Karnataka High Court

Sri H N Narasimharaju vs The Chief Secretary on 23 February, 2022

Bench: Alok Aradhe, M.G.S. Kamal

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                       PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                          AND

         THE HON'BLE MR.JUSTICE M.G.S. KAMAL

      WRIT PETITION. NO.22092 OF 2019 (KLGP)

BETWEEN:

SRI. H.N. NARASIMHARAJU
S/O NARASIYAPPA
AGED ABOUT 44 YEARS
R/AT HIRETHOTLUKERE VILLAGE
KORA HOBLI
TUMKURU TALUK
& DISTRICT - 572 128.
                                        ... PETITIONER
(BY SRI. RAMESH K.R., ADVOCATE (P/H)


AND:

1.     THE CHIEF SECRETARY
       GOVERNMENT OF KARNATAKA
       VIDHANA SOUDHA
       DR. B.R. AMBEDKAR VEEDHI
       BENGALURU - 560 001.

2.     THE DEPUTY COMMISSIONER &
       DISTRICT MAGISTRATE
       TUMKURU DISTRICT
       TUMKURU - 572 101.

3.     THE ASSISTANT COMMISSIONER
       & SUB-DIVISIONAL MAGISTRATE
       TUMKURU SUB-DIVISION
       TUMKURU - 572 101.
                              2

4.    THE TAHSILDAR & TALUK
      MAGISTRATE
      TUMKURU TALUK
      TUMKURU - 572 101.

5.    SRI. K.R. RANGASWAMY
      S/O LATE RANGAPPA
      AGED ABOUT 69 YEARS
      R/AT KUCHANGI PALYA VILLAGE
      KASABA HOBLI
      TUMKURU TALUK
      TUMKURU DIST - 572 101.
                                           ... RESPONDENTS

(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1-R4 (P/H)
    SRI. HANUMANTHAPPA B. HARAVIGOUDA, ADVOCATE FOR R5)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED THE ORDER DATED:26.04.2019 PASSED ON I.A.
NO.19 IN L.G.C (T) 1151/2017 AT ANNEXURE-J PASSED BY THE
KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURT
AT BENGALURU, AND THEREBY ALLOW I.A. NO.19 IN L.G.C. (T)
1151/2017 AS PRAYED FOR AND ETC

     THIS PETITION COMING ON FOR HEARING THIS DAY,
M.G.S.KAMAL J, MADE THE FOLLOWING:


                        ORDER

Present writ petition is filed seeking issue of writ of

certiorari quashing the order dated 26.04.2019 passed in

LGC(T)1151/2017 by the Karnataka Land Grabbing Special

Court, Bengaluru, whereby application in I.A.No.19 filed

by the petitioner seeking amendment of plaint was

dismissed by the Special Court and further, the petitioner

has sought for order allowing the said application.

2. It is the case of the petitioner that originally, land

bearing Survey No.74/3 of Kuchangi village, Kasaba Hobli,

Tumakuru Taluk measuring 4 acres including 20 guntas of

karab land (subject property) was being unauthorisedly

cultivated by one Kempanarasaiah. The respondent

authorities had regularized the unauthorised occupation of

Kempanarasaiah and had granted the subject property

under Darkhast. A Saguvali chit had also been issued,

revenue entries were accordingly mutated in his name.

Unforfunately, he had lost the said Saguvali chit. That the

petitioner purchased the subject property under a deed of

sale dated 31.10.2007 from the said Kempanarasaiah.

The petitioner has been in physical possession and

enjoyment of the property from the date of its purchase.

3. That when things stood thus, 5th respondent

started interfering with the peaceful possession and

enjoyment of the subject property by the petitioner

alleging that it is the Government land. As such,

petitioner along with said Mr.Kempanarasaiah filed a suit

in O.S.No.43/2010 on the file of II Addl. Senior Civil

Judge, Tumakuru, seeking reliefs of declaration and

permanent injunction wherein they sought declaration of

title over the subject property having perfected by way of

adverse possession.

4. That upon an application before the 4th

respondent-Tahsildar for issue of a certified copy of the

Grant Certificate, the Tahsildar had issued an

endorsement that the documents are not available in the

office. Against the said endorsement, an appeal was filed

before the Karnataka Information Commission wherein the

Tahsildar had filed his written statement that the original

file relating to regularization of unauthorised cultivation of

subject property was not available and that given some

time, he would make necessary efforts to search and trace

the same. That it was under the said circumstances

petitioner and his vendor had filed the above suit for

declaration of title by adverse possession and for other

reliefs.

5. That the respondents appeared and filed written

statement denying the case of the petitioner. The learned

Senior Civil Judge framed issues, recorded evidence of

both the parties and posted the matter for arguments. At

that stage, in view of the introduction of Karnataka Land

Grabbing Prohibition Act, 2011, the suit was transferred to

the Special Court. Thereafter, the petitioner had made an

application to the Tahsildar seeking issue of certified copy

of Land Grant Register extract in respect of the subject

property. Accordingly, the Tahsildar issued the certified

copy of the Land Grant Register extract. That the said

certified copy of the Land Grant Register extract reflected

the grant of subject land in favour of the vendor of the

petitioner back in the year 1962. Thereafter, the

petitioner had made an application before the Special

Court to produce and exhibit the said document and since

the 5th respondent had disputed the genuineness of the

said document, original records were secured by the

Special Court and on comparison, it was found to be

tallying with the original register maintained in the office

of Tahsildar.

6. That since there were no specific pleadings in

plaint in O.S.No.43/2010 relating to the grant made as

above in favour of the vendor of the petitioner, an

application (I.A.No.19) under Order VI Rule 17 of CPC

seeking amendment of plaint with regard to the land grant

and also to withdraw the relief of declaration based on

"Adverse Possession" was made. Objections to said

applications were filed primarily contending that the said

application is barred by limitation as the same is filed after

nine years of the suit and that the same if allowed, would

change the nature of the suit.

7. The Special Court, by the impugned order dated

26.04.2019, dismissed the said application. Aggrieved by

the same, petitioner is before this Court.

8. Learned counsel for the petitioner reiterating the

grounds urged in the writ petition submits that the

amendment to the plaint as sought is based on the

document issued by the 4th respondent-Tahsildar which

was traced during the pendency of the suit. That the 4th

respondent-Tahsildar had prior to filing of the suit, issued

endorsement with regard to non-availability of the records

relating to grant of subject property. That if the 4th

respondent had issued the required documents on earlier

occasion, there would not have been any delay nor

requirement of any application seeking amendment. That

for want of necessary documents the petitioner and his

vendor were constrained to file suit seeking relief of

declaration based on adverse possession which now in the

light of the availability of the document requires to be

amended. That the Special Court thus erred in not

allowing the application for amendment.

9. Learned HCGP vehemently opposed the writ

petition on the ground that allowing of the application

would change the nature of suit. Therefore, the Special

Court was justified in dismissing the said application.

10. Heard the learned counsel for the parties and

perused the records.

11. The respondents have not disputed the issuance

of certified copy of the Land Grant Register Extract as per

Annexure-F enclosed to the petition. The said Land Grant

the suit before the Special Court. It is also not disputed

that on an earlier occasion, the Tahsildar had issued an

endorsement regarding non-availability of the records and

had even filed a statement before the Karnataka

Information Commission seeking time for searching and

tracing the original file. In the aforesaid facts and

circumstances, no malafide intentions can be attributed to

the petitioner for not being able to plead and produce the

document with regard to grant of land at the time of filing

of the plaint. In any event, the pleadings sought to be

incorporated by way of amendment to the plaint including

withdrawal of prayer regarding adverse possession is in

the light of the certified copy of the Land Grabbing

genuineness and veracity of which has already been

verified by the Special Court as stated in Para 8 of the

petition.

12. In the above facts and circumstances, the

reasons assigned by the Special Court that the proposed

1st amendment would change the nature and character of

the suit and the proposed 2nd amendment is not in

consonance with contents of Para 13 of the plaint

averment to be the reason to dismiss the application,

cannot be sustained.

13. Since the suit is for declaration of title based on

the documents issued by the 4th respondent which was

not made available to the petitioner on earlier occasion, no

hardship or prejudice of any nature would be caused to

the respondent-authorities by the proposed amendment.

The Apex Court in the case of REVAJEETU BUILDERS AND

DEVELOPERS vs. NARAYANASWAMY AND SONS AND

OTHERS ((2009)10 SCC 84), at Para 66 of its Judgment,

has laid down factors to be considered while dealing with

application for amendment, which is extracted hereunder:

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

      i)    Whether      the    amendment          sought     is
            imperative    for     proper     and      effective
            adjudication of the case;

ii) Whether the application for amendment is bona fide or mala fide;

iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation.

     v)     Whether     the    proposed     amendment
            constitutionally        or    fundamentally
            changes to nature and character of the
            case; and


     vi)    As a general rule, the court should

decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

The Special Court ought to have taken into consideration

the aforesaid factors before dismissing the application for

amendment as sought for by the petitioner .

14. In view of the preceding analysis, this Court is of

considered view that the petitioner has made out a case

for allowing of the writ petition. Petitioner be permitted to

amend the plaint as sought for in the application in

I.A.No.19. Order dated 26.04.2019 passed by the Special

Court in LGC(T)No.1151/2017 on I.A.No.19 is set aside.

Consequently, application in I.A.No.19 filed by the

petitioner under Order VI Rule 17 is allowed. Petitioner is

permitted to carry out the amendment of the plaint