Allowed

Shahaji Rao S/O Sakharam Patil v. Droupati W/O Chandrakant Udnoor

Karnataka HC22 Jul 2019WP/202692/2019

Case brief

AI extract

What is this about?

The High Court quashed the First Appellate Court's order rejecting a plaint amendment application. It directed the appellate court to reconsider the application on merits by appreciating evidence alongside the main appeal, noting that possession issues must be decided after adjudicating title and factual history.

What did the court decide?

The order of the First Appellate Court rejecting the amendment application was set aside and the application restored to consider the amendment on merits alongside the main appeal.

Shahaji Rao S/O Sakharam Patil Vs Droupati W/O… — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 22^ND DAY OF JULY 2019

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BEFORE

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THE HON’BLE MR. JUSTICE K.N.PHANEENDRA

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W.P.No.202692/2019 (GM-CPC)

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Between:

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Shahaji Rao S/o Sakharam Patil, Age 68 years, Occ. Trade and Agriculture, R/o H.No.8-1295/11, Situated at Neharu Gunj, Kalaburagi.

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… Petitioner

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(By Sri B.D.Hangarki, Advocate)

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And:

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Droupati W/o Chandrakant Udnoor, Age 54 years, Occ. Household, R/o Jewargi Road, Kalaburagi – 585 101.

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… Respondent

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(By Sri A.M.Biradar, Advocate)

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This Writ Petition is filed under Articles 227 of the Constitution of India, praying a writ of certiorari be

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issued quashing the impugned order passed on IA filed under Order VI Rule 17 read with Section 151 of CPC by the Court of the III Addl. District and Sessions Judge at Kalaburagi dated 21.03.2019 in R.A.No.42/2015 produced at Annexure ‘F’ and thereby consequently allow the said I.A.

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This petition coming on for preliminary hearing this day, the Court made the following:

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O R D E R

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Heard the learned counsel for the petitioner and

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the counsel for the respondent.

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This writ petition is filed challenging the order passed by the first Appellate Court in R.A.No.42/2015 dated 21.03.2019 in rejecting the application filed by the appellant under Order VI Rule 17 read with Section 151 of Code of Civil Procedure.

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On careful perusal of the impugned order of the Appellate Court it has taken up the ground that the Trial Court has clearly given a finding on the issue with regard to the possession that the defendant has been in

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possession and enjoyment of the suit schedule property and further the appellant has not stated when actually he was dispossessed from the property in order to seek possessory relief in the plaint by way of amendment.

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On careful perusal of the plaint averments,

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the plaintiff has sought the following reliefs ;-

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It be declared that the plaintiff is the owner and possessor of the suit land described in Para – 2 of the plaint;

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A decree of perpetual injunction be granted, restraining the defendant from interfering with the possession of the plaintiff over the suit land be granted;

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A decree for perpetual injunction restraining the defendant from undertaking any construction over the above site be granted.

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A decree for mandatory injunction be granted re remove the construction if any made over the portion of the suit land shown red colour in the annexed sketch map.

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Costs of the suit be awarded.

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Any other relief to which the plaintiff is entitled may kindly be granted.

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The defendant has also taken up the

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contention that plaintiff was never in possession of the property and the defendant had been in possession and enjoyment of the property and he had constructed the house in the suit property. The suit was dismissed by the Trial Court, challenging the findings given on the issues the appellant has preferred the appeal. Therefore, what were the findings given by the Trial Court is again subject to decision of the Appellate Court on merits on those issues.

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In this back ground the Appellate Court ought to have applied its mind whether the said amendment application is required to be considered or not.

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The plaint averments in the prayer discloses

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that the plaintiff apprehended that the defendant may put-up construction in the suit property. Therefore he has not only sought for perpetual injunction but also he prayed for a direction to the defendant from undertaking any construction over the site granted, or if already constructed for demolition of the same.

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Therefore, in my opinion these are all the factual aspects whether the said prayer presupposes that the defendant has been putting up construction during the pendency of the suit or he had already constructed the house and in possession of the same. All these things ought to have been considered by the Appellate Court only after hearing the appeal on merits. It virtually prejudged the issue because in the orders passed by the Appellate Court it has virtually accepted the findings given by the Trial Court with regard to the possession that ought to have been done by the Appellate Court only after appreciating the oral and

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documentary evidence adduced by the parties. The Appellate Court has to give finding with regard to the findings given by the Trial Court on all the issues. Therefore, under what circumstances the plaintiff has prayed for the amendment of the plaint has to be tested in the light of the pleadings and evidence adduced by the parties before the Trial Court and also the undertaking given by the defendant that if the plaintiff succeeds he would demolish the building constructed by him and also deposited an amount of Rs.10.00 lakh in this regard.

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These are all the aspects that should be

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weighed along with the other materials on record i.e., the plaint averments, written statements and as well as the evidence adduced by the parties, without reappreciating these materials the Court may not be in a position to ascertain whether amendment is required or not and when actually the building has been constructed and whether the plaintiff was in possession

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or the defendant has constructed the said building which is a plot or a land.

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It also to be born in mind that so far as the

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plots are concerned or sites are concerned the possession always travel behind the title of the property. Therefore, under the above said circumstances, without expressing anything on merits of the case with regard to the amendment application, I feel it is just and necessary to set-aside the order passed by the First Appellate Court with a direction that the said application has to be considered along with the merits of the appeal. With these observations the following order is passed ;-

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ORDER

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The writ petition is allowed.

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The order passed by the First Appellate Court

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under Order VI Rule 17 read with Section 151 of Code

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of Civil Procedure in R.A.No.42/2015 is hereby set aside.

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The application filed under Order VI Rule 17 of Code of Civil Procedure filed by the appellant is restored on to the file of First Appellate Court with a direction to reconsider the said application on merits along with the main appeal in the light of the observations made in the body of this order.

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Further it is directed that the Appellate Court should not persuade itself in any manner with regard to any observation made by it while disposing of the application under Order VI Rule 17 read with Section 151 of Code of Civil Procedure.

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Sd/JUDGE

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Shahaji Rao S/O Sakharam Patil v. Droupati W/O Chandrakant Udnoor

Case brief

What is this about?

What did the court decide?

Shahaji Rao S/O Sakharam Patil v. Droupati W/O Chandrakant Udnoor

Case brief

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What did the court decide?

What the court decided

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