Partly allowed

Smt.R.Thejavathi v. the President

Karnataka HC21 Oct 2024WP/5653/2023

Case brief

AI extract

What is this about?

A plaintiff in a title dispute over an allotted site sought to amend her plaint at trial stage to challenge a rectification deed, describe an encroached portion as 'B' schedule, and seek recovery of possession. The court partly allowed the petition: amendments relating to encroachment and possession were allowed; amendment challenging the 1995 rectification deed was disallowed.

What did the court decide?

Amendment re encroachment, 'B' schedule description and recovery prayer allowed; amendment challenging rectification deed dated 14.11.1995 disallowed; IA.No.1/2024 dismissed.

Smt.R.Thejavathi Vs the President — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 5653 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. R.THEJAVATHI W/O. SRI B.S. NAGESH AGED ABOUT 65 YEARS R/AT NO.10/4-1, 4^TH MAIN PALACE GOTTAHALLY BENGALURU-560 003.

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…PETITIONER

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(BY SRI. NANDISH GOWDA G.B., ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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THE PRESIDENT COFFEE BOARD EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., COFFEE BOARD BUILDINGS NO.1, DR. AMBEDKAR VEEDHI BENGALURU-560 001.

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THE COFFEE BOARD EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., COFFEE BOARD BUILDINGS NO.1, DR. AMBEDKAR VEEDHI BENGALURU-560 001. REPRESENTED BY ITS SECRETARY.

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SMT. KAMALAMMA W/O. LATE SRI. B.S. JAVARAPPA

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SMT. MAMATHA D/O. LATE SRI. B.S. JAVARAPPA

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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SMT. SUNITHA D/O. LATE SRI. B.S. JAVARAPPA

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SMT. ANITHA D/O LATE SRI. B.S. JAVARAPPA

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RESPONDENTS NO. 3 TO 6 ARE R/AT NO.477, 5^TH MAIN COFFEE BOARD LAYOUT HEBBAL, KEMPAPURA BENGALURU-560211.

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…RESPONDENTS

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(BY SRI. D. K. SRIRAMAPPA, ADVOCATE FOR R1 SRI. N. RAMACHANDRA, ADVOCATE FOR R3, R4 AND R6 R2 AND R5 SERVED UNREPRESENTED)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 04.02.2023 PASSED BY THE COURT OF THE 41^ST ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH42) ON IA NO.1/2020 IN OS NO.5070/2013 VIDE ANNX-A AND CONSEQUENTLY ALLOW IA NO.1/2020 IN OS NO.5070/2013 PENDING ON THE FILE OF THE 41^ST ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-42) AND ETC.,

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THIS PETITION COMING ON FOR ORDERS, 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 plaintiff in O.S.No.5070/2013 on the file of the Principal City Civil Judge, Bengaluru has filed this petition challenging an order dated 04.02.2023 by which, I.A.No.1/2020

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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filed by her under Order VI Rule 17 read with Section 151 of Civil Procedure Code was rejected.

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2.(i) The suit in O.S.No.5070/2013 was filed for declaration that the plaintiff is the owner of site bearing No.656 as per the sale deed dated 05.09.2002 and to restrain the legal representatives of defendant No.3 from interfering with her possession in the suit property. The plaintiff also sought for a declaration that the rectification deed dated 09.06.2005 executed in favour of defendant No.3 was null and void. In short, the facts pleaded in the plaint were that the plaintiff and the defendant No.3 were ex-employees of Coffee Board and were members of the defendant No.2. The defendant No.2 formed a layout of residential sites during the year 1990 which was duly approved by the Bengaluru Development Authority. Based on the notification issued by the defendant No.2 inviting applications for allotment, the plaintiff applied for allotment of site. Accordingly, she was allotted a site bearing No.656. The defendant No.3 who was a member of the defendant No.2 had also applied for allotment of site. Accordingly site No.655 was allotted to the defendant No.3. The plaintiff claimed that site bearing No.655 lay on the western side of site No.656. The

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plaintiff claimed that an extra land was given to the defendant No.3 which in fact was a portion of the site bearing No.656 that was allotted to her. The additional portion that was allotted to the defendant No.3 was incorporated by executing a rectification deed in favour of the defendant No.3. The plaintiff alleged that the said rectification deed was therefore not binding upon her. Therefore, she sought for declaration of her title to site No.656 and for declaration that the rectification deed does not bind her right, title and interest on the said site.

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(ii) The suit was contested by the legal representatives of the deceased defendant No.3.

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(iii) The Trial Court framed issues and set down the suit for trial. When the suit was listed for evidence of the plaintiff, an application was filed by the plaintiff for amendment of the plaint to incorporate certain additional facts that had transpired subsequent to the filing of the suit. The plaintiff sought for additional prayers to declare a rectification deed dated 14.11.1995 executed in favour of the defendant No.3 as not binding upon her right, title and interest in respect of site bearing No.656. She also claimed that the defendant No.3 had

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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encroached into a portion of site No.656 and desired to describe the encroached portion as 'B' schedule to the suit. She claimed that legal representatives of defendant No.3 had constructed a building on the encroached portion and therefore, wanted to incorporate an additional relief to recover possession of the encroached portion.

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(iv) The said application was contested by the legal representatives of defendant No.3 on the ground that the plaintiff was fully aware of the rectification deed dated 14.11.1995, since the same was referred to in the plaint and therefore there was an inordinate delay in filing the application to challenge the rectification deed dated 14.11.1995. It was also contended that the plaintiff had sought for an additional relief of recovery of possession of the encroached portion. It is contended that allowing the application to incorporate the additional relief would result in changing the nature of the suit as well as cause of action.

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The trial Court after considering the contentions so urged by the plaintiff and legal representatives of defendant No.3 rejected the application in terms of the impugned order.

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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Being aggrieved by the said order, the plaintiff is

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before this Court in this writ petition.

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Learned counsel for the plaintiff contended that the

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sale deed in respect of site bearing No.656 was executed in favour of the plaintiff on 31.08.2002 and registered on 05.09.2002. The sale deed executed in favour of the defendant No.3 in respect of site bearing No.655 was executed on 25.07.1995. He contends that a rectification deed was executed in favour of the defendant No.3 on 14.11.1995 by which, the measurement of the property was rectified. After such rectification, the site bearing No.656 was conveyed to the plaintiff. Later the defendant No.2 again executed another rectification deed on 09.06.2005 by which, the boundaries of site No.655 was altered. He contends that the plaintiff had sought for declaration of her title in respect of site No.656 and to declare that the rectification deed in favour of the defendant No.3 has not binding upon her. He contends that certain subsequent events namely, rejection of the plaint initially by the Trial Court which was questioned before this Court in RFA No.1777/2018 which was allowed and remanded back have all to be brought on record. He contends that in the meanwhile,

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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the legal representatives of defendant No.3 had encroached into a portion of the suit property namely site bearing No.656 and therefore, the plaintiff was advised to seek for additional relief to direct the legal representatives of defendant No.3 to demolish the illegal construction put up and to hand over the same to the plaintiff. He contends that the amendment sought for was necessary for a full and fair adjudication of the dispute between the parties. He contended that the Trial Court committed an error in construing an averment made in the plaint as admission of the legality of the rectification deed dated 14.11.1995. He contended that the defendant No.2 had formed a layout of residential sites and if the plan was approved by the Bengaluru development authority, it is for the defendant No.3 to establish that the dimensions of the site bearing No.655 was something more that was conveyed under the sale deed dated 25.07.1995. He contends that since the legal representatives of defendant no.3 had encroached into site No.656 that belonged to the plaintiff, the plaintiff was entitled to seek for additional relief.

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This is however countered by the learned counsel

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for legal representatives of defendant No.3, who contends that

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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the plaintiff was aware of the rectification deed dated 14.11.1995. However, she did not choose to challenge the same when the suit was filed. He therefore contends that this application filed for amendment of the plaint is belated and no reasons are mentioned for filing the belated application. He further contends that the sale deed was executed initially in favour of defendant No.3 and thereafter in favour of the plaintiff and therefore, there is no mischief as alleged by plaintiff. He further contends that the plaintiff had specifically admitted in paragraph No.8 of the plaint that the boundaries and measurement mentioned in the rectification deeds and the sale deed were just and proper and therefore, she cannot be allowed to now resile and withdraw the said admission. He therefore, contends that the impugned order passed by the Trial Court is just and proper and does not warrant interference.

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I have considered the submissions of the learned counsel for the plaintiff as well as the learned counsel for legal representatives of defendant No.3.

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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A perusal of the averments made in the plaint shows that the plaintiff referred to a sale deed and a rectification deed executed in favour of the defendant No.3 and contended that as per the schedules mentioned in the respective sale deeds they are unquestionable, undisputed and are binding and enforceable in law. The plaintiff had challenged the rectification deed dated 09.06.2005 executed by the defendant No.2 in favour of the defendant No.3 by which, the boundaries of the site bearing No.655 were altered. Long after the suit was filed and when the case was set down for evidence of the parties, the plaintiff filed an application contending inter alia that the rectification deed dated 14.11.1995 was in respect of a portion of a site bearing No.656 that was allotted to her. She has also alleged that the legal representatives of the defendant No.3 had encroached into said portion and the encroachment portion is sought to be described as 'B' schedule in the suit. She also sought for additional relief to demolish the illegal construction put up over the 'B' schedule property.

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As rightly observed by the Trial Court, the plaintiff who had initially admitted the legality of the rectification deed dated 14.11.1995, cannot be allowed to withdraw said

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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admission by filing an application for amendment of the plaint. However, it is the claim of the plaintiff that the legal representatives of defendant No.3 had encroached into a portion of site bearing No.656 based on the rectification deed dated 09.06.2005. Since the plaintiff claimed title to site bearing No.656, and since the plaintiff claimed that during the pendency of the suit, the legal representatives of defendant No.3 had encroached into a portion of site No.656, the plaintiff was entitled to seek for additional reliefs to direct the legal representatives of defendant No.3 to demolish the construction put up by them on the schedule 'B' property and to hand over the same to the plaintiff.

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In that view of the matter, the application filed by the plaintiff cannot be allowed in its entirety. Consequently, the following order is passed:

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ORDER

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(i) Writ petition is allowed in part.

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(ii) Amendment sought for by the plaintiff at paragraph No.16(c) in so far as it relates to rectification deed dated 14.11.1995 is disallowed. However, portion of paragraph

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NC: 2024:KHC:42063 WP No. 5653 of 2023

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No.16(c) relating to the alleged

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encroachment by the defendant No.3 and alleged dispossession of plaintiff is allowed.

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(iii) The amendment to rename the suit property as 'A' schedule property and to incorporate 'B' schedule property is allowed.

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(iv) Amendment sought for by the plaintiff to incorporate additional prayer (iii)(b) is allowed.

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(v) It is made clear that the plaintiff shall be entitled to explain the admission of the execution of the rectification deed dated 14.11.1995 and any observation contained herein shall not affect it.

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In view of disposal of main petition, I.A.No.1/2024 does

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not survive for consideration and the same is dismissed.

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Sd/(R. NATARAJ) JUDGE

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HJ List No.: 1 Sl No.: 29

Smt.R.Thejavathi v. the President

Case brief

What is this about?

What did the court decide?

Smt.R.Thejavathi v. the President

Case brief

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