Allowed

Sri. Hombaiah v. Smt. Rangamma

Karnataka HC22 Oct 2021WP/11839/2020

Case brief

AI extract

What is this about?

High Court of Karnataka quashed two interim orders allowing amendment of a preliminary and final decree in a partition suit. It held that exclusions of sold/pot kharab land added during interim proceedings went to merits and affected parties' rights, exceeding the scope of Section 152 CPC for clerical errors.

What did the court decide?

Impugned orders of the trial Court allowing amendment of preliminary and final decrees are quashed; applications for amendment are dismissed.

Sri. Hombaiah Vs Smt. Rangamma — Partition | Karnataka HC (2021)

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1 W.P.No.11839/2020 C/W W.P.No.26339/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL WRIT PETITION NO.11839/2020 (GM-CPC) C/W WRIT PETITION NO.26339/2018 (GM-CPC)

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IN WRIT PETITION NO.11839/2020

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BETWEEN:

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SRI.HOMBAIAH S/O LATE HOMBAIAH AGED ABOUT 63 YEARS R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109 ... PETITIONER

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(BY SRI Y.K.NARAYANA SHARMA, ADVOCATE)

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AND:

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SMT.RANGAMMA

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W/O REVAIAH D/O BYATAMMA & HOMBAIAH AGED ABOUT 56 YEARS R/AT SHESHAGIRI HALLI BIDADI HOBLI, RAMANAGARA TALUK – 562 109

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ANAND H S/O HOMBAIAH AGED ABOUT 46 YEARS

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W.P.No.11839/2020 C/W W.P.No.26339/2018

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KUMAR H S/O HOMBAIAH AGED ABOUT 43 YEARS

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KAREHANUMAIAH S/O HOMBAIAH AGED 40 YEARS RESPONDENTS NO.2 TO 4 ARE R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109

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BYATA VENKATAPPA S/O HOMBAIAH AGED 62 YEARS

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MANJUNATH B S/O BYATA VENKATAPPA AGED ABOUT 42 YEARS

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NAGARATHNA B D/O BYATA VENKATAPPA AGED ABOUT 41 YEARS

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SRINIVAS B S/O BYATA VENKATAPPA AGED ABOUT 38 YEARS RESPONDENTS NO.5 TO 8 ARE R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109

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THIMMAIAH S/O LATE HOMBAIAH AGED ABOUT 54 YEARS

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SMT.ERAMMA W/O NAGARAJU SINCE DEAD BY HER LR’S

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SRI.NAGARAJU D C H/O LATE ERAMMA AGE 53 YEARS

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SMT.MANASA D.C D/O LATE ERAMMA AGED 33 YEARS

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SMT.ROOPA SREE D C D/O LATE ERAMMA AGED ABOUT 29 YEARS

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RESPONDENTS NO.9 TO 12 ARE R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109

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THE SPECIAL LAND ACQUISITION OFFICER BANGALORE MYSORE ROAD NATIONAL HIGHWAY – 275 BASAVANAPURA VILLAGE RAMANAGARA TALUK AND DISTRICT – 571 511 …RESPONDENTS

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(BY SRI.R.HEMANTH RAJ, ADVOCATE FOR R1;

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R3, R4, R5, R6 AND R8 ARE SERVED

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V/O DATED 11.08.2021 NOTICE TO R7,

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R9 TO R13 ARE DISPENSED WITH,

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V/O DATED 11.08.2021 SERVICE OF NOTICE TO R2 AND R12 ARE HELD SUFFICIENT)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER FOUND AT ANNEXURE – J TO THIS W.P. PASSED ON IA DATED 12.04.2019 FILED BY THE

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R-1/PLAINTIFF IN F.D.P.NO.38/2017 DATED 12.04.2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AT RAMANAGARA BY SETTING ASIDE THE SAME BY ALLOWING THIS W.P. AND FURTHER PRAYS TO DISMISS IA DATED 19.09.2018 FILED BY THE R-1/PLAINTIFF FOR AMENDMENT BEFORE THE COURT BELOW AND ETC.

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IN WRIT PETITION NO.26339/2018

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BETWEEN:

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SRI.HOMBAIAH S/O LATE HOMBAIAH AGED ABOUT 64 YEARS R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109 ... PETITIONER

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(BY SRI Y.K.NARAYANA SHARMA, ADVOCATE)

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AND:

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SMT.RANGAMMA

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W/O REVAIAH

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D/O BYATAMMA & HOMBAIAH

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AGED ABOUT 54 YEARS

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R/AT SHESHAGIRI HALLI

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BIDADI HOBLI, RAMANAGARA TALUK – 562 109

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ANAND H S/O HOMBAIAH AGED ABOUT 43 YEARS

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KUMAR H S/O HOMBAIAH

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AGED ABOUT 41 YEARS

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KAREHANUMAIAH

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S/O HOMBAIAH

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AGED 47 YEARS RESPONDENTS NO.2 TO 4 ARE R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109

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BYATA VENKATAPPA S/O HOMBAIAH AGED 59 YEARS

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MANJUNATH B S/O BYATA VENKATAPPA AGED ABOUT 39 YEARS

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NAGARATHNA B D/O BYATA VENKATAPPA AGED ABOUT 39 YEARS

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SRINIVAS B S/O BYATA VENKATAPPA AGED ABOUT 35 YEARS RESPONDENTS NO.5 TO 8 ARE R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109

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9. THIMMAIAH S/O LATE HOMBAIAH AGED ABOUT 63 YEARS

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SMT.ERAMMA W/O NAGARAJU SINCE DEAD BY HER LR’S

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SRI.NAGARAJU D C H/O LATE ERAMMA AGE 62 YEARS

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SMT.MANASA D.C D/O LATE ERAMMA AGED 28 YEARS

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SMT.ROOPA SREE D C D/O LATE ERAMMA AGED ABOUT 26 YEARS

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RESPONDENTS NO.10 TO 12 ARE R/AT MANCHANAYAKANAHALLI M.H.POST, BIDADI HOBLI RAMANAGARA TALUK – 562 109

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THE SPECIAL LAND ACQUISITION OFFICER BANGALORE MYSORE ROAD NATIONAL HIGHWAY – 275 BASAVANAPURA VILLAGE RAMANAGARA TALUK AND DISTRICT – 571 511 …RESPONDENTS

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(BY SRI.R.HEMANTH RAJ, ADVOCATE FOR C/R1, R5, R6, R8 AND R9; SRI.B.V.PRAKASHA ANGADI, ADV. FOR R13; R2, R3 AND R4 ARE SERVED V/O DATED 11.08.2021 NOTICE TO R7, R10, R11 AND R12 ARE DISPENSED WITH)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXURE–J TO THIS W.P. PASSED ON IA DATED 05.03.2018 FILED BY THE RESPONDENT NO.1/PLAINTIFF IN F.D.P.NO.38/2017 DATED 28.05.2018 FROM THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AT RAMANAGARA BY SETTING ASIDE THE SAME BY ALLOWING THIS W.P. AND FURTHER PRAYS TO DISMISS IA DATED 05.03.2018 FILED BY THE R-1/PLAINTIFF FOR AMENDMENT BEFORE THE COURT BELOW AND ETC.

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W.P.No.11839/2020 C/W W.P.No.26339/2018

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13^TH SEPTEMBER 2021, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Both these petitions arise out of the interim orders of the Addl. Senior Civil Judge, Ramanagar passed in FDP No.38/2017. Since both matters have bearing on each other, they were connected to each other and taken up for disposal by this common order.

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Respondent No.1 filed O.S.No.54/2006 on the file of the Additional Senior Civil Judge, Ramanagar against the petitioner and other respondents for partition and separate possession of her one-fifth share in suit schedule ‘A’ and ‘B’ properties. She claimed that the suit properties belonged to her mother Byatamma, on her death, the properties have devolved on her. The said suit was partly decreed on 16.08.2012 granting one-fifth share to the plaintiff in the suit schedule ‘A’ property. In suit schedule

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8 W.P.No.11839/2020 C/W W.P.No.26339/2018

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‘B’ property, she was granted one-fifth share excluding 0.006 guntas of land sold in favour of one K.Ramamurthy.

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Plaint schedule ‘B’ property was the land bearing Sy.No.2/19 of Manchanayakanahalli village, Ramanagar Taluk in all measuring 1 acre 3 guntas. The trial Court excluded 0.06 guntas from ‘B’ schedule property on the ground that both plaintiff and defendants in their pleadings and evidence admitted that Byatamma the mother of the parties during her life time had sold 0.06 guntas in favour of K.Ramamurthy. Therefore, it was held that the said property was not available for partition.

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On the basis of such preliminary decree, respondent No.1 filed FDP No.38/2017 against the petitioner and the other respondents. On 05.03.2018 respondent No.1 filed interim application under Section 152 and 153 read with Section 151 of CPC seeking amendment to the preliminary decree to correct the boundaries of ‘A’ and ‘B’ schedule properties and reduction of area in ‘B’ Schedule property.

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In the affidavit filed in support of the application, respondent No.1 claimed that in the plaint by oversight and typographical error, she had given wrong boundaries and actual area of ‘B’ schedule property was inflated. She further claimed that since she is illiterate and ignorant, she had not noticed the mistakes and she noticed them only when the defendant raised the objections in the statement of objections to the petition. She further claimed that during her life time, Byatamma had sold one and half guntas each to her and defendant No.10 in ‘B’ schedule property and 0.03 guntas was pot kharab land, therefore it should have been excluded from the area of the suit schedule ‘B’ property. She claimed that total property available for partition in schedule ‘B’ property was only 36.06 guntas and the preliminary decree has to be modified accordingly.

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The petitioner contested the said application denying all the contentions of the plaintiff/respondent No.1. He further claimed that ‘B’ schedule property was

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sold to ninth respondent Thimmaiah and he had built up the structures and that fact was suppressed by the plaintiff. He disputed the bonafides of the application and claimed that such amendment cannot be made to the preliminary decree invoking Sections 151, 152 and 153 of CPC.

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The trial Court on hearing the parties by the impugned order dated 28.05.2018 (Annexure-J to the writ petition No.26339/2018) allowed the said application on the ground that final decree proceedings being the continuation of the preliminary decree, the Court can amend the same at any stage if grounds are made out. The trial Court further held that the plaintiff/respondent No.1 has made out ground for allowing such amendment. The petitioner has challenged the said order in W.P.No.26339/2018.

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Thereafter respondent No.1 filed IA No.8 in FDP No.38/2017 seeking amendment of final decree petition to bring that in conformity with the amended

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11 W.P.No.11839/2020 C/W W.P.No.26339/2018

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preliminary decree. The petitioner contested the said application also by filing objections.

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The trial Court on hearing both parties allowed the said application by the impugned order dated 12.04.2019 (Annexure-J to W.P.No.11839/2020). Thereafter on 27.06.2019 the petitioner filed application under Order 47 Rule 1(a) of CPC before the trial Court seeking review of the order dated 12.04.2019. That was opposed by respondent Nos.1 and 6. The trial Court on hearing both side by order dated 08.07.2020 rejected the said application. Therefore, petitioner challenged those orders (Annexure-J and N) in W.P.No.11839/2020.

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Sri Y.K.Narayana Sharma, learned counsel for the petitioner assails the impugned orders on the following grounds:

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i) The trial Court dealing with final decree proceedings was not empowered to amend the preliminary decree on an interim application unless the plaint itself was amended;

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ii) Sections 152 and 153 of CPC can be invoked to amend the decree only to correct the errors arising from accidental slip or omission and not to redo the decree, that too when it affects the rights of the other parties;

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iii) In the suit the Court even after discussing about the sales in favour of the plaintiff and defendant No.10 did not grant decree excluding those properties, though the properties, sold in favour of Ramamurthy was specifically excluded. The plaintiff did not challenge the decree nor sought review of the order. She only chose to file application seeking amendment of the preliminary decree in final decree proceedings. That too after five years of passing of the decree.

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Countering such arguments Sri R.Hemanth Raj, learned counsel for respondent No.1-plaintiff justifies the impugned order on the following grounds:

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i) The final decree proceedings are the continuation of the suit. Therefore, the trial Court was justified in correcting the decree and allowing the

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amendment application. The error was only accidental one and an omission.

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In support of his contentions, he relied on the following judgment, which was relied by the trial Court also.

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i) Shub Karan Bubna @ Shub Karan Prasad

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Bubna vs. Sita Saran Bubna and others¹

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Having regard to the aforesaid contentions, the points that arise for consideration are:

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i) Whether the order of the trial Court allowing the application for amendment of the preliminary decree is sustainable ? ii) Whether the order of the trial Court allowing the application of the plaintiff for amendment of the final decree petition is sustainable ?

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The Trial Court first allowed the application for amendment of the preliminary decree. Thereafter the plaintiff filed another application seeking amendment of

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1 (2009)9 SCC 689

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the final decree petition to amend the boundaries of ‘A’ and ‘B’ schedule properties and the area of ‘B’ schedule property to bring in conformity the petition in accordance with the amendment of the decree granted.

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The plaintiff sought amendment of the boundaries of the plaint schedule ‘A’ and ‘B’ properties and the area of plaint ‘B’ schedule property. The preliminary decree was passed on the basis of schedule given by the plaintiff in her plaint, which reads as follows:

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Schedule – A

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All that piece and parcel of S.Y.No.2/16, B situated at Manchanayakanahalli, M.H. Post, Bidadi (Hobli) Ramanagaram (Taluk), Bangalore Rural (District), to extent of 24 guntas bounded as

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East by :	Property belongs to Thammaiah
West by : North by :	Bangalore Mysore Road Government lake
South by :	Property belongs to Thammaiah

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Schedule – B

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All that piece and parcel of S.Y.No.2/19, situated at Manchanayakanahalli, M.H. Post, Bidadi (Hobli) Ramanagaram (Taluk),

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15 W.P.No.11839/2020 C/W W.P.No.26339/2018

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Bangalore Rural (District), to extend 1 acre 03 guntas bounded as

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East by West by	: :	Property belongs to Byrappa Property belongs to Thammaiah
North by	:	Property belongs to Ramamurthy, Forest
South by	:	Property belongs to Rangamma & Eramma,
		property Yogeshwar

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In her application the plaintiff sought the

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following amendment:

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1. Boundaries Sought to be

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corrected/amended:

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At Schedule-A, the boundaries shown on North and South may be interchanged and rectify it as North by: Property belongs to Thammaiah and South by: Government Lake. 2. At Schedule-B, the boundaries on West the words property belongs to Thammaiah may be deleted and read as “Propety of Ramamurthy and Road thereafter property of Thammaiah” North the words property belongs to Ramamurthy, forest may be deleted and read as “Property of Smt.Rangamma(petitioner) and Late Eramma

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(Respondent No.10) in Sy. No.2/19”. And on south the property belongs Rangamma and Eramma property Hogaeshwar may be deleted and read as “Government School and Gundu Thopu in Sy.No.2/3.”

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2. Measurement Sought to be

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corrected/ amended:

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At Schedule-B, the measurement, to extent 1 acre 3 Guntas may be deleted and read as “ measuring 0.36.06.00 Guntas out of total 1 acre 3 Guntas” .

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The above schedule and amendment sought in

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the application go to show that the plaintiffs by way of amendment of the decree wants to exclude about 7 guntas of land from schedule ‘B’ property and also material changes in the boundaries of the said property. In schedule ‘A’ property she wants to interchange the northern and southern boundaries. So far as reduction of the area of ‘B’ schedule property, she claims that 1.3 guntas each was sold to her and defendant No.10 and 3 guntas is pot kharab, that requires to be reduced.

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Section 152 and 153 of CPC which deal with amendment of the decree read as follows:

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“152. Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

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153. General power to amend.- The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.”

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The reading of the above provisions shows that

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decree can be amended only to correct the clerical or arithmetical or accidental errors or omissions. It further shows that such issue shall be raised in the trial. In all the judgments relied on by the learned counsel for the plaintiff-respondent it was held that if the amendment does not amount to substitution of the new property and if

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they fall under Section 152 CPC such amendment can be allowed.

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In Dwarak das’ s case referred to supra while explaining what amounts to clerical or arithmetical mistakes or accidental mistakes the Hon’ble Supreme Court in para 6 of the judgment held that the exercise of power under Section 152 of CPC contemplates the correction of mistakes by the Court of its Ministerial actions and does not contemplate passing of effective judicial orders after the judgment or decree or order . It was further held that the Court becomes functus officio the moment the judgment and decree is passed, therefore the Court not entitled to vary the terms of judgment and orders earlier passed.

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It was further held that the corrections contemplated are of correcting accidental omissions or mistakes and not all omissions and mistakes which might

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have been committed by the Court while passing the judgment/decree or order. It was further held that the

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omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 of CPC for which appropriate remedy of the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct the omission which is intentional, however erroneous that may be. It was further held that no Court can under the cover of Section 152 CPC modify, alter or add to the terms of its original judgment/decree or order.

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In Darshan Singh’ s case referred to supra, the Hon’ble Supreme Court held that the omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 of CPC . It was further held that only unintentional mistake of the Court which may not prejudice the cause of any party must alone could be rectified invoking Section 152 of CPC. It was further held that power under Section 152 CPC is distinguishable from power of review and Section 152 CPC cannot be invoked to exercise power of review.

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20 W.P.No.11839/2020 C/W W.P.No.26339/2018

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In all the judgments relied on by the learned counsel for the plaintiff/respondent, it was held that the Court at any stage can correct such arithmetical or clerical or accidental errors. Even in the judgment in Shubh Karan Bubna’ s case relied upon by the learned counsel for the respondent also same view was taken.

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In the light of the above legal position, “Whether exclusion of area of the property sold to respondent No.1 and the pot kharab land amounts to correction of accidental error?” is the question.

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The reading of the judgment in O.S.No.54/2006 clearly shows that the issue of 3 guntas of pot kharab was not at all raised in the trial. For the first time in the amendment application 3 guntas was sought to be reduced in the area of ‘B’ schedule property on the ground that it is pot kharab and not available for division.

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Rule 21(2) of Karnataka Land Revenue Rules,

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1966 which deals with classification of pot Kharab land reads as follows:

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“ Rule 21(2) – During the process of classification land included as unarable shall be treated as “Pot Kharab”. Pot Kharab lands may be classified as follows: -

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“(a). That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floors of the holder;

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(b). That which is not assessed because , (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognized footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes;; (iii) used as burial ground or cremation ground; (iv) assigned for village potteries.”

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Reading of the above provision shows that if pot kharab is covered under Rule 21(2) (a), the holders are entitled to use and enjoy the same. If the pot kharab

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is covered under Rule 21(2)(b) that is treated as public property then that is unalienable or divisible.

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The reading of the judgment makes it clear that no where the plaintiff contended that the pot kharab lies under Rule 21(2)(b) and therefore it is not divisible. For the first time by way of amendment to the decree, she seeks to raise such contention. That goes to the merits of the case. Therefore that is clearly beyond the scope of 152 CPC.

¶170

So far as reducing one and half guntas sold to plaintiff and defendant No.10 each, the reading of the judgment shows that plaintiff claimed that to be the absolute sale. The defendants No.6 to 8 claimed that the said land was given in lieu of the share of plaintiff and defendant No.10, but at the instance of plaintiff and defendant No.10, the documents were styled as sale deeds. Since the defendants did not cross examine plaintiff’s witnesses, the trial Court accepted the

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contention of the plaintiff that they were outright sale deeds.

¶174

Despite upholding such contention of the plaintiff, the trial Court did not reduce the said extent of land from plaint schedule ‘B’ property. The plaintiff and defendant No.10 also did not lead any evidence to show that the lands sold under those sale deeds were covered under plaint schedule B property.

¶175

Under such circumstances, it cannot be said

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that the trial Court by clerical or accidental or arithmetical error or omission included the properties sold to them in schedule ‘B’ property. That required again the evidence and relates to the merits of the case and affects rights of contesting defendants. Therefore, that could not be said to be an accidental, clerical or arithmetical error. If at all the plaintiff found that to be an error apparent on the face of the record, her remedy was to seek review of the judgment which she has not done.

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Even in filing the application under Section 152 CPC, there was an unexplained inordinate delay. Under such circumstances, the judgment relied on by the learned counsel for the respondent and the trial Court are not applicable. The impugned order of amendment of the decree and the consequential order of permitting the amendment of the final decree petition are not sustainable. Therefore the petitions are allowed.

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The impugned orders of the trial Court at Annexure –J dated 28.05.2018 and 12.04.2019 are hereby quashed. The applications of plaintiff-respondent No.1 for amendment of the preliminary decree and amendment of final decree petition are hereby dismissed.

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In view of the dismissal of those applications IA No.8 filed by the present petitioner before the trial Court for review of the order dated 12.04.2019 does not survive for consideration and disposed of accordingly.

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Sd/-

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JUDGE

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akc

Sri. Hombaiah v. Smt. Rangamma

Case brief

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Sri. Hombaiah v. Smt. Rangamma

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