IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.Nos. 47561-62/2014 (GM-CPC) BETWEEN:
M.S. GANAPATHI S/O LATE PATEL SHANTAVEERAPPA GOUDA, AGED ABOUT 64 YEARS AGRICULTURIST K. HUNASAVALLI MAJRE MADAVALLI KAEHALLI HOBLI HOSANAGARA TALUK SHIMOGA DISTRICT PIN CODE-597418 ... PETITIONER (BY SRI.A.S. MAHESH FOR SRI. C.N.RAJU, ADVOCATE) AND:
1. SHIVALINGAMMA AGED ABOUT 65 YEARS 2. NAGENDRAPPA AGED ABOUT 49 YEARS 3. OMKESHA AGED ABOUT 45 YEARS 4. PARAMESWARAPPA AGED ABOUT 36 YEARS 5. CHANNABASAPPA AGED ABOUT 34 YEARS WIFE AND CHILDREN OF LATE PATEL VEERABHADRAPPA D-1 IN O.S.146/1992.
RESPONDENTS 1 TO 5 ARE RESIDENTS OF K. HUNASAVALLI KAREHALLI HOBLI HOSANAGAR TALUK SHIMOGA DISTRICT PIN CODE-577418.
6. YESHODA W/O BASAVARAJ GOUDA AGED ABOUT 50 YEARS R/AT MUDYAN VILLAGE P.O. MARUTIPUR PIN CODE 577201.
7. SAVITRI W/O SWAMYGOUDA AGED ABOUT 45 YEARS R/O SAMPAKE VILLAGE P.O. GANASINKINI AVINHALLI HOBLI PIN CODE NO.577201.
8. M.S. JAYDEVAPPA AGED ABOUT 51 YEARS S/O SHANTHAVEERAPPA GOUDA 9. M.S. NANJUNDAPPA AGED ABOUT 48 YEARS S/O SHANTHAVEERAPPA GOUDA 10. PARVATAMMA W/O MALLANNA AGED ABOUT 70 YEARS 11. CHANNAMMA W/O CHANNABASAPPA AGED ABOUT 68 YEARS RESPONDENTS 8 TO 11 ARE RESIDING AT KESHERE VILLAGE KASHA HOBLI KESERE TALUK, HOSANAGAR 12. SHARANAMMA W/O MANJAPPA GOUDA AGED ABOUT 62 YEARS R/AT MAGODU VILLAGE HOSANAGARA TALUK.
DELETED V.O. DATED 05.12.2017 13. KUSUMAMMA W/O VEERABHADRAPPA AGED ABOUT 38 YEARS R/AT ARTEKOPA VILLAGE, HOSANAGARA TALUK.
14. MALLESHAPPA S/O NANJUNDAPPA GOUDA AGED ABOUT 36 YEARS 15. RUDRAPPA S/O NANJUNDAPPA AGED ABOUT 60 YEARS 16. PARAVATAMMA W/O RUDRAPPA GOUDA AGED ABOUT 60 YEARS R/AT HEJJEULU HOSANAGARA TALUK 17. ISWARAPPA S/O NANJUNDAPPA AGED ABOUT 32 YEARS RESPONDENTS 14, 15 & 17 ARE R/AT SATALA VILLAGE AVINHALLI HOBLI SAGARA TALUK SHIMOGA DISTRICT.
18. SAVITRAMMA W/O SRI. RAVISH AGED ABOUT 32 YEARS R/AT DUDTEKOPPA HOSANAGARA TALUK 19. REVANAMMA W/O SHANTAVEERAPPA GOUDA AGED ABOUT 60 YEARS R/AT KASTE VILLAGE BHIMGERE P.O.
20. LALITAMMA W/O BASAVARAJAPPA AGED ABOUT 54 YEARS 21. SUSHEELAMMA W/O JAYASHEELAPPA AGED ABOUT 46 YEARS RESPONDENTS 20 AND 21 ARE R/AT HUSAVALLI VILLAGE KEREHALLI HOBLI HOSANAGARA TALUK.
22. RATNAMMA W/O SHANTAVEERAPPA GOUDA AGED ABOUT 42 YEARS 23. MANJAPPA S/O GANGADHARAPPA GOUDA AGED ABOUT 41 YEARS RESPONDENTS 22 AND 23 ARE R/AT JIVAHALLI, MAVINAKATTE P.O.
24. PARVATAMMA W/O SANGAPPA GOUDA AGED ABOUT 38 YEARS R/AT CHANSETTY KOPPA ANANDAPUR HOBLI HOSANAGARA P.O.
25. SRI MURUGENDRAPPA S/O SMT. SHARANAMMA AGED ABOUT 58 YEARS 26. SRI SARVESWARA YANE SADASHIVA S/O SMT. SHARANAMMA AGED ABOUT 56 YEARS 27. SMT. GIRIJAMMA D/O SMT. SHARANAMMA AGED ABOUT 34 YEARS 28. SRI. ONKARAPPA S/O SMT. SHARANAMMA AGED ABOUT 52 YEARS 29. SMT. PUSHPAVATHI D/O SMT. SHARANAMMA AGED ABOUT 50 YEARS 30. SRI. ESWARAPPA S/O SMT. SHARNAMMA AGED ABOUT 48 YEARS RESPONDENTS 25 TO 30 ARE R/AT MAGODU VILLAGE NAGARA HOBLI HOSANAGARA TALUK SHIMOGA DISTRICT-577418.
... RESPONDENTS (BY SRI.RAJESH FOR SRI. SHIVARAM B.R., ADV., FOR R-2 & R-4; R-1, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 AND 30 ARE SERVED AND UNREPRESENTED; V/O DATED 05.12.2017 R-12 DELETED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 05.08.2014 PASSED ON I.AS 5 AND 6 BY THE CIVIL JUDGE, HOSANAGARA IN FDP 3/2009 VIDE ANNEXURE-J AND DIRECT THE COURT TO FINALIZE THE FINAL DECREE AS PER REPORT OF COMMISSIONER AND ORDER PASSED BY SAID COURT DATED 28.09.2013 VIDE ANNEXURE-C AS PER PR. DECREE DATED 06.11.2003 PASSED IN O.S.NO.146/1992 BY CIVIL JUDGE, HOSANAGARA VIDE ANNEXURE-A.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner herein had filed a suit O.S.No.146/1992 (Old No.18/1990) for partition and separate possession against respondents herein claiming 24/132nd share, which after contest, came to be decreed by judgment and decree dated 29.10.2003 granting 24/108th share. Being aggrieved by same, plaintiff filed an appeal in R.A.No.136/2003 before the Additional Civil Judge (Senior Division), Sagar, which came to be dismissed by judgment and decree dated 02.04.2009. The matter reached finality and as such, the plaintiff initiated final decree proceedings by filing FDP No.3/2009. In the said final decree proceedings, respondents-1 to 5 filed applications – I.A.Nos.5 and 6 under Order 6 Rule 17 CPC read with Sections 153 and 151 CPC for amendment of written statement filed by first defendant seeking incorporation of the extent of land namely, to insert 39 guntas and 4 acres 6 guntas instead of 2 acres 20 guntas in Sy.No.93 and to incorporate 1 acre 1 gunta khushki land in Sy.No.94 contending interalia that their father namely, first defendant in O.S.No.146/1992 was illiterate and during the pendency of the appeal, he expired and they could not look into the pleadings filed by their father and only when the Court Commissioner visited the said schedule land for survey, they came to know about the information received by the Commissioner wherein he intended to measure/survey land bearing Sy.Nos.93 & 94 which according to them could not have been the subject matter of partition since the trial Court itself while passing judgment and decree in O.S.No.146/1992 had opined that to an extent of 4 acres 26 guntas and 1 acre 1 guntas in Sy.No.94 was allotted to their father under the partition deed dated 10.03.1965 – Annexure-D1 and likewise, in respect of Sy.No.93, an extent of 4 acres 6 guntas together with 39 guntas had been allotted and not 2 acres 20 guntas as pleaded in item Nos.(1) and (5) of the written statement schedule and as such, said measurements is to be substituted by incorporating said measurements in the written statement filed by their father. These applications came to be considered and learned trial Judge by impugned order, allowed the same which had been challenged by the plaintiff.
2. I have heard the arguments of Sri A.S.Mahesh, learned Advocate appearing on behalf of Sri C.N.Raju for petitioner and Sri Rajesh, learned Advocate appearing on behalf of Sri Shivaram B.R. for respondents-2 and 4. Perused the records.
3. A perusal of judgment and decree passed by the trial Court in O.S.No.146/1992 would clearly disclose that suit as prayed for by the plaintiff came to be decreed except to the extent excluding item No.2 of plaint ‘A’ schedule and properties described in the schedule to the written statement filed by the first defendant. Copy of the written statement which came to be filed by first defendant has been made available by the learned Advocate appearing for the parties. Perusal of the said written statement would also disclose that defence put up by the deceased defendant – Sri Patel Veerabhadrappa was to the effect that there was a partition before 10.03.1965 and in the said partition, first defendant – Sri Patel Veerabhadrappa had allotted item No.2 of plaint ‘A’ schedule property as well as the properties described in the schedule to the partition deed dated 10.03.1965 – Ex.D-1. However, while indicating description of the property in the schedule to the written statement at item Nos.1 and 5, the properties which have been described as Sy.Nos.94 and 95 respectively, the extent has been indicated as 4 acres 26 guntas and 2 acres 20 guntas and according to the legal representatives of the deceased first defendant, error or mistake had crept in at the time of filing of written statement. Said plea put forward by the legal representatives of first defendant has been accepted by trial Court and rightly so, by allowing the applications for amendment. Said order passed by the trial Court deserves to be confirmed, for the simple reason that there is no dispute to the fact that under Ex.D-1, the properties as described thereunder which had fallen to the shares of the parties which came to be accepted by all and same had reached finality. In fact, palupatti dated 10.03.1965 –Ex.D1 has been acted upon by all the parties including plaintiff. It is because of this precise reason, learned trial Judge accepted the same and excluded all those properties as reflected in Ex.D-1 from the purview of partition. To put it differently, properties described in Ex.D-1 which was claimed by deceased first defendant has been excluded for being decreed. Ex.D-1 namely, Palupatti dated 10.03.1965 which has also been produced is examined and perused by this Court and same would clearly indicate that under said partition, in Sy.No.94 the deceased defendant was allotted 4 acres 26 guntas and 1 acre 1 gunta i.e., in all, 5 acres 27 guntas . Likewise, in Sy.No.93, he was allotted 39 guntas and 4 acres 6 guntas i.e., totally 5 acres 5 guntas. However, while describing the suit property in the schedule to the written statement filed by him, the extent has been reduced or in other words, it has been indicated as 4 acres 26 guntas in Sy.No.94 and 2 acres 24 guntas in Sy.No.93. Hence, this mistake which had occurred has sought to be rectified in final decree proceedings by way of amendment of written statement, though belatedly filed, it has been rightly accepted by the trial Court and non-allowing of that application would have resulted in injustice being perpetrated inasmuch as, plaintiff could not have sought for allotment of share higher than to what he was entitled to or in other words, he would have been allotted properties which had been refused/denied by Courts below.
4. In that view of the matter, this Court is of the view that there is no error committed by the learned trial Judge in allowing the applications for amendment. Accordingly, writ petitions stand dismissed and order dated 05.08.2014 passed on I.A.Nos.5 and 6 by Additional Civil Judge, Hosanagara is hereby confirmed. No order as to costs.
SD/- JUDGE *sp