Allowed

Smt H Mahalakshmi v. Sri T Rajendra

Karnataka HC10 Oct 2023WP/11828/2018

Case brief

AI extract

What is this about?

Held, a writ petition directly filed by the plaintiff against the rejection of their amendment application under Order VI Rule 17 CPC. The High Court examined the necessity of the amendment for complete adjudication of the land title dispute and allowed the petition, quashing the lower court order.

What did the court decide?

The impugned order dated 26.02.2018 in O.S. No.1104/2014 was quashed; the amendment application was allowed; respondents given liberty to file written statements.

Smt H Mahalakshmi Vs Sri T Rajendra — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:36789 WP No. 11828 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF OCTOBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 11828 OF 2018 (GM-CPC)

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BETWEEN:

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SMT H MAHALAKSHMI W/O. LATE. T VENKATESH, SINCE DECEASED BY HER LRS

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a SRI. V. AKSHAYKUMAR S/O LATE T VENKATESH AGED ABOUT 32 YEARS

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b SRI. V. ABHISHEK S/O LATE T VENKATESH AGED ABOUT 27 YEARS

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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BOTH ARE R/AT NO. 28/3 1^ST MAIN NO. 3^RD CROSS PADARAYANAPURA BENGALURU – 26.

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(BY SRI. C PRAKASH.,ADVOCATE)

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…PETITIONERS

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AND:

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SRI T RAJENDRA S/O. P TYAGARAJU, AGED ABOUT 41 YEARS R/AT NO. 5, TT LANE, KALASIPALYA MAIN ROAD, BENGALURU 560002.

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SRI. T MUNIRAJU S/O. LATE. TANEERAIAH, AGED ABOUT 72 YEARS, R/AT NO. 4 RANGANATHA NILAYA, AVALAHALLI, ANJINAYA TEMPLE ROAD, GEF POST, MYSORE ROAD, BENGALURLU 560026.

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SRI. R PALANIRAJU S/O. P S RAMA SUDAKHAR, AGED ABOUT 51 YEARS R/AT NO. 55, VYSHNAVI, 47^TH CROSS, 8^TH BLOCK, JAYANAGAR, BENGLAURU 560082.

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SMT. VENKAMMA W/O. SRI. VENKATA SWAMY, AGED ABOUT 64 YEARS R/AT NO. 99. NISARGA, 2ND MAIN ROAD, BIKASEEPURA, BENGALURU 560066.

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SMT. GANGAMMA W/O. MUNIYAPPA, AGED ABOUT 71 YEARS

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SMT. MAHADEVAMMA D/O. MUNIYAPPA, AGED ABOUT 48 YEARS

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SRI. YOGENDRA MUNI S/O. SRI. AKILANDA MUNI, AGED ABOUT 33 YEARS

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SRI. SHIVARUDRAMUNI S/O. SRI. AKILANDA MUNI, AGED ABOUT 31 YEARS

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SRI. ANIL KUMAR S/O. LATE. MUNIYAPPA, AGED ABOUT 45 YEARS

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SMT. KALPANA @ KALYANAMMA D/O. LATE. MUNIYAPPA, AGED ABOUT 43 YEARS

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NO. 5 TO 10 ARE RESIDING AT NO. B-9, 2^ND CROSS, GOPALAPURA, MAGADI ROAD, BENGALURU 560023.

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SRI. BASAVARAJU S/O. LATE. MUNIRAMAIAH, AGED ABOUT 50 YEARS

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SMT. SUJATHA D/O. SRI. BASAVARAJU, AGED ABOUT 45 YEARS

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SMT. GANGALAKSHMI D/O. SRI. BASAVARAJU, AGED ABOUT 27 YEARS

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SMT. RENUKA JYOTHI D/O. SRI. BASAVARAJU, AGED ABOUT 22 YEARS

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SRI. CHARANRAJ S/O. SRI. BASAVARAJU, AGED ABOUT 19 YEARS

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SL. NO. 11 TO 15 ARE R/AT CHANNASANDRA VILLAGE, SUBRAMANYAPURA POST, UTTARAHALLI HOBLI, BENGALURU 560067.

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SRI. B MANJUNATH S/O. SRI. BORAJU, AGED ABOUT 37 YEARS R/AT NO. 1/3, RAILWAY PARALLEL ROAD, VALAGEREHALLI, KENGERI SATELLITE TOWN, BENGLAURU 560060.

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SMT. K SHOBHA W/O. SRI. RAMAKRISHNA, R/AT NO. 1/15, ANJANEYA TEMPLE STREET, VALAGEREHALLI, KENGERI SATELLITE TOWN, BENGLAURU 560060.

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…RESPONDENTS

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(BY SRI. S SURENDRA, ADVOCATE FOR R1;

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VIDE ORDER DATED 05.04.2018; NOTICE TO R2 TO

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R17 ARE D/W)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED ORDER DATED 26.02.2018 VIDE ANNEXURE-E PASSED ON I.A.NO.IV IN O.S.1104/2014 BY THE 3^RD ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU.

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NC: 2023:KHC:36789 WP No. 11828 of 2018

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is by the plaintiff in

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O.S.No.1104/2014 on the file of the III Additional

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City Civil and Sessions Judge, Bengaluru [for short, ‘the civil Court’ ]. The petitioner is aggrieved by the civil Court’s order dated 26.02.2018, and the civil Court by the impugned order has rejected the petitioner’s application [IA No.4] under Order VI Rule 17 of the Code of Civil Procedure, 1908 [ CPC ] for amendment of the plaint. The petitioner in filing this application for amendment has proposed inclusion of additional pleadings in support of the initial prayer for declaration of title and for possession of the subject property.

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The petitioner’s case is that Smt. Yellamma and Sri. Sannayellappa are the owners of the land in Sy.No.1 of Valagerehalli village, Kengeri Hobli,

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Bengaluru South Taluk [ the subject land ] and they were re-granted this land on 20.07.1970; that Smt. Yellamma and Sri. Sannayellappa have transferred the aforesaid land in favour of Sri R. Narahariyappa on 12.11.1971 and that after his demise, Sri N. Ramamurthy, who succeeded to this land, has transferred the same in favour of Sri K. A Rajashekar under the sale deed dated 20.07.1998.

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The plaintiff further contends that Sri K A Rajashekar has constituted Sri. T. Venkatesh [ the petitioner’s husband ] as his attorney vide the registered Power of Attorney dated 08.04.2001 with the authority to deal with this land, and that Sri T. Venkatesh, who has developed this land, has transferred a site therein, the suit schedule property which is described as bearing assessment No.1 [ House List No.1/1 - the subject property ]. The petitioner has initially filed this suit against the first to fourth respondents referring to certain earlier

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proceedings, but essentially contending that the aforesaid respondents are strangers to the subject property though they have stated that they have purchased the subject land, and that they have forcibly taken possession from the petitioner.

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The petitioner has later impleaded the other respondents in the suit and after they are impleaded, the present application is filed. The petitioner proposes to amend the plaint to contend as follows:

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[a] Smt. Yellamma @ Botamma and others the predecessor in title of the plaintiff have filed a suit in O.S. 5084/1995 against Sri. Muniramaiah and others for partition and separate possession of the subject land, including the subject property and other properties. Subsequently on 29.02.1996, Smt. Yellamma and others have filed compromise petition and obtained a collusive compromise decree by an order dated 29.02.1996 suppressing the sale in favour of Sri. R. Narahariyappa.

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[b] Smt. Yellamma's legal heirs and others, including the Legal heirs of Sri. Sannayellappa [the defendants 5 to 15] have sold the properties [including the subject property] in favour of the second to fourth respondents [the second to fourth Defendants], who have allegedly formed a layout and sold sites to various persons including the first Respondent. These respondents have executed the Sale Deed dated 26.07.2012 in favour of the first respondent, who in turn has sold the subject property dividing it into 2 sites in favour of the sixteenth and seventeenth respondents under the sale deeds dated 24.06.2013 and they have illegally constructed the building and the same is liable to be removed.

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The other proposed amendment is to include

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additional prayers¹ based on this plea.

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1 “In Prayer column add the following prayer. After prayer a) and b) add c), d), e) and f):

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c) Declare that the compromise collusive decree obtained in O.S. No.5084/1995 dated 29.02.1996 and consequential documents are not binding on the plaintiff.

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c) Declare that sale deed dated 04.08.2006 executed by defendants 5 to 15 in favour of defendants 2 to 4 is not binding on the plaintiff.

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Sri C. Prakash, the learned counsel for the

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petitioner, submits that the petitioner has been consistent in contending that Smt. Yellamma and Sri. Sannayellappa, who are re-granted this land on 20.07.1970, are the owners of the subject land, but they have initiated the suit in O.S.No.5084/1995 against Sri. Muniramaiah and others suppressing registered transaction, and their legal heirs, taking advantage of the compromise decree therein, have caused the sale deed dated 04.08.2004 in favour of the second to fourth respondents. The learned counsel argues that therefore, the proposed amendment would be necessary for complete and real adjudication of the lis viz ., whether the petitioner is entitled for declaration of title and recovery of

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d) Declare that sale deed dated 26.07.2012 executed by defendants 2 to 4 in favour of 1^st defendant is not binding on the plaintiff.

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e) Declare that two 2 sale deeds dated 24.06.2013 executed by 1^st defendant in favour of defendants No.16 and 17 are not binding on the plaintiff and plaintiff's right is intact.”

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possession of the subject property from all the respondents.

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Sri C. Prakash further argues after the additional defendants, who are essentially the legal heirs of Smt. Yellamma and Sri. Sannayellappa and the purported purchasers from the first respondent, are impleaded, that the petitioner could ascertain the details of the suit in O.S.No.5084/1995 and other transactions. Sri C. Prakash canvasses that notwithstanding these overwhelming circumstances, the civil Court has rejected the application opining that the petitioner has filed this application offering a lame excuse contending that she was not aware of the developments and the she ought to have taken necessary measure in time. The petitioner’s grievance against the civil Court’s impugned order, apart from the afore, Sri C. Prakash emphasizes is with the civil Court opining that the petitioner has not satisfied the

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requisite conditions for allowing an application for amendment after commencement of trial.

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The merits of the petitioner’s grievance are examined in the light of the following circumstances. As emphasized by Sri C. Prakash, none except the first respondent has filed written statement. The petitioner has died during the pendency of this suit and her legal representatives have been permitted to come on record not only in the present petition but also in the suit. The civil Court, in the light of Issues framed² , will have to decide whether the petitioner proves title to the subject property, and this question will have to be decided after extending an opportunity to all the respondents, who are the legal heirs of Smt. Yellamma and Sri Sannayellappa and the purchasers of the larger land from them.

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2 The civil Court has framed Issues on 02.06.2017.

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Further, it is undisputed that the first respondent has filed his written statement on 28.07.2014 adverting to the compromise in O.S.No.5084/1995 and the later sale deeds, and the petitioner is a stranger to these transactions. The present application is filed on 17.07.2017 with the additional defendants being impleaded in the interregnum. The petitioner has filed her affidavit in lieu of chief examination, but due diligence will have to be discerned to ascertain whether there is reasonable diligence.

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This Court, because the petitioner had to verify the records and obtain copies thereof before proposing amendment, cannot opine that there is no diligence or failure to explain the delay though it must be observed that the affidavit in support of the application could have been more detailed. However, the overwhelming consideration, while examining the merits of the application for amendment of the

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pleadings, must be to enable complete and effective adjudication of the dispute. The civil Court could not have rejected the application ignoring the vital aspects, or the other materials discussed.

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As regards the question of limitation, it would suffice for this Court to observe that unless the contesting defendants – respondents demonstrate that the claim was ex facie barred as of the date of the application, the proposed amendments could be allowed leaving open the question of limitation to be decided in the suit, and insofar as whether the amendment should relate to the date of the suit or date of the application, it is trite that unless special circumstances are established, it would relate to the date of the application. In the circumstances of the case where the petitioner has initially filed the suit only against some of the defendants describing them as strangers to the subject property but has later filed applications for impleading all the stake holders

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and for amendment of the pleadings, this Court must opine that the amendment should relate not to the date of the suit but to the date of the application. In the light of the afore, the following:

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ORDER

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The petition is allowed, and the civil Court’s order dated 26.02.2018 in O.S.No.1104/2014 is quashed. The petitioner’s application for amendment is allowed permitting the petitioner to amend the plaint as now sought for, but with liberty to all the respondents to file written statement/additional statements within such time. The civil Court shall also consider framing of Additional Issues.

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Sd/JUDGE

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SA ct:sr

Smt H Mahalakshmi v. Sri T Rajendra

Case brief

What is this about?

What did the court decide?

Smt H Mahalakshmi v. Sri T Rajendra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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