,000/- and 1st plaintiff executed sale deed dated 12.7.2001 for himself and also on behalf of minor plaintiff Nos. 2 and 3 as contended in para No. 7(a) of the written statement?

It is clear from issue No. 1 that the burden is cast on the plaintiffs to prove that the document dated 12.7.2001 is executed as a security document for having borrowed Rs. 65,000/- and is in fact usufractuary mortgage deed and it never intended to act as a sale deed as alleged in the plaint. Issue No. 3 casts the burden on defendant Nos. 1 and 2 to establish that the plaintiffs have sold the suit schedule property in favour of the 2nd respondent and the 1st plaintiff executed sale deed dated 12.7.2011 for himself and also on behalf of defendant Nos. 2 and 3 as contended in 7(a) of the written statement. In my opinion, issues were cast properly on the basis of the pleadings of the parties. I do not find any error in the impugned order. Writ petitions fail and are accordingly dismissed. No costs.