IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.8128/2019(GM-CPC) BETWEEN:
MUKUNDAPPA S/O. LATE THIMMARAYAPPA, AGED ABOUT 76 YEARS, R/O. THINDLU VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT-560 067, ... PETITIONER (BY SRI VIRUPAKSHAIAH P. H., ADVOCATE) AND:
1. T. S. NARAYANASWAMY, S/O. LATE SIMPAIAH, AGED ABOUT 50 YEARS, R/O. THINDLU VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT-560 067.
2. T. M. GOPALAPPA S/O. MUKUNDAPPA, AGED ABOUT 60 YEARS, 3. T. M. RAMACHANDRA S/O. MUKUNDAPPA, AGED ABOUT 47 YEARS, 4. T. M. MUNIRAJU S/O. MUKUNDAPPA, AGED ABOUT 44 YEARS, RESPONDENT No.2 TO 4 ARE R/O THINDLU VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT-560 067.
... RESPONDENTS …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEXURE-J DATED 11.2.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, HOSKOTE IN O.S.NO.129/2017.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.1 filed the above writ petition against the Order dated 11.02.2019 made in O.S.No. 129/2017 on the file of the Addl. Civil Judge and JMFC, Hosakote, allowing the application for amendment filed by the plaintiff.
2. The first respondent who is plaintiff before the Trial Court filed suit seeking permanent injunction against the defendants in respect of the suit schedule property bearing kaneshumari ginger No.3, property No.11/1, measuring East to West 30 feet and North to South 65 feet, situated at Thindlu village, Jadigenahalli Hobli, Hosakote Taluk, Bengaluru Rural District, morefully described in the schedule to the plaint, contending that he is the owner of the suit schedule property under panchayath partition dated 23.01.1998 and defendants have no manner of right, title and interest to interfere with the property of the plaintiff.
3. The defendants filed written statement and denied the plaint averments and contended that the suit schedule property is the self acquired property of Thimmarayappa who is the father first defendant and grand father of defendant Nos.2 to 4. After the death of Thimmarayappa, the defendants are in peaceful possession and enjoyment of the suit schedule property. The plaintiff colluded with the revenue officials, without valid legal right and title and by violating the rules and regulations of Gramapanchayath, has changed the katha and on the basis of the said katha, is trying to put up construction over the suit schedule property, etc., and therefore, sought for dismissal of the suit.
4. When the matter was posted for framing of issues, at that stage, plaintiff filed an application under Order VI Rule 17 of Code of Civil Procedure seeking amendment of the plaint by adding para 3(a) after para 3 to the effect that, ‘previously the suit schedule property was coming within the limits of Vagata Grama Panchayath and the same was numbered as property No.17/1 and entered in the Vagata Grama Panchayath records in the name of Mantapada Simpaiah who is the father of the plaintiff and he acquired the same through his ancestors. The Kaji Hosahalli Grama Panchayath was newly established in the year 1994-95 and records pertaining to the suit schedule property bearing kaneshumari No.17/1 transferred to the Kaji Hosahalli Grama Panchayath and re-numbered as 11/1 in respect of the suit schedule property and accordingly, the name of the plaintiff’s father Sri Mantapada Simpaiah has been entered in the Khaji Hosahalli Grama Panchayath records in respect of the suit schedule property and assessed the property for tax and he and his family members are in continuous possession and enjoyment over the property’. It was also sought to add ‘old property No.17/1’ after the words ‘property No.11/1’ in the second line of the schedule.
5. The said application came to be resisted by the defendants by filing objections and contended that the application is filed only to over come the order dated 26.04.2017 passed by the Executive Officer, Taluk Panchayath, Hosakote, Bengaluru Rural District, and the very application for amendment is not maintainable and the application for amendment will change the nature of the suit and therefore, sought for dismissal of the application.
6. The Trial Court, considering the application and objections, by the impugned order allowed the application. Hence the present writ petition is filed.
7. I have heard the learned counsel for the petitioner.
8. Sri P.H.Virupakshaiah, learned counsel for the petitioner contended that the impugned order passed by the Trial Court allowing the application for amendment to incorporate new survey number which is not in existence and to over come the order dated 26.04.2017 passed by the Executive Officer, Taluk Panchayath, Hosakote, Bengaluru Rural District, is not sustainable. The suit is for permanent injunction and the very title is disputed by the defendants and therefore, he sought to allow the writ petition.
9. Having heard the learned counsel for the petitioner, it is the specific case of the petitioner that he is the owner of the suit schedule property bearing kaneshumari ginger No.3, property No.11/1, measuring East to West 30 feet and North to South 65 feet, situated at Thindlu village, Jadigenahalli Hobli, Hosakote Taluk, Bengaluru Rural District. By way of amendment, the plaintiff wants to insert ‘old property No.17/1’ after the words ‘property No.11/1’ in the second line of the schedule to the plaint, contending that, earlier the property was bearing No.17/1. Subsequently, new No.11/1 was assigned due to change of grama panchayath. Ultimately, it is for the plaintiff to prove as to how the new number was assigned. Mere allowing of the application will not prejudice the case of the defendant. The contention for the learned counsel for the petitioner that the amendment is sought only to over come the order passed by the Executive Officer cannot be accepted at this stage. It is for the plaintiff to prove his case.
10. The Trial Court, considering the application and objections, has recorded a finding that, the plaintiff has filed suit for permanent injunction. Now plaintiff wants to insert old number of suit schedule property and its details in the plaint. On considering the stage of the suit and nature of amendment, the proposed amendment is necessary for determination of real question in controversy between the parties, and accordingly, allowed the application.
11. The impugned order passed by the Trial Court is just and proper. The petitioner has not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India.
12. However, while allowing the application, the Trial Court, ought to have permitted the defendants to file additional written statement, if any, to the proposed amendment. The same has not been done. In view of the above, the writ petition is disposed of. The defendants are permitted to file written statement to the amended plaint and take all contentions, in accordance with law and the Trial Court is directed to proceed strictly in accordance with law.
13. It is made clear that any of observations made by the Trial Court and this Court while considering the application for amendment shall not come in the way of either of parties to establish their case independently, in accordance with law.
Sd/- JUDGE kcm