IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.39871-39872/2018(GM-CPC) BETWEEN:
1. SMT. DEVAMMA @ GAYATHRI W/O SRI NINGEGOWDA, AGED ABOUT 60 YEARS, D/O LATE RAJEGOWDA R/AT GOPALAPURA VILLAGE, JAYAPURA HOBLI, MYSORE TALUK.
2. SMT. DHANALAXMI @ LAKSHMAMMA, W/O LATE NAGARAJ, D/O LATE RAJEGOWDA, AGED ABOUT 50 YEARS, R/AT NO.41/1, BEHIND CHAITRA MINI HOSPITAL, K.R.S. ROAD, METAGALLI, MYSORE.
... PETITIONERS (BY SRI GIRISHA N. R., ADVOCATE) AND:
1. SRI CHIKKANNA, S/O LATE RAJEGOWDA AGED ABOUT 65 YEARS, 2. R. SANJEEVA, S/O LATE RAJEGOWDA, AGED ABOUT 60 YEARS, 3. SRI R. RAMANNA S/O LATE RAJEGOWDA, AGED ABOUT 55 YEARS, 4. SRI R. SHIVANNA, S/O LATE RAJEGOWDA AGED ABOUT 49 YEARS, ALL ARE RESIDING AT MULLUR VILLAGE, GOPALAPURA POST, JAYAPURA HOBLI, MYSORE TALUK.
5. SRI SIDDLINGU S/O SIDDAPPA, AGED ABOUT 55 YEARS, 6. SRI M. S. KISHORE, S/O SIDDAPPA, AGED ABOUT 30 YEARS, 7. SMT. KAVITHA D/O SIDDALINGU AGED ABOUT 36 YEARS, 8. SMT. REVATHI, D/O SIDDALINGU, AGED ABOUT 34 YEARS, 9. SMT. SWETHA, D/O SIDDALINGU, AGED ABOUT 31 YEARS, 10. SMT. KEERTHI, D/O SIDDALINGU, AGED ABOUT 30 YEARS, ALL 5 TO 10 ARE RESIDING AT NO.2, 3RD CROSS, NANJAPPA BADAVANE, ADAGODI, BANGALORE-30.
11. SRI B. UDAY, S/O SRI BORAIAH, AGED ABOUT 50 YEARS, NO.452, 7TH CROSS, 2ND MAIN, SANJEEVINI CIRCLE, LOKANAYAKA NAGARA, METAGALLI POST MYSURU-570004.
12. SRI HARISHGOWDA, S/O SRI KRISHNAPPA, AGED ABOUT 45 YEARS, CH-35, KANTHARAJURS ROAD, NEAR SARASWATHI THEATRE K G KOPPAL, CHAMARAJA MOHALLA MYSURU-570001.
... RESPONDENTS **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXURE-A DATED 17.07.2018 PASSED ON I.A.NO.15 IN O.S.NO. 736/2012 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM AT MYSURU AND ALLOW THE I.A.NO.15.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiffs filed the present writ petitions against the order dated 17.7.2018 on I.A. No.15 in O.S. No.736/2012 on the file of the II Additional Senior Civil Judge & CJM, Mysuru dismissing the application filed by the 2nd plaintiff seeking amendment of the plaint under Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure.
2. The plaintiff Nos.1 and 2 filed the suit for partition and separate possession in respect of the suit schedule item Nos.1 to 3, morefully described in the schedule to the plaint contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and the ‘B’ schedule property is ‘Sthreedhana property’ of deceased Devamma @ Boramma. The said Devamma died intestate leaving behind her the ‘B’ schedule ‘Sthreedhana property’ and the plaintiffs and the defendants are her legal heirs. After the death of their mother, the plaintiffs and defendants have been in joint cultivation and possession of ‘B’ schedule property. Likewise, ‘A’ schedule properties are also under joint cultivation and possession of the plaintiffs and the defendants etc.,. Therefore sought for the relief of partition and separate possession. The defendants filed the written statement and admitted that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and they are the joint family members.
3. When the matter was posted for cross-examination of DW.1, at that stage, only the 2nd plaintiff filed the application for amendment of the plaint to include the following paragraph as paragraph 2(a) after paragraph-2:
“Originally the plaint ’B’ schedule property i.e., Sy.No.21 comprises of 5 acres 33 guntas during the life time of Smt. Devamma @ Boramma w/o Late Rajegowda as per the registered partition dated 28.1.2000 has effected the partition with regard to the plaint ‘B’ schedule property to an extent of 3 acres 33 guntas and there remained 2 acres, which was retained by Smt. Devamma @ Boramma which was the Sthreedhana property of deceased Smt. Devamma @ Boramma. After the demise of Smt. Devamma @ Boramma, since remaining 2 acres of plaint ‘B’ schedule property is the ‘Sthreedhana property’ of Smt. Devamma @ Boramma except the plaintiffs and defendant no.6, nobody else is having any right, title or interest much less possession over the plaint ‘B’ schedule property.”
4. The said application was resisted by the defendants by filing objections. The trial Court considering the application and the objections by the impugned order dated 17.7.2018 dismissed the application. Hence the present writ petitions are filed.
5. I have heard the learned counsel for the petitioners.
6. Sri N.R. Girisha, learned counsel for the petitioners – plaintiffs contended that the impugned order passed by the trial Court rejecting the application filed by the 2nd plaintiff for amendment of the plaint, is erroneous and contrary to the material on record. He would further contend that though in the plaint it is specifically stated that ‘B’ schedule property was ‘Sthreedhana property’ of Devamma @ Boramma, since there was no clarity, the plaintiff No.2 filed an application to amend the plaint and to add paragraph No.2(a) after paragraph No.2, wherein they want to give the particulars of ‘B’ schedule property. The trial Court ought to have allowed the application. Rejection of the application for amendment filed by the 2nd plaintiff is contrary to the pleadings and the same cannot be sustained and therefore he sought to allow the writ petitions.
7. Having heard the learned counsel for the petitioners, it is the specific case of the plaintiffs in the original plaint that the plaintiffs and the defendants are members of the joint family and suit schedule properties 1 to 3 are the joint family properties and they are entitled to share. In fact in paragraph-3 of the plaint, it is specifically contended that Sy.No.21/1 measuring 2 acres, morefully described in the ‘B’ schedule is the ‘Sthreedhana property’ of Smt. Devamma @ Boramma and she died intestate leaving behind the said ‘Sthreedhana property’. The plaintiffs and defendants are her legal heirs and after her death, the plaintiffs and the defendants have been in joint cultivation and possession of the ‘B’ schedule property.
8. By way of amendment, the plaintiffs are intending to plead that as per the registered partition deed dated 28.1.2000, their mother – Devamma @ Boramma retained 2 acres of land (suit ‘B’ schedule property), which was her Sthreedhana property and after the death of their mother, the ‘B’ schedule property became the Sthreedhana property of the plaintiffs and the defendant NO.6 and none else is having any right, title or interest, muchless possession over the plaint ‘B’ schedule property. The said application came to be rejected by the trial Court.
9. Though in the application it is stated as ‘B’ schedule, but on careful perusal of the plaint produced along with the present writ petition, it clearly depicts that there is no ‘B’ schedule reflecting and only item Nos.1 to 3 are reflecting in the plaint schedule. In the plaint, once plaintiff admitted that both the plaintiffs and the defendants are the legal heirs of Devamma and they succeed to the estate, now by way of amendment, they cannot restrict the prayer only to the plaintiffs and the defendant NO.6 depriving the other parties to the suit. That is not the intention of Order 6 Rule 17 of the Code of Civil Procedure.
10. The trial Court considering the entire material on record recorded a finding that in the pleadings as well as in their examination-in-chief, the plaintiffs have categorically admitted that the plaintiffs and all the defendants are in joint possession and enjoyment of the suit ‘B’ schedule property. But by filing the application for amendment, the plaintiffs are intending to plead new set of case that the suit ‘B’ schedule property is their ‘Sthreedhana property’ and except plaintiffs and defendant No.6, none else are in possession and enjoyment of the said property. If the plaintiffs are permitted to carry out the amendment sought, it is nothing but permitting the plaintiffs to take away some of their admissions both in the pleadings as well as in the examination-chief, which is not permissible in the eye of law.
11. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. Further, though the 2nd plaintiff alone filed an application for amendment, now the writ petitions are filed by both the plaintiffs. On that ground also the plaintiffs are not entitled to any relief before this Court. The plaintiffs have not made out any ground to interfere with the impugned order in exercise of the power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
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