IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.40678/2017 (GM-CPC) BETWEEN:
SRI. G. V. DASAPPA, S/O LATE SRI VENKATAGOWDA, AGED ABOUT 62 YEARS, R/O JALADIGERE VILLAGE, YADIYOOR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572130.
... PETITIONER (BY SRI R. B. SADASIVAPPA, ADVOCATE) AND:
SMT. G. T. HOMBALAMMA, D/O LATE SRI THAMMAIAH, AGED ABOUT 60 YEARS, R/O JALADIGERE VILLAGE, YADIYOOR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572130.
…… ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.7.2017 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT KUNIGAL IN O.S.NO.10/2012 AND CONSEQUENTLY REJECT THE APPLICATION FILED BY THE RESPONDENT UNDER ORDER 6 RULE 17 OF CPC AT IA NO.17 IN O.S.NO.10/2012 VIDE ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.1 filed the present writ petition against the order dated 11.07.2017 made in O.S.No. 10/2012 on the file of the Senior Civil Judge and JMFC, Kunigal, allowing I.A.No.17 filed under Order VI Rule 17 of Code of Civil Procedure.
2. The respondent who is plaintiff before the Trial Court filed suit for partition and separate possession in respect of suit schedule properties morefully described in the schedule to the plaint, contending that, the plaintiff and defendants are members of the joint family and the plaintiff is entitled to 1/8th share in the suit schedule properties by metes and bounds. The same is disputed by the defendants by filing written statement contending that the very suit filed by the plaintiff for partition and separate possession is liable to be dismissed as not maintainable as there was a prior partition between the members of the family on 23.04.1984 as per panchayath parikath. When the matter was posted for cross-examination of D.W.1, the plaintiff filed the present application to insert paragraph 6(a) after paragraph 6 and to amend the prayer by deleting the word ‘1/8th share’ and inserting the word ‘1/2 share of father of plaintiff and defendant Nos.6 and 7’. The application was resisted by the first defendant by filing objections, reiterating the averments made in the written statement.
3. The Trial Court, considering the application and the objections, by the impugned order dated 11.07.2017, allowed the application. Hence the present writ petition is filed.
4. I have heard the learned counsel for the petitioner.
5. Sri Nandish, learned counsel for the petitioner vehemently contended that the very suit filed by the respondent herein is not maintainable and therefore, the question of granting any share to the plaintiff and the amendment to change the share would not arise at all. The Trial Court ought to have rejected the application. He further contended that in so far as item No.7, the name of the kathedar was already notified and the compensation was paid. As such, the plaintiff is not entitled to any share and therefore, sought to quash the impugned order by allowing the writ petition.
6. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed suit for partition and separate possession in respect of suit schedule item Nos.1 to 7, contending that they are the joint family properties of plaintiff and defendants and there was no earlier partition. It is the specific case of the defendant No.1 in the written statement that there was an earlier partition between the members of the family on 23.04.1984 and therefore, suit is not maintainable.
7. The question as to whether the suit schedule properties are the joint family properties of plaintiff and defendants and whether they are the members of the joint family and whether there was earlier partition as contended in the plaint and the written statement has to be adjudicated after full-fledged trial between the parties.
8. It is not in dispute that the amendment sought in the application is only for insertion of the fact that 4 guntas of land in Sy.No.13/P New No.13/1A measuring 7 acres 4 guntas was acquired for the purpose of widening of State Highway from Gubbi to Yediyur and compensation of `33,47,491/- was awarded. Further, the plaintiff has sought to amend the prayer to seek 1/2 share instead of 1/8th share. Mere allowing of the amendment would not amount to decreeing the suit.
Ultimately, it is for the plaintiff to establish his case for allotment of shares by adducing oral and documentary evidence. It is not the case of the petitioner/first defendant that the proposed amendment would change the nature of the suit and cause of action. When the amendment sought does not affect the case of the defendant, it can be allowed at any stage, unless, it pre- judices the other side.
9. The Trial Court, considering the entire material on record, recorded a finding that since the amount has been received by the defendants when the property was subject matter of the suit, when the suit was filed the property was not yet acquired by the authority. Having regard to the nature of the suit, I am of the opinion that the compensation amount has to be included in the present suit, otherwise the plaintiff is bound to lose her rights.
10. Accordingly, the Trial Court was of the opinion that the amendment sought is just and proper to adjudicate the dispute between the parties and the amendment will not change the nature of the suit nor will give any advantage to the plaintiff over the defendants. Accordingly the Trial Court allowed the application for amendment.
11. Mere amendment as stated supra will not take away the right of the defendant and plaintiff has to establish his rights based on the pleadings. In view of the same, the impugned order of the Trial Court is in accordance with law. Petitioner has not made out any ground to interfere with the impugned order passed by the Trial Court in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
kcm Sd/- JUDGE