Allowed

Smt R Sarojamma v. Smt Shanthamma

Karnataka HC19 Dec 2024WP/33769/2024

Case brief

AI extract

What is this about?

Plaintiff in a partition suit sought amendment of the measurement and boundaries of item No.3 of the suit schedule after a compromise decree; the trial court rejected the application. The High Court set aside that order under Article 227 and permitted the amendment, subject to not affecting third-party rights.

What did the court decide?

Impugned trial court order dated 30.10.2024 set aside; amendment application allowed; plaintiff permitted to amend boundaries and measurement of item No.3 of suit schedule.

Smt R Sarojamma Vs Smt Shanthamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:52919 WP No. 33769 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 33769 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. R. SAROJAMMA DAUGHTER OF LATE RANGAPPA AND LAKSHMAMMA, AGED ABOUT 77 YEARS, RESIDING AT NO.116/91, 3^RD CROSS, KANAKANAPALYA, JAYANAGARA, BENGALURU - 560 011.

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…PETITIONER

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(BY SRI. NAGAIAH, ADVOCATE FOR SRI. SHREEDEEP, ADVOCATE)

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AND:

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SMT. SHANTHAMMA WIFE OF LATE SEEBANNA, AGED ABOUT 68 YEARS.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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MR. S.RAVI, SON OF LATE SEEBANNA, AGED ABOUT 52 YEARS,

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BOTH ARE RESIDING AT NO.22, KUMARA NIVASA, SRI KALAPPA RESIDENCY, PUTTANNA ROAD, BASAVANAGUDI, BENGALURU - 560 004.

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MR.NARASIMHA MURTHY, SON OF LATE MR. RANGAPPA AND SMT. LAKSHMAMMA, DIED ON 25.09.2024 (RESPONDENTS NO.3 AND 4 ARE THE LRS

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2 - NC: 2024:KHC:52919 WP No. 33769 of 2024

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OF NARASIMHA MURTHY ALREADY ON RECORD.

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MR. NARAYANA, SON OF SRI. NARASIMHAMURTHY, AGED ABOUT 45 YEARS.

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SMT. REKHA DAUGHTER OF SRI. NARASIMHAMURTHY, AGED ABOUT 41 YEARS 4 AND 5 ARE RESIDING AT SAHIKALKI NILAYA, 1-F ROAD, 1^ST MAIN ROAD, KUVEMPUNAGARA, HOSAGUDDADAHALLI, MYSURU ROAD, BENGALURU - 560 026.

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…RESPONDENTS

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(BY SRI. VINAY KUMAR N.D., ADVOCATE FOR CAVEATORS/RESPONDENT NOS.1 TO 4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED IN BY XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-12) IN O.S NO.5571/2012 DATED 30.10.2024 AT ANNEXURE-E AND ALLOWING THE AMENDMENT APPLICATION, PERMITTING THE PETITIONER TO AMEND THE SCHEDULE.

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

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3 - NC: 2024:KHC:52919 WP No. 33769 of 2024

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiff in O.S. No.5571/2012 pending on the file of the XVI Additional City Civil and Sessions Judge, Bengaluru, is before this Court challenging the correctness of an order dated 30.10.2024 by which an application filed by her to amend the plaint schedule i.e., measurement and the boundaries of item No.3 of the suit schedule properties in O.S. No.5571/2012 was rejected.

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The suit in O.S. No.5571/2012 was filed for partition and separate possession of the plaintiff's 1/3^rd share in the suit schedule properties. Item No.3 of the suit schedule properties was described as follows:

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"Item No.[3]. All that piece and parcel of the preemies bearing No.14, situated at Police road, cotton pet, Narasaimhamesti lane, Begnalooru-53 of BBMP jurisdiction measuring east to west 40 feet and north to south 16 feet with all amenities of ground, first and second floor, and bounded as:

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East by Premises No.7 West by House property North by Premises No.13 South by House property

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4 - NC: 2024:KHC:52919 WP No. 33769 of 2024

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Market value of the property is at rupees 10,00,000-00"

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The suit was decreed on 20.12.2014 and FDP No.65/2015 filed later was disposed off on 14.12.2023 as per a compromise petition. However, in the schedule to the compromise petition, the property that was allotted to the plaintiff was shown as:

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"All that piece and parcel of the premises bearing No.14, situated at Police Road, Cottonpet, Narasimhamaistry Lane, Bengaluru-560053, of BBMP jurisdiction, measuring East to West 34.6 feet and North to South 16 feet, with all amenities of Ground, First and Second Floors and bounded On:

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East by : Kalappa's House; West by : Government Galli; North by : Property No.9; South by : Mandi Javarappa's House"

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After the compromise decree, an application was

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filed by the plaintiff in the suit to amend the measurement and

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the boundaries of item No.3 of the suit schedule properties as follows:

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"1. Measuring east to west 40 feet to be deleted and to insert it as Measuring east to west 34.6 feet.

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2. East By as Premises No.7, West by as House property, North by as Premises No.13,

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NC: 2024:KHC:52919 WP No. 33769 of 2024

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South by as House property to be deleted and to insert it as East by as Kalappa's House, West By as Government Galli, North by as Property No.9 and South by as Mandi Javarappa's House."

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This application was rejected by the Trial Court in terms of the impugned order on the ground that the plaintiff did not seek for amendment of the schedule even after the suit was decreed and Regular First Appeal in RFA No.1210/2015 was filed before this Court and Final Decree Proceedings were initiated. It also held that the plaintiff did not file an application to reopen the case.

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Being aggrieved by the said order, the plaintiff is before this Court.

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Learned counsel for the petitioner/plaintiff contended that the plaintiff was not aware of the boundaries of item No.3 of the suit schedule properties when the suit was originally filed. Later, she came to know of the mistake in the measurements as well as in the boundaries of item No.3 of the suit schedule properties and therefore, he submits that the inherent power of the Court was invoked for correction of the

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boundaries as well as the measurement of item No.3 of the suit schedule properties.

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Learned counsel for the respondents has no objection to allow the petition and correct the measurement and boundaries of item No.3 of the suit schedule properties. He contends that the application is filed to amend the boundaries as well as the measurement of the property which fell to the share of the plaintiff in the suit.

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In that view of the matter, the only indulgence that can be shown is to permit the plaintiff to amend the measurement and the boundaries of item No.3 of the suit schedule properties, subject, however, to the condition that the compromise decree shall not affect or impair the right of any other person in respect of any other property.

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Hence, this petition is allowed and the impugned order dated 30.10.2024 passed by the XVI Additional City Civil and Sessions Judge, Bengaluru, on the application filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 in O.S. No.5571/2012 is set aside. The said application filed by the plaintiff is allowed. The

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NC: 2024:KHC:52919 WP No. 33769 of 2024

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plaintiff is permitted to amend the boundaries and the measurement of item No.3 of the suit schedule properties. This is, however, subject to the condition that such amendment shall not affect or injure the rights of any other party in respect of any other property and in any form whatsoever.

Sd/(R. NATARAJ)

JUDGE

SMA

List No.: 1 Sl No.: 63

Smt R Sarojamma v. Smt Shanthamma

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Smt R Sarojamma v. Smt Shanthamma

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