Karnataka High Court
Mallappa vs Basalingamma on 14 February, 2025
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WP No. 200418 of 2025
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.200418 OF 2025 (GM-CPC)
BETWEEN:
MALLAPPA S/O SIDDAPPA SHYABADI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O NAGARAHALLI, TQ: SINDAGI-586 202.
...PETITIONER
(BY SRI D.P. AMBEKAR, ADVOCATE)
AND:
1. BASALINGAMMA W/O GURUPADAPPA SHYABADI,
AGE: 76 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed 2. CHIDANAND S/O GURUPADAPPA SHYABADI,
by RENUKA AGE: 53 YEARS, OCC: AGRICULTURE AND JOB,
Location: High
Court Of 3. MALLIKARJUN S/O GURUPADAPPA SHYABADI,
Karnataka AGE: 48 YEARS, OCC: JOB,
4. GANGAMMA W/O LAXMAN SHYABADI,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
5. KAVYA D/O LAXMAN SHYABADI,
AGE: 22 YEARS, OCC: HOUSEHOLD,
6. SAHANA D/O LAXMAN SHYABADI,
AGE: 19 YEARS, OCC: STUDENT,
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WP No. 200418 of 2025
ALL ARE R/O NAGARAHALLI,
TQ: SINDAGI-586 202.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI,
QUASHING ANNEXURE-F, NAMELY THE ORDER DATED
28.01.2025 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND
JMFC, SINDAGI, ALLOWING I.A. NO.11 IN O.S.NO.93/2017
AND FURTHER REJECT THE SAID I.A. NO.11 IN O.S.
NO.93/2017 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND JMFC SINDAGI. B) SUCH FURTHER OR OTHER RELIEFS BE
GRANTED AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS
AND CIRCUMSTANCES OF THE CASE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ)
The defendant in O.S.No.93/2017 on the file of the
Additional Senior Civil Judge and JMFC, Sindagi is before
this Court challenging an order dated 28.01.2025, by
which an application filed by the plaintiffs under order VI
Rule 17 of CPC was allowed.
2. The suit in O.S.No.93/2017 was filed for
declaration of title and for perpetual injunction to restrain
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the defendant from interfering with the possession of the
plaintiffs in the suit schedule property. The suit property is
an agricultural land bearing Sy.No.92/3 of Huvinhalli
measuring 5 acres 21 guntas. The plaintiffs claimed that
the suit property was their joint family ancestral property
which their predecessor derived at a partition in the year
1992-93 and that from then on, they were in possession of
the suit property. They alleged that the defendant, who
was one of the members of the erstwhile joint family, was
disturbing their possession in the suit property. Therefore,
they sought for declaration of their title and for perpetual
injunction.
3. The suit was contested by the defendant, who
claimed that a partial partition took place in the year
1993, in terms of which, Sy.No.96/1 measuring 9 acres 19
guntas was allotted to the share of his father. He
contended that thereafter, the predecessor of the plaintiffs
and the other coparceners had assured that they would
effect a further partition in respect of the land bearing
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Sy.Nos.92/1 and 92/2. He contended that during January,
1994, his father came to know that the other coparceners
had divided Sy.No.92/1 and 92/2 without his consent,
which resulted in a reconciliation before the elders of the
village. At such conciliation, the other coparceners
admitted their mistake and as per the advice of the elders,
the predecessor of the plaintiffs voluntarily transferred the
suit land in favour of the father of the defendant and
delivered possession of the suit land and filed a Varadi to
that effect on 28.01.1994 which resulted in a M.E.No.1228
of Huvinhalli village and the name of his father was
recorded in the revenue records. Later, as per the advice
of the elders of the village, the other member of the joint
family, transferred the land bearing Rs.No.92/1A in favour
of the father of the defendant and delivered possession on
28.01.1994 and submitted a Varadi which was certified in
M.E.No.1229. Thus, he contends that his father was in
exclusive possession of the suit land as on 28.01.1994. He
also claimed that if the Court were to come to the
conclusion that his father did not derive lawful title in
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respect to the suit property, then he prayed that the Court
declare that he had acquired title by adverse possession.
He also contended that his father divided the suit property
between him and his brother on 26.10.1996 and at the
said partition, Sy.No.96/1 measuring 9 acres 19 guntas
was allotted to the share of his brother, while Sy.No.92/1A
measuring 5 acres 20 guntas was allotted to the share of
his another brother and Sy.No.92/1B was allotted to his
share and that the said partition was duly registered
before the Sub-registrar, Sindagi. He contended that the
partition between him and his brothers was known to the
plaintiffs. With this and other contentions, the defendant
denied the title of the plaintiffs and also claimed that the
plaintiffs were never in possession of the suit property and
therefore the suit for declaration of title and perpetual
injunction was not maintainable.
4. Based on these contentions, the Trial Court
framed the following issues:
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"1) Whether plaintiffs prove their title and
possession over the suit schedule property
gunthas as on the date of suit?
2) Whether plaintiffs prove the alleged
interference by the defendants?
3) Whether suit is barred by time?
4) Whether plaintiffs are entitled for relief as
prayed in the suit?
5) What order or decree? "
5. Later after the evidence of the parties was
recorded, the plaintiffs filed an application under Order VI
Rule 17 of CPC to amend the plaint to incorporate an
alternate relief for recovery of possession in the event the
Court held that the plaintiffs were not in possession of the
suit property. The application was contested by the
defendant on the ground that the same was filed belatedly
that too after the parties had adduced their evidence. The
defendant had also contended that the plaintiffs had
deliberately not sought for the alternate relief at the
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earliest point of time even though the plaintiffs knew that
they were not in possession of the suit schedule property.
6. The Trial Court in terms of the impugned order,
allowed the application on the ground that the plaintiffs
had sought for declaration of their title to the suit property
and that the suit should not fail on a technical ground that
the plaintiffs had not sought for recovery of possession. It
relied upon the judgment of the Honourable Apex Court in
the case of Dinesh Goyal versus Suman Agarwal1.
Being aggrieved by the said order, the defendant is before
this Court.
7. The learned counsel for the defendant
contended that the plaintiffs were aware that the
defendant was in possession of the suit property. He
contends that the defendant had specifically contended in
the written statement that the predecessor of the plaintiffs
had handed over possession of the suit property to the
father of the defendant in the year 1994 and that the
2024 SCC Online SC 2615
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revenue documents were brought about in respect of the
suit property in the name of the father of the defendant.
He therefore contended that the plaintiffs knew fully well
that they had lost possession of the suit property in the
year 1994 itself. Therefore, he contends that the plaintiffs
must have sought for the relief at the earliest point in time
at least before the issues were framed in the suit. He
contends that the revenue documents stood testimony to
the claim of the defendant that the possession of the suit
property was delivered to the father of the defendant at an
undisputed point of time. Therefore, he contends that the
plaintiffs must have sought for the amendment at the
earliest point in time.
8. I have considered the submissions made by the
learned counsel for the defendant.
9. As rightly contended by the learned counsel for
the defendant, the defendant had taken a specific
contention in the written statement that the suit property
was given up by the predecessor of the plaintiffs in favour
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of the father of the defendant by submitting a Varadi in
the year 1994. In view of the contention raised by the
defendant in written statement, the plaintiffs were bound
to seek for the amendment to recover possession of the
suit property at the earliest point in time. However, we
cannot loose sight of the fact that the suit property is an
agricultural land and the plaintiffs claim title to the suit
property under their predecessor, who derived it at a
partition between him and his family members. Therefore,
it is for the plaintiffs to prove the prior partition and if they
are successful in that attempt, the plaintiffs were bound to
succeed in the suit. However, if the defendant is able to
establish that the predecessor of the plaintiffs had given
up the suit property to the father of the defendant, the
plaintiffs are bound to fail. In the event of the plaintiffs
proving their title to the suit property and if it is found that
the defendant is in possession of the suit property, then
the suit filed by the plaintiffs should not fail on a technical
ground namely, that the plaintiffs did not seek for
recovery of possession of the suit property. It is also
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relevant to note that the amendment application to include
the alternate relief of recovery of possession was filed well
within 12 years from the date of filing of the suit.
10. In that view of the matter, the Trial Court was
right in allowing the application filed by the plaintiffs so
that the plaintiffs are not sent empty handed even after
getting a decree in the suit. Hence, there is no need to
interfere with the impugned order passed by the Trial
Court. Hence, the writ petition is dismissed.
Any observations made in this writ petition shall not
come in the way of the Trial Court deciding the suit on
merits.
It is open for the defendant to file an additional
written statement
Sd/-
(R.NATARAJ)
JUDGE
RSP
CT: AK
