Anjinappa vs Doddyellappa and Others

Budihal R.B., J.—1. Brief facts of the case leading to filing of the suit in O.S. No. 654/2012 before the trial Court is that the plaintiff filed the said suit for the relief of declaration to declare that he is the sole and absolute owner and enjoyment of the suit schedule property and to declare that the alleged sale deed executed by Akkayyamma in the name of H. Munireddy dated 15.1.1959 and alleged sale deed executed by the H. Munireddy in the name of one Chikkanna Dated 8.9.1962 and the alleged partition deed got registered between defendant Nos. 1 to 3 dated 26.6.1999 and the alleged partition deed got registered in between defendant Nos. 1 and 4 to 8 dated 20.8.2011 are concocted and fraudulent documents and not binding on him. He has also sought for consequential relief of permanent injunction restraining defendants or any person or persons claiming under or through them from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property. The petitioner-plaintiff also filed an application under Order 6 Rule 17 of CPC seeking amendment of the pleadings as well as relief column and the said application was opposed by the respondents-defendants by filing objection statement. By the proposed amendment, the petitioner-plaintiff sought to correct the extent of the suit schedule property in the body of the plaint as 4 acres 15 guntas in stead of 2 acres 7 1/2 guntas. In addition to that, after the prayer column, alternatively he wanted to insert the prayer to grant decree for equitable partition of the suit schedule property and separate possession of 1/2 share therein to the plaint by metes and bounds and another relief to be incorporated as 4 acres 15 guntas instead of 2 acres 7 1/2 guntas in the second line of the description of the suit property under the schedule to the plaint and to substitute the Sarkari Kere Angala in the place of western boundary shown in the schedule to the plaint. The trial Court after considering the merit of the application rejected the same. Being aggrieved by the same, the petitioner is before this Court.

Heard learned counsel appearing for the petitioner-plaintiff and learned counsel for the respondents-defendants.

Learned counsel for the petitioner-plaintiff made submission that the suit schedule property was under the ownership of the parents of the plaintiff and in the sale deed executed in the year 1959 by mother of the plaintiff, father of the plaintiff was not made as the party to the said sale deed. His father died intestate and he is the only son to his parents. It is no doubt true that the plaintiff filed the suit seeking absolute ownership over the suit schedule property and by way of alternative relief, the plaintiff also sought for partition and separate possession of his half share in the suit schedule property. It is also the contention of the learned counsel for the petitioner that when plaintiffs father''s interest was not at all transferred virtually under the said sale deed, he can claim so far as share of his father, being legal representative of his father. Hence, for the said claim, the plaintiff cannot bring another suit which leads to multiplicity of the proceedings. If the amendment application is allowed, it will not prejudice the other side as evidence is not yet commenced. The defendant was permitted twice to file his additional written statement and to cross examine the plaintiff. So far as the amended pleadings are concerned, if the amendment is not allowed it leads to denial of necessary reliefs to the plaintiff in the very suit. The trial Court without considering all these aspects has wrongly rejected the application.

Per contra, learned counsel for the respondents defendants submitted that the very suit is not maintainable as the main relief of declaration in respect of the sale deed of 1959 is barred by the law of limitation. Hence, the question of filing amendment application at this stage does not arise at all. It is the further contention of the learned counsel for the respondents-defendants that a suit for declaration is different from the suit for relief of partition and they are not related to each other and it changes the very nature of the original suit. This aspect of the matter has been rightly considered by the trial Court and it has rightly rejected I.A. No. 13. Though the plaintiff filed the suit two years earlier to filing of the amendment application, he was not diligent in filing such application at the earliest point of time or to include his pleadings in the original plaint. On this ground, the learned counsel for the defendants opposed the application and submitted that the trial Court is justified in rejecting the application.

I have perused the grounds urged in the writ petition, averments made in the amendment application LA. No. 13 filed by the plaintiff, objection statement filed by the respondents-defendants to the said application and also the impugned order passed by the trial Court rejecting the application.

So far as the amendment application seeking transfer of half share of father of the plaintiff is concerned, no doubt true, the original suit is for declaration that the plaintiff is the absolute owner of the entire suit schedule property. But by way of the alternative relief, the plaintiff filed an application seeking share of his father being the only legal representative and on that basis he has filed an application for amendment. In para Nos. 4 to 6 of the amendment application, it is specifically pleaded by the petitioner-plaintiff that the suit schedule property was alienated by the mother, though name of the father was mentioned, his father had not executed the said sale deed. Therefore, his father''s undivided half share is not at all virtually transferred in favour of the purchaser under the registered sale deed. Hence, he contended that being only son to his parents, he is entitled for the share of his father. Thus, by way of alternative relief in the said suit, as per Order VI Rule 17 of CPC when such pleading is made by the plaintiff in a suit for declaration and if the Court comes to the conclusion that he is entitled to the said share, the Court itself can mould the relief to avoid multiplicity of proceedings instead of directing the parties to file another suit in that regard. In that view of the matter, the learned counsel for the petitioner is justified in making the statement that alternatively the petitioner can as well claim the relief of partition and separate possession of his half share in the suit schedule property. This aspect of the matter is not properly appreciated by the trial Court and the trial Court has wrongly rejected application.

So far as the delay aspect is concerned, the respondents-defendants have taken up the contention that the very suit is barred by the law of limitation, the said issue has been raised. Admittedly, even according to the respondents herein the evidence in the suit is not yet commenced. The application was filed before the commencement of evidence. Looking to this aspect of the matter, I am of the opinion that the trial Court is not correct in its view in rejecting the application holding that the amendment is going to change the very nature of the suit. Therefore, the order passed by the trial Court is not sustainable in law. The petitioner has made out a case to allow the application.

Accordingly, the writ petition is allowed. The order passed by the trial Court on the amendment application I.A. No. 13 is set aside and the petitioner plaintiff is permitted to carry out the amendment as prayed for in the said application.