Allowed

Smt Susheelamma v. Smt Nagamma

Karnataka HC23 Jul 2024WP/60440/2016

Case brief

AI extract

What is this about?

Writ petition against an order allowing a plaint amendment adding a plea of adverse possession in a declaration and injunction suit. Holding that a claim of ownership under a sale deed and perfection of title by adverse possession cannot go together and that the belated amendment changed the suit's nature, the court set aside the trial court's order.

What did the court decide?

Order dated 07.04.2016 allowing IA No.III in O.S.No.408/2012 set aside; trial court directed to dispose of the suit within eight months.

Smt Susheelamma Vs Smt Nagamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:28788 WP No. 60440 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 60440 OF 2016 (GM-CPC)

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BETWEEN:

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SMT. SUSHEELAMMA, W/O MUNISWAMY, AGED ABOUT 69 YEARS,

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SRI. M. NARENDRA, S/O LATE MUNISWAMY, AGED ABOUT 44 YEARS, BOTH ARE RESIDENT OF SULUR VILLAGE, VOKKALERI HOBLI, KOLAR TALUK AND DISTRICT – 563 101.

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…PETITIONERS

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(BY SRI. JEEVAN KUMAR B S., ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SMT. NAGAMMA, AGED ABOUT 78 YEARS, W/O LATE THIMMAIAH, R/OF SULUR VILLAGE, VOKKALERI HOBLI, KOLAR TALUK AND DISTRICT – 563 101. SINCE DECEASED BY LR’S

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1A. VENKATESHAPPA S/O LATE SMT.NAGAMMA AGED ABOUT 60 YEARS

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1B. MANJUNATH S/O.LATE VENKATASWAMI AGED ABOUT 36 YEARS

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1C. VENKATESH S/O LATE VENKATASWAMI AGED ABOUT 34 YEARS

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2 - NC: 2024:KHC:28788 WP No. 60440 of 2016

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ALL ARE RESIDENTS OF SULUR VILLAGE, VOKKALERI HOBLI KOLAR TALUK, KOLAR DISTRICT

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1D. SMT.VENKALAKSHMAMMA W/O.LATE VENKATASWAMY D/O.LATE NAGAMMA AGED ABOUT 60 YEARS R/AT SULURU VILLAGE VAKKALERI HOBLI KOLAR TALUK & DISTRICT-563 133

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1E. SMT.THIPPAMMA W/O.LATE MUNIYAPPA D/O.LATE NAGAMMA AGED ABOUT 64 YEARS R/AT C/O.KRISHNA ANAND ROYAL HAIR DIRESS GUDDIBAGALU, DEVANAHALLI TOWN BENGALURU RURAL DISTRICT

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1F. SMT.JAYAMMA W/O LATE VENKATESH D/O.LATE NAGAMMA AGED ABOUT 62 YEARS R/AT HOSAHALLI, BANGARPAT TALUK KOLAR DISTRICT-563 162

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1G. SMT.ASHWATHAMMA W/O.ASHOL D/O.LATE NAGAMMA AGED ABOUT 62 YEARS R/AT THOTTIGANAPALLI VIJAYAPURA VILLAGE CHIKKABALLAPURA DISTRICT

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1H. SMT.SUJATHA W/O.NARAYANASWAMY D/O LATE NAGAMMA AGED ABOUT 56 YEARS R/AT SULURU VILLAGE VOKKALERI HOBLI KOLAR TALUK & DISTRICT-563 133

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…RESPONDENTS

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(BY SRI. T.K. RAJAGOPALA., ADVOCATE FOR PRAPOSED R1 (B), R1 (C), R1(D) & R1(H)

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3 - NC: 2024:KHC:28788 WP No. 60440 of 2016

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V/O/DATED: 23.07.2024, NOTICE TO R1(C, F & G) ARE HELD SUFFICIENT

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PROPOSED R1(A) & R1(E) ARE SERVED AND UNREPRESENTED)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.4.2016 IN ANNEXURE – D PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) AND JMFC, KOLAR, IN O.S.NO.408/2012 IN ALLOWING I.A.NO.III FILED BY THE RESPONDENT UNDER ORDER VI RULE 17 (I.A.NO.III) CODE OF CIVIL PROCEDURE 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: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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(PER: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI)

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Aggrieved by the order passed in IA No.3 dated 07.04.2016 by the Principal Civil Judge, Junior Division and JMFC, Kolar, the defendant is before this Court.

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The respondent herein who is the plaintiff in the suit had filed a suit for declaration to declare his title in respect of plaint schedule property; a permanent injunction restraining the defendants, their servants from interfering with the plaintiff's peaceful possession and enjoyment of the property. It is the

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case of the plaintiff that the suit schedule property was purchased under registered sale deed dated 18.1.1969 and

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NC: 2024:KHC:28788 WP No. 60440 of 2016

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eversince they have been in possession of the property. It is their case that defendants somehow got the katha changed in their favour without any basis and on 24.05.2012 the defendants came near the schedule property and obstructed the possession of the plaintiff and denied the title of the plaintiff, as such the cause of action arose on 24.05.2012 then they have come up with the present suit. On 14.06.2012 the suit was filed. The defendant has filed his written statement on 08.10.2012. In the written statement the defendant has stated that in respect of the very same property the plaintiff had suffered a decree in O.S. No.105/1978 dated 12.04.1984 passed by the Additional Civil Judge, Kolar and the said decree is confirmed by the II Additional District and Sessions Judge, Kolar, in R.A. No.14/1984 dated 17.12.1993. It is the case of the defendant that they have been in possession of the property from a long time and the plaintiff had no locus to file such a suit. Thereafter the present IA under Order 6 Rule 17 came to be filed in the year 2016. Now by virtue of this amendment the plaintiff wants to add the following paragraphs which reads as follows:

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" In the prayer column:

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To add para Aa. The plaintiff submits that she sold the schedule property to the 1^st defendant by way of registered sale deed dated 02.07.1972 but did not deliver possession of the schedule property to the 1^st defendant and 1^st defendant filed a suit against the plaintiff for delivery of possession in O.S. No.105/1978 and the suit was decreed and against the said decree the plaintiff preferred appeal in R.A. No.14/1984 and the said appeal was dismissed in 1986 and decreed for delivery of possession of the schedule property. The 1^st defendant has not taken any possession of the schedule property from the plaintiff till date and the plaintiff is in possession for past 30 years with the knowledge of the defendants without any interference and hence the plaintiff has perfected the title to the schedule property by way of adverse possession.

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In the prayer column:

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In prayer column (a) to insert at the end of the prayer "the plaintiff has perfected the title to the schedule property by way of adverse possession".

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3 . The petitioner/defendant has not filed his objection.

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The Court by order dated 7.4.2016 impugned before this Court simply has allowed the application stating that the proposed amendment is not introducing a new case and also it is not

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changing the cause of action. It will not in any way affect the case of the defendant. The burden of proving the perfection of title by adverse possession is on the plaintiff. Hence IA No.3 is allowed and plaintiff is permitted to amend the plaint.

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4.Learned counsel appearing for the petitioner/defendant submits that when in the original plaint she has stated that she is the owner of the property which is purchased on 08.01.1969 and she has been in possession of the property. Now by virtue of the amendment she is seeking adverse possession in respect of plaint schedule properties. Learned counsel submits that when it is claimed that she is owner of the property, now question of perfecting the title by adverse possession cannot arise and it is altogether a different relief which changes the entire cause of action and such a prayer cannot be allowed. It is further submitted that when she had filed the plaint wayback and written statement was filed on 18.12.2012 and when she has stated all the details were placed on record by virtue of this amendment she wants to incorporate that the suit filed for declaration by the defendant in respect of the very same property is allowed and the appeal preferred by the plaintiff herein was also dismissed. But she has not chosen to file any

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application right from 8.10.2012. Now on 21.1.2016 she has come up with this application. When this application is filed under Order VI Rule 17 the trial Court ought to have given a reason for allowing the same and just saying that it would not cause any prejudice to the defendant and that it would not change the cause of action is contrary to the facts and also to the law laid down by this Court and the Hon’ble Apex Court. It is submitted that the writ petition is liable to be allowed and the I.A. filed under Order 6 Rule 17 is liable to be dismissed.

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5.Initially the respondent was served and she was represented by the advocate. Since the respondent died, an application was filed to bring the legal representatives on record and also filed an application to take out notice to the legal representatives of respondent No.1 by way of substituted service and this Court on 18.06.2024 had permitted to take out substituted service of notice by way of paper publication on respondent No.1(f) and R1(g). As far as R1(c) is concerned, the postal track is shown as refused and this Court has passed an order holding that notice to R1(c) is held sufficient and permitted to take out paper publication in respect of R1(f) and R1(g) and he has taken out paper publication, filed a memo to

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that effect, the same is accepted and notice to R1(c), R1(f) and R1(g) is held sufficient. The proposed respondents - R1(B), R1(D) and R1(H) are represented through their counsel Sri T K Rajagopala.

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6.Having heard the learned counsel for the parties, perused the entire material on record, the suit is filed by the respondent herein seeking declaration and for injunction. According to her she has purchased the property in the year 1969 and she is the absolute owner of the property and the defendant has denied her title and has been interfering with the property. Plaint was filed on 14.06.2012 and the written statement was filed on 8.10.2012, wherein she has stated all the facts with regard to the earlier suit in respect of the property and the appeal filed by the plaintiff and the suit came to be dismissed and according to the defendant she has been in possession of the property. The plaintiff having kept quiet for four years has come up with this IA under Order VI Rule 17 seeking amendment of the pleadings. The trial Court by way of a cryptic order has allowed the petition simply observing that it will not alter the nature of the suit and no prejudice would be caused. When the earlier suit is filed for declaration and the

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plaintiff had contested the suit, when all the facts are in her knowledge she should have mentioned the facts in the plaint. She has simply asked for the declaration. Even initially on 18.10.2012 when defendant has filed the written statement then also plaintiff kept quite and now she has come up with this application in the year 2016. The observation of the Court below that it would not alter the nature of the suit is on the face of it is not correct and legal. When a person is seeking a declaration of the property basing on the sale deed and now coming up with a plea that she has perfected the title by adverse possession, both the reliefs cannot go together and it will altogether change the nature of the suit. That apart why the plaintiff had not stated all these facts in the plaint and even after the written statement is filed. Such fact is also not considered by the Court. In the considered opinion of this Court, the order impugned is contrary to the law and to the facts of the case. Accordingly, this Court is passing the following:

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10 -

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NC: 2024:KHC:28788 WP No. 60440 of 2016

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ORDER

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The writ petition is Allowed and the order dated 07.04.2016 passed in O.S.No.408/2012 is set aside.

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As this is a suit of 2012, the trial Court shall dispose of the same as expeditiously as possible, but not later than eight months.

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All IA’s in the writ petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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YKL List No.: 1 Sl No.: 23

Smt Susheelamma v. Smt Nagamma

Case brief

What is this about?

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Smt Susheelamma v. Smt Nagamma

Case brief

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