Partly allowed

Smt. Yashodamma v. Smt. Sarojamma

Karnataka HC8 Feb 2024WP/33665/2017

Case brief

AI extract

What is this about?

Defendant challenged an order allowing amendment of plaint in a partition suit where plaintiffs sought to replace an adverse-possession plea with a plea of extinguished right to redeem. The High Court held deletion of the admission would prejudice defendants, set aside the order, and allowed the amendment only in part.

What did the court decide?

Order dated 18.07.2017 in OS No.1590/2015 set aside; IA under Order VI Rule 17 allowed in part; deletion of paras 8, 10, 11 rejected but proposed insertions permitted.

Smt. Yashodamma Vs Smt. Sarojamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:5377 WP No. 33665 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 33665 OF 2017 (GM-CPC)

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BETWEEN:

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SMT. YASHODAMMA W/O. LATE CHIKKAPAPANNA AGED ABOUT 68 YEARS R/AT NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA

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GKVK POST, BANGALORE - 560 065

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…PETITIONER

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(BY SRI. K R SREENIVASA PATAVARDHAN, ADVOCATE)

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AND:

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SMT. SAROJAMMA W/O. LATE APPAJAPPA AGED ABOUT 77 YEARS R/AT NO. 1029 KAMADHENU NILAYA III MAIN ROAD DIWANARAPALYA GOKUL EXTENSION

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BENGALURU - 560 054

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Digitally signed by PAVITHRA N

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Location: high court of karnataka

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SMT. SHARADAMMA W/O. PILLAPPA AGED ABOUT 75 YEARS R/AT NO. 135 6TH CROSS MATHRU LAYOUT CHIKKABOMMASANDRA VILLAGE G.K.V.K. POST, BANGALORE - 560 065

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SMT. AMMAYAMMA W/O. RANGAHANUMAIAH AGED ABOUT 73 YEARS R/AT CHIKKABOMMASANDRA VILLAGE G.K.V.K. POST, BENGALURU - 560 065

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SMT. MANJULA W/O. RANGANATHAPPA AGED ABOUT 71 YEARS

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2 - NC: 2024:KHC:5377 WP No. 33665 of 2017

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R/AT CHIKKABOMMASANDRA VILLAGE G.K.V.K. POST,BENGALURU - 560 065

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SMT. LALITHAMMA W/O. HANUMANTHAPPA AGED ABOUT 53 YEARS R/AT IVARAKANDAPURA VILLAGE VENUGOPALASWAMY TEMPLE ROAD HESARAGHATTA HOBLI BANGALORE NORTH TALUK BENGALURU - 560 090

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SMT. NAGARATHNAMMA W/O. Y. G. MANJUNATH AGED ABOUT 51 YEARS R/AT CHIKKABOMMASANDRA VILLAGE G.K.V.K. POST,BENGALURU - 560 065

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SMT. HANUMAKKA W/O. LATE RANGAPPA AGED ABOUT 92 YEARS RESIDING AT NO. 767 7TH "A" CROSS YELAHANKA NEW TOWN BENGALURU - 560 064

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SRI R MANJUNATHA W/O LATE RANGAPPA AGED ABOUT 56 YEARS R/A NO.767 7TH A CROSS YELAHANKA NEW TOWN BENGLAURU - 560064

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SRI MUNIRAJU S/O LATE CHIKKANNAPPA AGED ABOUT 48 YEARS R/A CHIKKABOMASANDRA VILLAGE GKVK POST,BENGALURU - 560065

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SRI SHIVANNA S/O LATE CHIKKANNAPPA AGED ABOUT 45 YEARS R/A CHIKKABOMMASANDRA VILLAGE G K V K POST,BENGALURU - 560065

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3 - NC: 2024:KHC:5377 WP No. 33665 of 2017

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SMT MANJULA W/O LATE PRAKASH AGED ABOUT 33 YEARS R/A NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST,BENGALURU - 560 065

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KUMARI BANUPRIYA D/O LATE PRAKASH AGED ABOUT 22 YEARS R/A NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST,BENGALURU - 560 065

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MASTER AJAY S/O LATE PRAKASH AGED ABOUT 17 YEARS MINOR REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER RESPONDENT NO.11 R/A NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST,BENGALURU - 560 065

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SRI SUBBARAYAPPA S/O LATE MUNIHANUMAPPA AGED ABOUT 48 YEARS R/A CHIKKABOMMASANDRA VILLAGE GKVK POST,BENGALURU - 560 065

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SMT LALITHAMMA W/O LATE MUNIKRISHNAPPA AGED ABOUT 54 YEARS R/A NO.461 5TH CROSS BHOVI COLONY BASAVESHWARANAGAR BENGALURU - 560 079

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SRI M SHANKARAPPA S/O LATE MUNIKRISHNAPPA AGED ABOUT 40 YEARS R/A NO.461 5TH CROSS BHOVI COLONY BASAVESHWARANAGAR BENGALURU - 560 079

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4 - NC: 2024:KHC:5377 WP No. 33665 of 2017

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SRI HARISH S/O LATE MUNIKRISHNAPPA AGED ABOUT 31 YEARS R/A NO.461 5TH CROSS BHOVI COLONY BASAVESHWARANAGAR BENGALURU - 560 079

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SRI MAHADEVA S/O CHIKKANNA AGED ABOUT 47 YEARS R/A NO.132 7TH CROSS SHARADANAGAR GKVK POST BENGALURU - 560 065

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SRI C RAMESH S/O CHIKKANNA AGED ABOUT 43 YEARS R/A 2ND MAIN ROAD CHIKKABOMMASANDRA GKVK POST BENGALURU - 560 065

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SRI G ARASAYYA S/O GANGAARASAIAH AGED ABOUT 63 YEARS R/A NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA GKVK POST BENGALURU - 560 065

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SRI CHANDRASHEKARAIAH S/O ANJANAPPA AGED ABOUT 51 YEARS R/A NO.50 2DN CROSS SOMESHWARANAGAR GKVK POST,BENGALURU - 560 065

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SMT JAGADAMBHA W/O NARASIMHA REDDY AGED ABOUT 54 YEARS R/A NO.11 3RD MAIN ROAD NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST,BENGALURU - 560 065

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5 - NC: 2024:KHC:5377 WP No. 33665 of 2017

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SMT YASHODHA W/O G S KUMARASWAMY AGED ABOUT 50 YEARS R/A NO.12 3RD CROSS NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST, BENGALURU - 560 065

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SMT B SOWBHAGYA W/O JAYARAMAIAH AGED ABOUT 52 YEARS R/A NO.1/C 3RD CROSS NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST, BENGALURU - 560 065

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SMT KUSUMA W/O VASUDEVAPPA AGED ABOUT 59 YEARS NO.6 R/A NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST, BENGALURU - 560 065

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SRI N S BHAT S/O NARAYANA BHATTA AGED ABOUT 54 YEARS R/A NO.10 NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST, BENGALURU - 560 065

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SRI B K MANJUNATH S/O B KRISHNAPPA AGED ABOUT 51 YEARS R/A NO.7 II MAIN ROAD NEAR SUNSHINE PUBLIC SCHOOL CHIKKABOMMASANDRA VILLAGE GKVK POST, BENGALURU - 560 065

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SRI HANUMANNA S/O NARASAPPA AGED ABOUT 57 YEARS WORKING AT L & T SITE NO.13 NO.1A 7TH CROSS MATHRU LAYOUT GKVK POST, BENGALURU - 560 065

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6 - NC: 2024:KHC:5377 WP No. 33665 of 2017

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SRI P N NARASIMHA REDDY S/O NAYATHAPPA AGED ABOUT 62 YEARS R/A NO.19SID GANDHI KRUPA SINCE CENTER TEACHERS QUARTERS BENGALURU - 560 065

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SRI B S SUNDARAPPA S/O SHIVAPPA AGED ABOUT 74 YEARS R/A NO.54 KRISHNANAGAR LAYOUT II STAGE RAJMAHAL VILAS BENGALURU - 560 009

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SMT N MANJULA W/O K SEENAPPA AGED ABOUT 52 YEARS R/A NO.26 II CROSS KAVERI LAYOUT TAVAREKERE MAIN ROAD BENGALURU - 560 029

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SRI JAGANATH S/O NARAYANA GOWDA AGED ABOUT 67 YEARS R/A NO.233 (NEW NO.526) 1ST FLOR 1ST BLOCK JAYANAGAR, BENGALURU

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SRI N J NARASIMHA BABU S/O SRI JAY RAO AGED ABOUT 40 YEARS R/A NO.526 BHARAMANAGARA BEEDI YELAHANKA TOWN BENGALURU - 560 064

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SMT PADMA W/O MOHAN BABU AGED ABOUT 49 YEARS R/A CHIKKABOMMASANDRA VILLAGE GKVK POST, BENGALURU - 560 065

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…RESPONDENTS

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(BY SRI MANJUNATH HEGDE FOR; SRI T SESHAGIRI RAO FOR R1 TO R6;

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NC: 2024:KHC:5377 WP No. 33665 of 2017

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SRI T P SRINIVASA FOR R10, 11, 14 TO 17; R8, 18 TO 21, 23, 28- SERVED UNREPRESENTED; R13 IS MINOR AND REP. BY R11; R12, R22, R24 TO 27, R29 TO 39 ARE DELETED VIDE ORDER DATED 13.06.2022;

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R1-R6 AND R8 ARE TREATED AS LR'S OF DECEASED R7)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED IN IA UNDER ORDER VI RULE 17 IN O.S.NO.1590/2015 DATED 18.07.2017 BY THE LEARNED XLI ADDITIONAL CITY CIVIL JUDGE AT BANAGLORE [CCH-42] AT ANNEXURE-J AND ETC.,

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THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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Defendant No.3 in OS No. 1590 of 2015 on the file of the learned XLI Additional City Civil Judge, Bengaluru, is seeking writ of certiorari to quash the order dated 18.07.2017 allowing IA filed under Order VI Rule 17 of CPC and permitting the plaintiffs to amend the plaint.

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Heard Sri. K.R. Sreenivasa Patavardhan, learned counsel for the petitioner, Sri. Manjunath Hegde, learned counsel for respondent Nos.1 to 6 and Sri T P Srinivasa, learned counsel for respondent Nos.9 to 11 and 14 to 17. Perused the materials on record.

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NC: 2024:KHC:5377 WP No. 33665 of 2017

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Learned counsel for the petitioner contended that respondent Nos. 1 to 6 as plaintiffs filed the suit OS No. 1590 of 2015 seeking various reliefs, including declaration of their title, to set aside various sale deeds and the decree passed in RFA No.757 of 2013 and for partition and separate possession. A specific stand was taken by the plaintiffs in the plaint that the defendants have failed to redeem the mortgage, therefore the plaintiffs are in adverse possession and enjoyment of the schedule property and perfected their title as such, by operation of law. Later, the application was filed under Order VI Rule 17 of CPC seeking the remove several paragraphs in the original plaint, wherein, it is pleaded that the plaintiffs have perfected their title by adverse possession against the real owner and in its place wanted to include a paragraph that since the mortgage was not redeemed, the right to redeem has been extinguished and consequently, the plaintiffs acquired title over the property by operation of law. It is nothing but withdrawing the admission made in the original plaint, which is not permissible under law.

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NC: 2024:KHC:5377 WP No. 33665 of 2017

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Learned counsel also submitted that earlier OS No.1332 of 2012 was filed by the mother of plaintiff Nos.1 to 6 seeking ownership on similar grounds. The plaint came to rejected by the Trial Court. When the said judgment was challenged by filing RFA No. 757 of 2013, even the RFA was dismissed. Now the said judgment and decree in the said RFA is tried to be challenged, which is not permissible under law. Under such circumstances, he prays for allowing the petition by setting aside the impugned order.

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Per contra, learned counsel for respondent Nos. 1 to 6 submitted that, these respondents are the plaintiffs before the Trial Court. They have filed the suit for declaration and their title by operation of law and for other reliefs. When the plaintiffs have specifically claimed that they are the absolute owners of the schedule property by operation of law, even after amendment, the plaintiffs have not amend the prayer column. On the other hand, very same prayer holds good. However, in the body of plaint, the plaintiffs have claimed right by adverse possession. Therefore, the plaintiffs want to delete the said portion in the plaint and to contend that they have acquired title by operation of law.

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Learned counsel submitted that even as the inconsistent pleas are not permitted to be pleaded. But in the present case, whether the plaintiffs have acquired title as the mortgage was not redeemed is a question of law and therefore, there cannot be any inconsistency. Under such circumstances, the Trial Court was right in allowing the application. Accordingly, he prays for dismissal of the petition.

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Learned counsel for respondent Nos.9 to 11 and 14 to 17 submitted that they are the purchasers of the property and they are supporting the contention of defendant No.3. The Trial Court has committed an error in allowing the application. Hence, he prays for allowing the petition by setting aside the impugned order.

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Initially, the plaintiffs filed the suit for declaration of title, to set aside various sale deeds and for partition and separate possession. It is specifically pleaded in the plaint that there was a mortgage, where the defendants are the mortgagers and plaintiffs are the mortgagees. The defendants failed to redeem the mortgage and the plaintiffs have perfected their title by adverse possession and therefore, they are to be

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NC: 2024:KHC:5377 WP No. 33665 of 2017

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declared as absolute owners by operation of law. Now the plaintiffs wants to withdraw the pleading is paragraph No.8 to the effect that they have perfected their title by adverse possession. But on the other hand, they want to insert new paragraph to contend that since the defendants failed to redeem the mortgage, their right in respect of the property was extinguished and consequent upon which, by operation of law the father of the plaintiffs acquired absolute title over the property. Accordingly, few other paragraphs where there is reference to adverse possession is proposed to be deleted and in its place the words operation of law was intended to be included.

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Now the question arises as to whether the plaintiffs

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can delete portion of paragraph No.8, where the plaintiffs have taken specific contention regarding acquiring the title by adverse possession and in its place contend that on failure on the part of the defendants to redeem the mortgage, their right extinguished and the plaintiffs acquired title by operation of law. Definitely, these two contentions are inconsistent with one another. When the plaintiffs filed the suit for declaration and for other reliefs, the defendants have taken specific contention in

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NC: 2024:KHC:5377 WP No. 33665 of 2017

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the written statement. The defendants are entitled to take advantage of the pleadings in the plaint initially made by the plaintiffs. Now by deleting the portion of pleading in the plaint, the plaintiffs cannot withdraw such contentions which was advantageous for the defendants. It is well settled proposition of law that a party cannot be permitted to withdraw his contention or admission which has created right in favour of the defendants in defending the suit.

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It is to be noticed that, as rightly contended by learned counsel for the respondents, in the prayer the plaintiffs have not sought for declaration of their title by adverse possession, but they have sought for declaration by operation of law. The said operation of law is whether by adverse possession or by extinguishment of right of the defendants over the schedule property is to be considered by the Trial Court after full-fledged trial. Therefore, I am of the opinion that the plaintiffs cannot be permitted to delete the portion of paragraph No.8, where a specific contention was taken, as the same would prejudice the right of the defendants. But on the other hand, if the plaintiffs are denied the right to remove or delete

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any portion of the pleading, which is already on record and if they are permitted to plead a portion of pleading, which they proposed to be included, no prejudice would be caused to the defendants and on the other hand, the plaintiffs will take the risk of proving their contention about their right over the schedule property. Therefore, I am of the opinion the application filed under Order VI Rule 17 of CPC could be allowed in part.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The Writ Petition is allowed in part.

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(ii) The order dated 18.07.2017 passed in OS No. 1590

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of 2015 on the file of learned XLI Additional City Civil Judge, Bengaluru is hereby set aside.

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(iii) Consequently, IA filed under Order VI rule 17 of CPC is allowed in part.

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(iv) The prayer of the plaintiffs to remove the wordings in paragraph Nos. 8, 10 and 11 of the plaint is rejected.

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NC: 2024:KHC:5377 WP No. 33665 of 2017

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However, they are permitted carry out the amendment as sought in the plaint to insert the wordings proposed to be included in paragraph Nos.8 and 11.

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Sd/JUDGE

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SPV List No.: 1 Sl No.: 2

Smt. Yashodamma v. Smt. Sarojamma

Case brief

What is this about?

What did the court decide?

Smt. Yashodamma v. Smt. Sarojamma

Case brief

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What did the court decide?

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