HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.414 of 2022
Between:
Vurlagadda Narayana (died) and five others.
... Petitioners.
Versus
W.Ramaraju, S/o Venkata Raju, aged about
70 years, Occ: Cultivation, R/o Kothapeta,
Punganur Town, Chittoor District and four
others.
... Respondents.
Counsel for the petitioner : Sri S.V.Muni Reddy
Counsel for respondent : ---
ORDER
Appellants in the appeal filed the above revision against the order dated 08.02.2022 in I.A.No.117 of 2021 in A.S.No.31 of 2017 on the file of Senior Civil Judge, Punganur.
2. Appellants are plaintiffs and respondents are defendants in the suit.
3. Suit O.S.No.280 of 2007 on the file of Principal Junior Civil Judge, Punganur by the plaintiff seeking perpetual injunction.
2
4. In the plaint, it was contended interalia that deceased 1st plaintiff by virtue of his purchase from the original owners has been in possession of the plaint schedule properties; that in recognition of long standing possession, name of deceased 1st plaintiff was mutated in village revenue records; that pattadar pass book and title deed were also issued; that deceased 1st plaintiff mortgaged the suit schedule properties in Bheemaganipalle PACS on 02.02.1998 and the same is subsisting; that defendants are kith and kin belonged to the same family, being strangers without any semblance of right and title over the schedule properties, are falsely claiming the schedule properties; that standing crop of „byroddlu‟ is in existence in an extent of Ac.0.25 cents on the extreme western side of suit properties; that defendants tried to trespass into the schedule properties and hence, filed the suit seeking perpetual injunction.
5. Pending the suit, sole plaintiff died and plaintiffs 2 to 6 were added as per order dated 28.01.2008 in I.A.No.1588 of 2007.
3
6. 5th Defendant filed written statement and contended interalia that boundaries mentioned in suit schedule are not correct; that deceased 1st plaintiff did not disclose from whom he purchased the property; that in pattadar pass book and title deed filed plaintiff, it was shown as "Pithrarjitham" and the same as corrected as "Konugolu", that itself shows that deceased 1st plaintiff tampered the revenue records; neither the deceased 1st plaintiff nor other plaintiffs are in possession of properties; that as per the revenue records, patta for the suit survey number stands in the name of Matam Virupakshaiah, S/o Siddappa; that one Virupanaiah is brother of said Virupakshaiah; that said Virupakshaiah is no more; that said Virupanaiah has a daughter by name Chennamma and they are rightful owners of suit schedule survey numbers; that Virupanaiah, his son Nanjundappa and Chennamma and her son Sivakumar jointly sold an extent of Ac.0.55 cents in suit survey number to the elder brother of 5th defendant by name Adinarayana Raju for proper consideration under a registered sale deed dated 29.04.1993 and delivered possession and he was in possession and enjoyment of the same; that during his lifetime, Adinarayana 4 Raju hypothecated property to State Bank of Mysore and availed loan; that revenue records clearly show the right and possession of Adinarayana Raju; that said Adinarayana Raju died without marriage; that 1st defendant, father of said Adinarayana Raju succeeded to the properties; that 1st defendant gifted the property to 5th defendant under a registered gift settlement deed dated 23.03.2007 and delivered possession; that deceased 1st plaintiff suppressed the facts and filed the suit for perpetual injunction; that suit for mere injunction is not maintainable without pleading right and eventually, prayed the Court to dismiss the suit.
7. During the trial, 3rd plaintiff examined himself as P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-16 were marked. 5th Defendant examined himself as D.W.1 and got examined D.Ws.2 and 3. Exs.B-1 to B-7 were marked.
8. Trial Court by judgment and decree dated 20.11.2017 dismissed the suit. Trial Court came to conclusion that suit for injunction against the co-owner is not maintainable.
9. Aggrieved by the said judgment and decree, plaintiffs filed appeal A.S.No.31 of 2017 on the file of Senior Civil 5 Judge, Punganur. Pending the appeal, I.A.No.117 of 2021 was filed under Order VI Rule 17 of CPC to amend the suit claiming the relief of declaration of right and title over the schedule properties.
10. In the affidavit filed in support of the petition, it was contended that interalia that defendants falsely claimed property basing on revenue entries after filing of suit and denied the right; that deceased 1st plaintiff purchased the property in the year 1990; that defendants played fraud in getting mutation of their names in revenue records; that proceedings of revenue officials qua updating names of defendants were stayed in W.P.No.25536 of 2017 and thus, prayed the Court to permit the plaintiffs to amend the suit for relief of declaration.
11. Respondents reported no counter.
12. By order dated 08.02.2022, the Court below dismissed the application. Aggrieved by the said order, the present revision is filed.
6
13. Heard Sri S.V.Muni Reddy, learned counsel for petitioners and none appeared on behalf of respondents in spite of service of notice.
14. Learned counsel for petitioners would submit that cause of action for filing the application arose after filing of the suit and hence, the application was filed seeking amendment. He would also submit that defendants did not deny the title of plaintiffs in the written statement, however during the course of trial, suggestions were put to witnesses denying the title. He would submit that the proposed amendment will not cause prejudice to defendants and in fact it avoids multiplicity of proceedings and thus prayed to set aside order of Court below.
15. Suit O.S.No.280 of 2007 was filed by petitioners seeking perpetual injunction on 22.10.2007. 5th defendant filed written statement on 24.03.2008. In written statement 5th defendant specifically asserted possession over the property by Adinarayana Raju by virtue of a registered sale deed dated 29.04.1993; that Adinarayana Raju‟s death without any issues and gifting of property by 1st defendant to 7 5th defendant under registered settlement deed dated 23.03.2007 and also delivery of possession. In Paragraph-6 of written statement it was specifically contended that suit for mere injunction is not maintainable without pleading for right and title and under the guise of exparte injunction, plaintiff tried to trespass into the schedule land of defendant covered under the above said sale deed and gift settlement deed.
16. The contention of 5th defendant in written statement as extracted supra, in the opinion of this Court, 5th defendant asserted title unto himself and also denied the title of plaintiff in the year 2008 itself. Plaintiff notwithstanding the said denial, failed to take steps pending the suit and evidence was let in by the plaintiff. Trial Court dismissed the suit observing that no injunction can be granted against the co-owner.
17. The appeal was filed in the year 2017 and the application seeking amendment was filed in the year 2021, nearly 4 years thereafter. In the affidavit filed in support of the petition seeking amendment it was contended that cause of action for filing the application arose after filing of the suit. 8 However, as observed supra, plaintiff‟s title was denied by defendant by filing written statement in the year 2008 itself. Thus the contention of appellant that cause of action arose pending the suit falls to ground.
18. The Court below came to conclusion that under Article 58 of the Limitation Act, the time prescribed is three years and hence, it is barred by limitation. However, since the property involved is immovable property, even if Articles 64 and 65 of Limitation Act made applicable, the application seeking amendment has to be filed within 12 years. As stated supra, written statement was filed on 24.03.2008 and the application seeking amendment, going by the affidavit was filed on 30.11.2021. There are no reasons assigned by the appellants, muchless valid reasons for non-filing of petition immediately after denial of title.
19. The due diligence test as contemplated under Order VI Rule 17 of CPC was not satisfied. The evidence was let in and the trial Court recorded findings in the judgment. By way of proposed amendment, plaintiffs intended to undo the 9 findings and in the opinion of this court, such course is impermissible.
20. The Court below considered all these aspects and dismissed the application. There is no illegality in the order passed by the Court below warranting interference of this Court under Article 227 of the Constitution of India.
21. Accordingly, the Civil Revision Petition is dismissed at admission stage. No costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 13th December, 2022 PVD