Allowed

R.S. Shekharappa v. Onkarappa

Karnataka HC29 Oct 2024WP/8035/2023

Case brief

AI extract

What is this about?

In this writ petition, the High Court allowed the impugned order rejecting an amendment application and remanded it for reconsideration. Holding that amendment courts were entitled to seek higher reliefs like title by adverse possession before issue framing. Paragraph 47.

What did the court decide?

Impugned order dated 27.01.2023 set aside; amendment application allowed; plaintiffs permitted to amend plaint.

R.S. Shekharappa Vs Onkarappa — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:43755 WP No. 8035 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 8035 OF 2023 (GM-CPC)

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BETWEEN:

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R.S. SHEKHARAPPA S/O LATE SIDDAPPA AGED ABOUT 73 YEARS,

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R.S. NARAPPA S/O LATE SIDDAPPA AGED ABOUT 70 YEARS, BOTH ARE AGRICULTURISTS RESIDENTS OF JAMMENAHALLI, SIRIGERE POST, BHARAMASAGARA HOBLI, CHITRADURGA TALUK AND DISTRICT-577541.

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…PETITIONERS

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(BY SRI. GANGADHARAPPA A.V., ADVOCATE)

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AND:

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ONKARAPPA S/O. NIRVANAPPA AGED ABOUT 76 YEARS,

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

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SMT. LATHAMMA W/O. LATE SHIVAKUMAR AGED ABOUT 49 YEARS,

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MANU S/O. LATE SHIVAKUMAR AGED ABOUT 27 YEARS,

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SHIVU S/O. LATE SHIVAKUMAR AGED ABOUT 24 YEARS, ALL ARE AGRICULTURISTS RESIDENTS OF JAMMENAHALLI, SIRIGERE POST, BHARAMASAGARA HOBLI, CHITRADURGA TALUK AND DISTRICT-577541.

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…RESPONDENTS

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(BY SRI. BHARGAV G., ADVOCATE)

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NC: 2024:KHC:43755 WP No. 8035 of 2023

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER 27.01.2023 PASSED BY THE COURT OF II ADDL.CIVIL JUDGE AND JMFC AT CHITRADURGA ON IA NO.II IN OS.NO.5/2023 CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE-G AND THEREBY ALLOW THE APPLICATION I.A. NO.II AS PRAYED FOR PRODUCED CERTIFIED COPY OF WHICH IS AS ANNEXURE-E 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 plaintiffs in O.S.No.5/2023 on the file of II Additional Civil Judge and JMFC, Chitradurga, (henceforth referred to as 'Trial Court' for short) have filed this petition challenging an order dated 27.01.2023 passed therein, by which I.A.No.2 filed under Order VI Rule 17 of Civil Procedure Code was rejected.

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The suit in O.S.No.05/2023 was filed for perpetual injunction to restrain the defendants from interfering with their possession in 'A' and 'B' schedule properties. The plaintiffs claimed that they were owners of 'A' schedule property and that they were in continuous long possession of 'B' schedule property. In the plaint, they contended that the defendants though having no right over 'B' schedule property were unnecessarily trying to interfere with the settled possession of plaintiffs' in 'B' schedule property.

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NC: 2024:KHC:43755 WP No. 8035 of 2023

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The suit was contested by the defendants who claimed that they were the owners of 'B' schedule property and that the plaintiffs were unauthorisedly occupying it. Therefore, they sought for a counter claim to declare that the defendant No.1 is the owner of suit schedule properties and in lawful possession and enjoyment of the same and for perpetual injunction to restrain the plaintiffs from interfering with their peaceful possession. They also sought for an alternative relief to direct the plaintiffs to deliver possession of 'B' schedule property.

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The plaintiffs filed a reply to the counter claim and denied the entitlement of the defendants to the counter claim and contended that they were in peaceful and settled possession of 'B' schedule property.

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Before issues were framed in the suit, the plaintiffs filed an application under Order VI Rule 17 read with Section 151 of Civil Procedure Code to amend the plaint to incorporate additional paragraphs to contend that the defendant No.1 is the owner of 'B' schedule property and that they had perfected their title by adverse possession. They also sought for an

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NC: 2024:KHC:43755 WP No. 8035 of 2023

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additional relief of declaration that they are the owners of 'B' schedule property by adverse possession. This application was contested by the defendant No.1, who denied the claim of the plaintiffs that they were in adverse possession. They contended that the proposed amendment would change the cause of action and also nature and character of the suit.

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The Trial Court in terms of the impugned order, rejected the application on the ground that the plaintiffs though had an opportunity to seek for the said relief in the plaint or in the rejoinder, they did not do so. But filed the application subsequent thereto. It therefore, held that the plaintiffs were trying to fill up the loopholes in their case after the written statement was filed. It held that the amendment if allowed would change the nature of suit and also the cause of action and cause hardship to the defendants who had already disclosed their defence and filed their written statement.

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Being aggrieved by the said order, the plaintiffs are before this Court.

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Learned counsel for the plaintiffs contended that the application was filed to amend the plaint even before issues

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5 - NC: 2024:KHC:43755 WP No. 8035 of 2023

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were framed in the suit. He contends that the norm is to allow pre-trial amendments, unless such amendments take away an admission made in favour of the opposite party or attempts to renew a lost cause of action. He contends that the plaintiffs claimed that they are in unauthorized possession of 'B' schedule property and now they want to seek for enhanced relief for declaration of their title to 'B' schedule property by adverse possession. He contends that this does not in any way change the cause of action or the nature and character of the suit.

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Per contra, the learned counsel for the defendants contended that the plaintiffs have not admitted the title of the defendants either in the plaint or in the rejoinder and therefore, the plaintiffs cannot harp upon that they have perfected their title by adverse possession. He contends that admission of the title of the defendants is a condition precedent to pursue the relief of adverse possession. He therefore contends that the amendment is not really necessary to consider the suit on merits.

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NC: 2024:KHC:43755 WP No. 8035 of 2023

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I have considered the submissions of the learned

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counsel for the plaintiffs as well as the learned counsel for the defendants.

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The suit initially was filed for perpetual injunction in respect of 'A' and 'B' schedule properties. The plaintiffs did not claim title to 'B' schedule property, but claimed that they were in settled possession of 'B' schedule property. They also claimed that the defendant No.1 did not have any right, title and interest in respect of 'B' schedule property. However, when the defendants entered appearance and filed their written statement and sought counter claim for declaration of their title to 'B' schedule property and for perpetual injunction to restrain the plaintiffs from interfering with their possession and an alternative relief to recover the possession of 'B' schedule property, if it was found that the plaintiffs were in possession, the plaintiffs ought to have sought for the reliefs when they filed their reply to the written statement. Since issues in the suit are not yet framed and evidence of the parties is not yet adduced, the plaintiffs were entitled to file an application to amend the plaint to seek for higher reliefs namely, declaration of their title to the suit property by adverse possession. The

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NC: 2024:KHC:43755 WP No. 8035 of 2023

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plaintiffs could have filed a fresh suit for declaration of their title to 'B' schedule property, by adverse possession. Therefore, in order to avoid multiplicity of proceedings, the Trial Court must have allowed the application, notwithstanding the fact that it would result in changing the cause of action and nature of the suit. Therefore, the impugned order passed by the Trial Court merits reconsideration.

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Consequently, this writ petition is allowed . impugned order dated 27.01.2023 passed by the Trial Court is set aside. The application filed by the plaintiffs under VI Rule 17 read with Section 151 of Civil procedure code is allowed and the plaintiffs are permitted to amend the plaint.

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It is open for the defendants to file the written

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statement to the amended plaint.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 27

R.S. Shekharappa v. Onkarappa

Case brief

What is this about?

What did the court decide?

R.S. Shekharappa v. Onkarappa

Case brief

What is this about?

What did the court decide?

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