Allowed

Sri. Muniyappa Since Dead by His Legal Representatives Smt. Rathnamma v. Smt Ramakka Since Dead by Her Legal Representatives Smt. Gowramma

Karnataka HC5 Dec 2024WP/28243/2018

Case brief

AI extract

What is this about?

Partition suit: writ petition against rejection of amendment application to add a jointly enjoyed western portion of land and a pleading about a 1967 sale deed. High Court held amendment did not change the suit's nature, allowed it subject to costs.

What did the court decide?

Impugned order set aside; Order VI Rule 17 application allowed with Rs.25,000 cost; liberty for additional written statement; suit to be disposed within one year.

Sri. Muniyappa Since Dead by His Legal Representatives Smt… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:50352 WP No. 28243 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 28243 OF 2018 (GM-CPC)

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BETWEEN:

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SRI MUNIYAPPA, SINCE DEAD BY HIS LEGAL REPRESENTATIVES

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1(a) SMT. RATHNAMMA D/O LATE MUNIYAPPA, W/o Narayana Reddy, AGED ABOUT 53 YEARS, R/AT THATANNUR VILLAGE, ANUGONDANAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT - 560 073.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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1(b) SMT. PADMA D/O LATE MUNIYAPPA W/O SAMPANGIRAMAIAH, AGED ABOUT 46 YEARS, R/AT NO. 37, MUGALUR KUGAL POST, NEAR SCFSC SOCIETY, MUDALUR, ANEKAL TALUK, BENGALURU URBAN TALUK - 562 125.

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1(c) SRI NAGESH, S/O LATE MUNIYAPPA, AGED ABOUT 34 YEARS, R/AT HALASALI ROAD, VSR LAYOUT, OPP TO CHOWDESHWARI TEXTILE, VARTHUR, BANGALORE - 560 087. …PETITIONERS

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(BY SRI V.F, KUMBAR, ADVOCATE)

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AND:

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SMT RAMAKKA

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SINCE DEAD BY HER LEGAL REPRESENTATIVES

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a) SMT. GOWRAMMA, W/O. MUNI REDDY, AGED ABOUT 53 YEARS, R/AT. KOMARANAHALLI, HOSUR TALUK, DHARMAPURI DISTRICT, TAMIL NADU.

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b) SMT. JAYAMMA, W/O SUBBAREDDY, AGED ABOUT 42 YEARS, R/AT. NO.260, ASHWATHA KATTE ROAD, MADURA NAGAR, SORAHUNASE LAYOUT, BANGALORE - 560 087.

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C) SMT. SAROJAMMA, W/O. MANJUNATH REDDY, AGED ABOUT 40 YEARS, R/AT. THATANOUR, ANUGONDANAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.

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LR'S OF RESPONDENT NO.1

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A. MUNIYAPPA, S/O LATE APPAIAH, AGED ABOUT 45 YEARS,

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SMT. RATHNAMMA W/O. LATE. A SRINIVAS, AGED ABOUT 35 YEARS,

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3 - NC: 2024:KHC:50352 WP No. 28243 of 2018

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SURESHA

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S/O. ALU NARAYANAPPA,

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AGED ABOUT 27 YEARS,

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NOS.2 TO 7 ARE RESIDENT OF MUGULUR VILLAGE,

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SARJAPURA HOBLI, ANEKAL TALUK,

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BANGALORE URBAN DISTRICT 562 125.

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GADDIPATI VEERA RAGHAVAIAH S/O. RAMAKRISHNAIAH, AGED ABOUT 62 YEARS,

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GADDIPATI PARVATHI W/O. VEERA RAGHAVAIAH, AGED ABOUT 39 YEARS,

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SWARAJYALAKSHMI D/O. VEERA RAGHAVAIAH, AGED ABOUT 39 YEARS,

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RESPONDENT NOS.5 TO 7 ARE R/OF. GUDVALLI VILLAGE AND POST, CHERUKUPALLI MANDALAM,

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GUNTUR DISTRICT, ANDHRA PRADESH - 522 259.

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RATHNAMMA

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D/O. LATE. APPAIAH, AGED ABOUT 45 YEARS, R/AT ATTIBELE VILLAGE, ANEKAL TALUK 562107

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…RESPONDENTS

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(RESPONDENT NO.2 - SERVED;

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BY SRI P. SHIVAKUMAR, ADVOCATE FOR R5 TO R7; NOTICE TO PR1(A), PR1(B), PR1(C) IS SERVED; VIDE ORDER DATED 15.06.2022, NOTICE TO R3, R4 AND R8 ARE DISPENSED WITH; SRI DUSHYANTH ARADHYA H.C., ADVOCATE FOR PROPOSED R9)

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4 - NC: 2024:KHC:50352 WP No. 28243 of 2018

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 4.6.2018 PASSED ON I.A.13 FILED UNDER ORDER 6 RULE 17 AND ALLOW THE SAME IN O.S.500/2006 PASSED BY SR. CIVIL JUDGE AT ANEKAL AT ANNEX-A AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The legal representatives of plaintiff in O.S No.788/2002 on the file of the Principal Civil Judge (Senior Division), Bengaluru Rural District have filed this petition challenging an order dated 04.06.2018, by which an application filed by plaintiff under Order VI Rule 17 of Code of Civil Procedure (for short 'CPC') to amend the plaint was rejected.

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A suit in O.S No.788/2002 now renumbered as O.S No.500/2006, was filed for partition and separate possession of the plaintiff's share in the suit schedule properties. The defendant Nos.1 to 3 contested the suit and claimed that there was a prior partition and therefore, the plaintiff was not entitled to any share in the suit schedule properties.

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When the suit was set down for the evidence of the

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plaintiffs, an application was filed by plaintiff under Order VI Rule 17 of CPC to incorporate an additional pleading, which is as below:

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"7(a) The plaintiff submit that, during the joint family status his brother late Appaiah was managing the joint family affairs and he knew the revenue transactions, likewise he maintained all the joint family economic status as a kartha and the plaintiff is only a puppet before him. Hence during the joint status for the benefit of the joint family at the instructions of his brother Appaiah, the plaintiff sold half portion of land in Sy No 42/8, measuring 1 acre 19 guntas out of 2 acre 38 guntas, situated at Mugalur village, Sarjapura Hobli, Anekal taluk, Bangalore urban district under the sale deed vide No 689/67-68 dated 31.05.1967 in favour of Ballappa S/o Kondappa and remaining western portion was retained and since then was and is enjoyed by the plaintiff and defendants 1 to 4 jointly under the joint family status. Hence the plaintiff is also entitled to half share over the retained western portion of the land, schedule item No 16"

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He also proposed to introduce another property into the

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suit which as follows:

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"SCHEDULE -16: land bearing Sy No 42/8, measuring 1 acre 19 guntas situated at Mugalur village. Sarjapura Hobli, Anekal taluk, Bangalore Urban District, bounded on :-

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East By:- Land of Balappa in same Sy No 42/8, West By :- Road North By:- Bandi Muniyappa

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South By:- Kere Angala"

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(i) The said application was opposed by the defendants, who contended that the reason for the belated filing of the application was not justified. They also contended that they had mentioned about the sale deed dated 31.05.1967, in their written statement which was filed in the year 2003 itself and therefore, the amendment sought for was hopelessly barred by the law of limitation. They claimed that the issues in the suit were framed in the year 2004 and that despite granting enough opportunities to the plaintiffs to lead evidence, the plaintiffs were dilly-dallying and were trying to protract the proceedings. They claimed that the application for the amendment was also one such attempt.

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(ii) The Trial Court, after considering the contentions urged by the parties, rejected the application in terms of the impugned order on the ground that the plaintiff had filed I.A Nos.3, 6 and 9 for amendment which were allowed. It held that the plaintiff who had led in evidence on 10.09.2004 but did not conclude it. It held that the plaintiff had belatedly sought for reliefs against the sale deed dated 31.05.1967, executed by

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him. It also held that the defendant No.2 had mentioned about the sale deed dated 31.05.1967 in the written statement. Therefore, it was held that the plaintiffs were trying to protract the proceedings in the suit by filing the application for amendment to claim relief in respect of the sale deed dated 31.05.1967 and consequently rejected the application with cost of Rs.2,000/-. Being aggrieved by the said order, the plaintiffs are before this Court.

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Learned counsel for the legal representatives of plaintiff contends that by way of an amendment the plaintiff was not seeking for a share in the property that was sold under the sale deed dated 31.05.1967, but was claiming a share in the western portion of the land bearing Sy No.42/8, which was described as suit schedule item No.16 in the amended application. He therefore contends that, the Trial Court ought to have considered this and must have allowed the application, as the plaintiffs are entitled to include all property belonging to the joint family till final decree proceedings are drawn.

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The respondents, though served with the notice, did

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not appear before the Court and therefore, they did not have the benefit of their submissions.

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The suit was filed for partition and separate possession of the plaintiff's share in the suit schedule properties. The defendant Nos.1 to 3 contended that the plaintiff and his brother Sri Appaiah, were separated somewhere in the year 1966 and were residing separately. They claimed that in the said partition, the western half of suit item No.1 was allotted to the share of Sri Appaiah and the eastern half was allotted to the share of the plaintiffs. From then on, they were in possession and enjoyment of the portion that fell to their respective share. They contended that the property that fell to the share of plaintiff in Sy No.42/8 was disposed off by the plaintiff and some properties were acquired in the name of his son-in-law. Therefore they contended that the western portion of the property in Sy No.42/8 that was allotted to the share of the defendants was not available for partition.

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Now the application is filed for amendment to claim a share in the western portion of land in Sy No.42/8. The question whether the plaintiff is entitled for a share in Sy No.42/8 or not is to be decided in the suit. The Trial Court must have permitted the plaintiff to include schedule item No.16 in the suit as the plaintiff was entitled to include the said property even during the course of final decree proceedings. The Trial Court must have been mindful of the fact that the defendants had claimed that the schedule item No.16, was the land that had fallen to their share at the partition in the year 1966 and therefore, they were bound to prove the partition of the year 1966, as well as the fact that the western portion of schedule item No.16 fell to their share. The neglect in not including the property at the inception and the delay in decision of the suit on account of the instant application could be compensated by placing the plaintiff on terms. Since the amendment did not change the nature of the suit or the cause of action and did not attempt to withdraw any admission made in the pleadings, the Court must have permitted the amendment giving effect to it from the date of application. In

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that view of the matter, this writ petition deserves to be allowed on the following terms:

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i) The writ petition is allowed.

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ii) The impugned order passed by the Trial Court is set aside.

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iii) The application filed by the plaintiffs under Order VI Rule 17 of CPC is allowed.

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iv) The plaintiffs are permitted to include schedule item No.16 and also paragrapah 7A in the plaint which is however subject to the payment of cost of RS.25,000/payable to the defendant Nos.1 to 3 on the next date of hearing before the Trial Court.

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v) The defendants are at liberty to file an additional written statement. If any issue arises, the Trial Court may frame and proceed in accordance with law.

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vi) Since the suit was filed in the year 2006,

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the Trial Court is requested to take up the suit on day to day basis and dispose off the suit as

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early as possible at any rate within a period of one year from the date of receipt of a certified copy of this order.

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Sd/(R. NATARAJ) JUDGE

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THM

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List No.: 1 Sl No.: 50

Sri. Muniyappa Since Dead by His Legal Representatives Smt. Rathnamma v. Smt Ramakka Since Dead by Her Legal Representatives Smt. Gowramma

Case brief

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Sri. Muniyappa Since Dead by His Legal Representatives Smt. Rathnamma v. Smt Ramakka Since Dead by Her Legal Representatives Smt. Gowramma

Case brief

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