Karnataka High Court
Smt. Yashodamma vs Smt. Sarojamma on 8 February, 2024
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NC: 2024:KHC:5377
WP No. 33665 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 33665 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. YASHODAMMA
W/O. LATE CHIKKAPAPANNA
AGED ABOUT 68 YEARS
R/AT NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA
GKVK POST, BANGALORE - 560 065
...PETITIONER
(BY SRI. K R SREENIVASA PATAVARDHAN, ADVOCATE)
AND:
1. SMT. SAROJAMMA
W/O. LATE APPAJAPPA
AGED ABOUT 77 YEARS
R/AT NO. 1029 KAMADHENU NILAYA
III MAIN ROAD DIWANARAPALYA
GOKUL EXTENSION
BENGALURU - 560 054
Digitally signed
by PAVITHRA 2. SMT. SHARADAMMA
N
W/O. PILLAPPA
Location: high AGED ABOUT 75 YEARS
court of
R/AT NO. 135 6TH CROSS MATHRU LAYOUT
karnataka
CHIKKABOMMASANDRA VILLAGE
G.K.V.K. POST, BANGALORE - 560 065
3. SMT. AMMAYAMMA
W/O. RANGAHANUMAIAH
AGED ABOUT 73 YEARS
R/AT CHIKKABOMMASANDRA VILLAGE
G.K.V.K. POST, BENGALURU - 560 065
4. SMT. MANJULA
W/O. RANGANATHAPPA
AGED ABOUT 71 YEARS
-2-
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WP No. 33665 of 2017
R/AT CHIKKABOMMASANDRA VILLAGE
G.K.V.K. POST,BENGALURU - 560 065
5. SMT. LALITHAMMA
W/O. HANUMANTHAPPA
AGED ABOUT 53 YEARS
R/AT IVARAKANDAPURA VILLAGE
VENUGOPALASWAMY TEMPLE ROAD
HESARAGHATTA HOBLI
BANGALORE NORTH TALUK
BENGALURU - 560 090
6. SMT. NAGARATHNAMMA
W/O. Y. G. MANJUNATH
AGED ABOUT 51 YEARS
R/AT CHIKKABOMMASANDRA VILLAGE
G.K.V.K. POST,BENGALURU - 560 065
7. SMT. HANUMAKKA
W/O. LATE RANGAPPA
AGED ABOUT 92 YEARS
RESIDING AT NO. 767
7TH "A" CROSS YELAHANKA NEW TOWN
BENGALURU - 560 064
8. SRI R MANJUNATHA
W/O LATE RANGAPPA
AGED ABOUT 56 YEARS
R/A NO.767 7TH A CROSS
YELAHANKA NEW TOWN
BENGLAURU - 560064
9. SRI MUNIRAJU
S/O LATE CHIKKANNAPPA
AGED ABOUT 48 YEARS
R/A CHIKKABOMASANDRA VILLAGE
GKVK POST,BENGALURU - 560065
10. SRI SHIVANNA
S/O LATE CHIKKANNAPPA
AGED ABOUT 45 YEARS
R/A CHIKKABOMMASANDRA VILLAGE
G K V K POST,BENGALURU - 560065
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WP No. 33665 of 2017
11. SMT MANJULA
W/O LATE PRAKASH
AGED ABOUT 33 YEARS
R/A NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST,BENGALURU - 560 065
12. KUMARI BANUPRIYA
D/O LATE PRAKASH
AGED ABOUT 22 YEARS
R/A NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST,BENGALURU - 560 065
13. MASTER AJAY
S/O LATE PRAKASH
AGED ABOUT 17 YEARS
MINOR REPRESENTED BY HIS
NATURAL GUARDIAN AND
MOTHER RESPONDENT NO.11
R/A NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST,BENGALURU - 560 065
14. SRI SUBBARAYAPPA
S/O LATE MUNIHANUMAPPA
AGED ABOUT 48 YEARS
R/A CHIKKABOMMASANDRA VILLAGE
GKVK POST,BENGALURU - 560 065
15. SMT LALITHAMMA
W/O LATE MUNIKRISHNAPPA
AGED ABOUT 54 YEARS
R/A NO.461 5TH CROSS
BHOVI COLONY
BASAVESHWARANAGAR
BENGALURU - 560 079
16. SRI M SHANKARAPPA
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 40 YEARS
R/A NO.461 5TH CROSS
BHOVI COLONY
BASAVESHWARANAGAR
BENGALURU - 560 079
-4-
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17. SRI HARISH
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 31 YEARS
R/A NO.461 5TH CROSS
BHOVI COLONY
BASAVESHWARANAGAR
BENGALURU - 560 079
18. SRI MAHADEVA
S/O CHIKKANNA
AGED ABOUT 47 YEARS
R/A NO.132 7TH CROSS
SHARADANAGAR GKVK POST
BENGALURU - 560 065
19. SRI C RAMESH
S/O CHIKKANNA
AGED ABOUT 43 YEARS
R/A 2ND MAIN ROAD
CHIKKABOMMASANDRA GKVK POST
BENGALURU - 560 065
20. SRI G ARASAYYA
S/O GANGAARASAIAH
AGED ABOUT 63 YEARS
R/A NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA GKVK POST
BENGALURU - 560 065
21. SRI CHANDRASHEKARAIAH
S/O ANJANAPPA
AGED ABOUT 51 YEARS
R/A NO.50 2DN CROSS
SOMESHWARANAGAR
GKVK POST,BENGALURU - 560 065
22. SMT JAGADAMBHA
W/O NARASIMHA REDDY
AGED ABOUT 54 YEARS
R/A NO.11 3RD MAIN ROAD
NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST,BENGALURU - 560 065
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23. SMT YASHODHA
W/O G S KUMARASWAMY
AGED ABOUT 50 YEARS
R/A NO.12 3RD CROSS
NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST, BENGALURU - 560 065
24. SMT B SOWBHAGYA
W/O JAYARAMAIAH
AGED ABOUT 52 YEARS
R/A NO.1/C 3RD CROSS
NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST, BENGALURU - 560 065
25. SMT KUSUMA
W/O VASUDEVAPPA
AGED ABOUT 59 YEARS
NO.6 R/A NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST, BENGALURU - 560 065
26. SRI N S BHAT
S/O NARAYANA BHATTA
AGED ABOUT 54 YEARS
R/A NO.10 NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST, BENGALURU - 560 065
27. SRI B K MANJUNATH
S/O B KRISHNAPPA
AGED ABOUT 51 YEARS
R/A NO.7 II MAIN ROAD
NEAR SUNSHINE PUBLIC SCHOOL
CHIKKABOMMASANDRA VILLAGE
GKVK POST, BENGALURU - 560 065
28. SRI HANUMANNA
S/O NARASAPPA
AGED ABOUT 57 YEARS
WORKING AT L & T SITE NO.13
NO.1A 7TH CROSS
MATHRU LAYOUT
GKVK POST, BENGALURU - 560 065
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WP No. 33665 of 2017
29. SRI P N NARASIMHA REDDY
S/O NAYATHAPPA
AGED ABOUT 62 YEARS
R/A NO.19SID
GANDHI KRUPA
SINCE CENTER TEACHERS QUARTERS
BENGALURU - 560 065
30. SRI B S SUNDARAPPA
S/O SHIVAPPA
AGED ABOUT 74 YEARS
R/A NO.54 KRISHNANAGAR LAYOUT
II STAGE RAJMAHAL VILAS
BENGALURU - 560 009
31. SMT N MANJULA
W/O K SEENAPPA
AGED ABOUT 52 YEARS
R/A NO.26 II CROSS
KAVERI LAYOUT
TAVAREKERE MAIN ROAD
BENGALURU - 560 029
32. SRI JAGANATH
S/O NARAYANA GOWDA
AGED ABOUT 67 YEARS
R/A NO.233 (NEW NO.526)
1ST FLOR 1ST BLOCK
JAYANAGAR, BENGALURU
33. SRI N J NARASIMHA BABU
S/O SRI JAY RAO
AGED ABOUT 40 YEARS
R/A NO.526 BHARAMANAGARA BEEDI
YELAHANKA TOWN
BENGALURU - 560 064
34. SMT PADMA
W/O MOHAN BABU
AGED ABOUT 49 YEARS
R/A CHIKKABOMMASANDRA VILLAGE
GKVK POST, BENGALURU - 560 065
...RESPONDENTS
(BY SRI MANJUNATH HEGDE FOR;
SRI T SESHAGIRI RAO FOR R1 TO R6;
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WP No. 33665 of 2017
SRI T P SRINIVASA FOR R10, 11, 14 TO 17;
R8, 18 TO 21, 23, 28- SERVED UNREPRESENTED;
R13 IS MINOR AND REP. BY R11;
R12, R22, R24 TO 27, R29 TO 39 ARE DELETED VIDE
ORDER DATED 13.06.2022;
R1-R6 AND R8 ARE TREATED AS LR'S OF DECEASED R7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER PASSED IN IA UNDER ORDER VI RULE 17 IN
O.S.NO.1590/2015 DATED 18.07.2017 BY THE LEARNED XLI
ADDITIONAL CITY CIVIL JUDGE AT BANAGLORE [CCH-42] AT
ANNEXURE-J AND ETC.,
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Defendant No.3 in OS No. 1590 of 2015 on the file of the
learned XLI Additional City Civil Judge, Bengaluru, is seeking
writ of certiorari to quash the order dated 18.07.2017 allowing
IA filed under Order VI Rule 17 of CPC and permitting the
plaintiffs to amend the plaint.
2. Heard Sri. K.R. Sreenivasa Patavardhan, learned
counsel for the petitioner, Sri. Manjunath Hegde, learned
counsel for respondent Nos.1 to 6 and Sri T P Srinivasa,
learned counsel for respondent Nos.9 to 11 and 14 to 17.
Perused the materials on record.
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3. Learned counsel for the petitioner contended that
respondent Nos. 1 to 6 as plaintiffs filed the suit OS No. 1590
of 2015 seeking various reliefs, including declaration of their
title, to set aside various sale deeds and the decree passed in
RFA No.757 of 2013 and for partition and separate possession.
A specific stand was taken by the plaintiffs in the plaint that the
defendants have failed to redeem the mortgage, therefore the
plaintiffs are in adverse possession and enjoyment of the
schedule property and perfected their title as such, by
operation of law. Later, the application was filed under Order
VI Rule 17 of CPC seeking the remove several paragraphs in
the original plaint, wherein, it is pleaded that the plaintiffs have
perfected their title by adverse possession against the real
owner and in its place wanted to include a paragraph that since
the mortgage was not redeemed, the right to redeem has been
extinguished and consequently, the plaintiffs acquired title over
the property by operation of law. It is nothing but withdrawing
the admission made in the original plaint, which is not
permissible under law.
NC: 2024:KHC:5377
4. Learned counsel also submitted that earlier OS
No.1332 of 2012 was filed by the mother of plaintiff Nos.1 to 6
seeking ownership on similar grounds. The plaint came to
rejected by the Trial Court. When the said judgment was
challenged by filing RFA No. 757 of 2013, even the RFA was
dismissed. Now the said judgment and decree in the said RFA
is tried to be challenged, which is not permissible under law.
Under such circumstances, he prays for allowing the petition by
setting aside the impugned order.
5. Per contra, learned counsel for respondent
Nos. 1 to 6 submitted that, these respondents are the plaintiffs
before the Trial Court. They have filed the suit for declaration
and their title by operation of law and for other reliefs. When
the plaintiffs have specifically claimed that they are the
absolute owners of the schedule property by operation of law,
even after amendment, the plaintiffs have not amend the
prayer column. On the other hand, very same prayer holds
good. However, in the body of plaint, the plaintiffs have
claimed right by adverse possession. Therefore, the plaintiffs
want to delete the said portion in the plaint and to contend that
they have acquired title by operation of law.
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6. Learned counsel submitted that even as the
inconsistent pleas are not permitted to be pleaded. But in the
present case, whether the plaintiffs have acquired title as the
mortgage was not redeemed is a question of law and therefore,
there cannot be any inconsistency. Under such circumstances,
the Trial Court was right in allowing the application.
Accordingly, he prays for dismissal of the petition.
7. Learned counsel for respondent Nos.9 to 11 and 14
to 17 submitted that they are the purchasers of the property
and they are supporting the contention of defendant No.3. The
Trial Court has committed an error in allowing the application.
Hence, he prays for allowing the petition by setting aside the
impugned order.
8. Initially, the plaintiffs filed the suit for declaration of
title, to set aside various sale deeds and for partition and
separate possession. It is specifically pleaded in the plaint that
there was a mortgage, where the defendants are the
mortgagers and plaintiffs are the mortgagees. The defendants
failed to redeem the mortgage and the plaintiffs have perfected
their title by adverse possession and therefore, they are to be
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declared as absolute owners by operation of law. Now the
plaintiffs wants to withdraw the pleading is paragraph No.8 to
the effect that they have perfected their title by adverse
possession. But on the other hand, they want to insert new
paragraph to contend that since the defendants failed to
redeem the mortgage, their right in respect of the property was
extinguished and consequent upon which, by operation of law
the father of the plaintiffs acquired absolute title over the
property. Accordingly, few other paragraphs where there is
reference to adverse possession is proposed to be deleted and
in its place the words operation of law was intended to be
included.
9. Now the question arises as to whether the plaintiffs
can delete portion of paragraph No.8, where the plaintiffs have
taken specific contention regarding acquiring the title by
adverse possession and in its place contend that on failure on
the part of the defendants to redeem the mortgage, their right
extinguished and the plaintiffs acquired title by operation of
law. Definitely, these two contentions are inconsistent with one
another. When the plaintiffs filed the suit for declaration and for
other reliefs, the defendants have taken specific contention in
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the written statement. The defendants are entitled to take
advantage of the pleadings in the plaint initially made by the
plaintiffs. Now by deleting the portion of pleading in the plaint,
the plaintiffs cannot withdraw such contentions which was
advantageous for the defendants. It is well settled proposition
of law that a party cannot be permitted to withdraw his
contention or admission which has created right in favour of the
defendants in defending the suit.
10. It is to be noticed that, as rightly contended by
learned counsel for the respondents, in the prayer the plaintiffs
have not sought for declaration of their title by adverse
possession, but they have sought for declaration by operation
of law. The said operation of law is whether by adverse
possession or by extinguishment of right of the defendants over
the schedule property is to be considered by the Trial Court
after full-fledged trial. Therefore, I am of the opinion that the
plaintiffs cannot be permitted to delete the portion of paragraph
No.8, where a specific contention was taken, as the same
would prejudice the right of the defendants. But on the other
hand, if the plaintiffs are denied the right to remove or delete
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any portion of the pleading, which is already on record and if
they are permitted to plead a portion of pleading, which they
proposed to be included, no prejudice would be caused to the
defendants and on the other hand, the plaintiffs will take the
risk of proving their contention about their right over the
schedule property. Therefore, I am of the opinion the
application filed under Order VI Rule 17 of CPC could be
allowed in part.
11. Accordingly, I proceed to pass the following:
ORDER
(i) The Writ Petition is allowed in part.
(ii) The order dated 18.07.2017 passed in OS No. 1590
of 2015 on the file of learned XLI Additional City Civil Judge,
Bengaluru is hereby set aside.
(iii) Consequently, IA filed under Order VI rule 17 of
CPC is allowed in part.
(iv) The prayer of the plaintiffs to remove the wordings
in paragraph Nos. 8, 10 and 11 of the plaint is rejected.
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However, they are permitted carry out the amendment as
sought in the plaint to insert the wordings proposed to be
included in paragraph Nos.8 and 11.
Sd/-
JUDGE
SPV
