IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.29137 OF 2018 (GM-CPC) Between:
1. Ajjamada Thimmaiah, Aged about 74 years, 2. Ajjamada Chengappa, Aged abou 62 year, 3. Ajjamada Mandanna, Aged about 56 years, All of them are sons of Late Poovaiah.
4. Smt. Ajjamada Yeshoda, D/o. late Poovaiah, Aged 55 years.
All of them are the permanent Residents of Beeruga Village, Kurchi Post, Srimangala Nad, South Kodagu.
(By Sri S.R. Sreeprasad, Adv.) And:
1. Sri M.M. Chandy, S/o. late M.C. Mathew, Aged about 74 years, … Petitioners 2. Smt. Mary Mathew, W/o. late M.C. Mahew, Aged about 94 years, Both of them are at: No.47/1, Ashram Road, Jayalakshmipuram, Mysore – 570 012.
3. M/s. Anaparai Estate Ltd., Represented by Sri Chandi George, S/o. late George, Aged about 72 years, Chamundi Buildings, Metagalli Post, Mysore – 570 016.
... Respondents (By Sri G. Balakrishna Shastry, Adv. for R3 R-1 and R-3 are served but unrepresented) *** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to allow the above writ petition and to set aside the order dated 30.06.2018 passed by the Court below on I.A.No.XVI in O.S.No.45/2009 on the file of Civil Judge (Sr.Dv.) at Virajpet (Annexure-A).
This Writ Petition coming on for Orders, this day, the court made the following:
ORDER Plaintiffs No.1 to 4 filed the present writ petition against the order dated 30.06.2018 passed on I.A. No.XVI made in O.S.No.45/2009 on the file of the Civil Judge (Sr. Dn.) at Virjapet rejecting the application filed by plaintiff No.2 under Order VI Rule 17 of Code of Civil Procedure for amendment of the plaint.
2. The plaintiffs filed suit for permanent injunction in respect of the suit schedule property contending that they are the owners in possession of the same. The defendants No.1 and 2 filed written statement denying the plaint averments and contended that they are the owners in possession of the property in question. Defendant No.3 present respondent No.3 filed written statement denying the plaint averments and subsequently contended at para 7 of the written statement that it is true that under a registered sale deed dated 23.06.1969, said Poovaiah- Father of the plaintiffs, his two brothers Belliappa and Joyappa have sold an area of 70.00 acres out of 202.10 acres in Sy.No.21/1 and 0.12 acres in Sy.No.62 of Beeruga village to defendants No.1 and 2 and they have conveyed absolute title and peaceful possession to the said buyers for valuable consideration received. They had even made a sale agreement on 06.11.1967. Same is established by documents before this Court. Defendants are in possession and enjoyment of the suit schedule property as on the date of filing of the suit and sought for dismissal of the suit.
3. During the pendency of the proceedings, the plaintiffs filed I.A.No.II for temporary injunction. The trial Court considering the application and objections, rejected the application in terms of the order dated 6.02.2016. Against the said order, the plaintiffs filed MFA No.3540/2016 before this Court, same was dismissed on 08.06.2017. Aggrieved by the said order, the plaintiffs filed Special Leave Petition No.10803/2018 before the Hon’ble Supreme Court, which also came to be dismissed on 20.04.2018. Thereafter, the plaintiffs filed the present application under Order VI Rule 17 of Code of Civil Procedure to amend para 15 by adding para 15A to the effect that after application for temporary injunction came to be rejected by the trial Court, confirmed by this Court in MFA No.3540/2016 and also confirmed by the Hon’ble Supreme Court in S.L.P. No.10803/2018, the defendants with the help of goondas and rowdy elements unlawfully and illegally trespassed into the suit schedule properties and taken forcible possession of the suit schedule property on 06.05.2018. Thereafter sought for amendment of prayer coloum and amendment of schedule. The said application was resisted by the defendants by filing objections and contended that the application filed is only after thought and it is not maintainable. It was the specific case of the defendants that by virtue of registered sale deed executed in the year 1967, they are in possession of the suit schedule property and sought for dismissal of the application. The trial Court considering the application and objections by the impugned order dated 30.06.2018 dismissed the application. Hence, the present writ petition is filed.
4. I have heard the learned counsel appearing for the parties to lis.
5. Sri S.R. Sreeprasad, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application is erroneous and contrary to material on record. He further contended that it is the specific case of the plaintiffs that after dismissal of the Special Leave Petition on 20.04.2018, the defendants with the help of goondas dispossessed the plaintiffs on 6.05.2018 from the suit schedule property. Hence, the present application is filed. The application for amendment is only a consequential relief for possession on the ground that the plaintiffs were dispossessed during the pendency of the suit. Therefore, the trial Court ought to have allowed the application. Hence, sought to allow the present writ petition.
6. Per contra, Sri Balakrishna Shastry, learned counsel appearing for respondent No.3 sought to justify the impugned order of the trial Court and contended that, in para 7 of the written statement of the defendant No.3 in categorical terms he has stated that he is the owner in possession and enjoyment of the property in question under the registered sale deed dated 23.06.1969. The very application filed by the plaintiffs is not maintainable. Hence, the question of possession and dispossession does not arise. The trial Court by the order dated 06.02.2016 considering the entire material on record has rightly rejected the application. Same was confirmed by this Court in MFA No.3540/2016 and was also confirmed by the Hon’ble Supreme Court in S.L.P. No.10803/2018 on 20.04.2018. Therefore now the plaintiffs have come up with new theory of dispossession from suit property. He would further contend that the plaintiff examined himself as PW-1. In his cross-examination he admitted that when his father alienated the property might have given possession, but still the plaintiff is not in possession which clearly indicates that the plaintiff is not at all in possession as on the date of the suit, then the question of dispossession would not arise. He further contended that the suit is filed in the year 2009 and the defendant No.3 filed written statement on 30.11.2009, the application for amendment of plaint is filed filed on 19.06.2018. There is an inordinate delay in filing the application. Therefore, the application filed is barred by Limitation Act. Therefore, sought to dismiss the present writ petition.
7. Having heard learned counsel appearing for the parties, the material on record clearly depicts that it is the specific case of the plaintiffs that the plaintiffs are the owners of the property in question. Therefore, filed suit for declaration and permanent injunction. The learned trial Judge rejected the application filed for temporary injunction holding that the plaintiffs prima-facie not proved the possession. Same was confirmed by this Court on 08.06.2017 in MFA No.3540/2016 and also confirmed by the Hon’ble Supreme Court on 20.04.2018 in S.L.P. No.10803/2018. The application for amendment was filed on 19.06.2018 alleging that the plaintiffs have been dispossessed by the defendants on 06.05.2018. It is the specific case of the defendants that from the inception of filing of the suit, the defendants are in possession of the suit property by virtue of registered sale deed executed in the year 1967. Therefore the suit filed by the plaintiffs is not maintainable.
8. It is also not in dispute that the plaintiff himself examined as P.W.-1. In the cross- examination, he admitted that while alienating his father might have given the possession under document Ex.P.62. It is admitted that while alienating, his father and others might have given possession but he has stated that still he is in continued possession.
9. In view of the conflict statement made by the plaintiffs, defendants and the contentions raised by learned counsel for defendants that the very application filed for amendment of plaint is barred by Limitation Act and it is the mixed question of fact and law which has to be adjudicated along with main suit. All the contentions urged by both the parties have to be considered by the learned trial Judge along with the main. In view of the peculiar facts and circumstances, learned trial Judge is to consider the application for amendment along with the main, while disposing the main suit on merits after adjudication of both oral and documentary evidence on record. All the contentions of the parties have to be considered at the time of final disposal along with application for amendment.
10. In view of the aforesaid reason, the writ petition is disposed of. The order of the trial Court is kept in abeyance. The trial Court is directed to consider the application filed by plaintiff No.2 dated 19.06.2018 under Order VI Rule 17 of Code of Civil Procedure for amendment of pleading and the prayer for possession along with the main.
Ordered accordingly.
Sd/- JUDGE PN/-