3. Whether plaintiff proves that she is entitled
for 1/3rd share in the suit properties?
4. What relief plaintiff is entitled for?
5. What order or decree?
6. The plaintiff examined herself as PW1 and
evidence at Exs.P1 to D5 were marked on her behalf.
7. After hearing the parties, the Trial Court proceeded
respectively. However Issue Nos.2, 3 and 4 were answered
share in the suit schedule properties. Aggrieved by the impugned
8. During pendency of the appeal, the appellant has
landed properties as additional suit schedule properties. By way
schedule properties. The proposed amendment sought for by the
And in the Plaint Schedule, after Item No. 2, add the
following two lands as :-
9. The application I.A.No.1/2025 filed by the
10. Heard learned counsel for the appellant and learned
counsel for the respondent and perused the material on record.
11. Following points arise for consideration in the present
(i) Whether I.A.No.1 of 25 filed by the
appellant/plaintiff seeking amendment of the
plaint deserves to be allowed?
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(ii) Whether the impugned judgment and decree
passed by the trial Court warrants
interference by this Court in the present
appeal?
Regarding Point No.(i) :
12. As stated supra, I.A.No.1/2025 filed by the appellant
seeking amendment of the plaint by incorporating additional
paragraph No.8A to the plaint and correspondingly including two
additional landed properties as additional items of suit schedule
properties.
13. In the affidavit filed in support of the application, the
appellant/plaintiff specifically states that, she was not educated
and did not have knowledge of the affairs of her husband's family
and due to lack of information and ignorance and due to
oversight and inadvertence, she omitted to include two additional
items among the suit schedule properties, which are now sought
to be included by way of the proposed amendment. It is
submitted that the proposed amendment does not in any way
change or alter the nature or character of the suit or its cause of
action, and in order to avoid multiplicity of proceedings, it is
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necessary that the proposed amendment be allowed and the
appellant/plaintiff be permitted to include two additional suit
schedule properties to the existing suit schedule properties.
14. Per contra it is submitted by the learned counsel for
the respondent that there is no merit in the application and that
the same is liable to be dismissed.
15. It is well settled that a suit for partition should
encompass and include all co-sharers and all items of joint family
properties. Insofar as all co-sharers are concerned, there is no
dispute between the parties that the appellant and respondent
are the only co-sharers and there are no other co-sharers.
16. Though the respondent would seek to contend that
the proposed two additional items of properties are not joint
family properties and that the plaintiff would not be entitled to
claim partition in respect of the additional two items of
properties, having regard to the admitted fact that these two
properties were not included among the four items of suit
schedule properties and neither party had any opportunity to put
forth their respective contention/s in relation to these two
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additional items of properties, without expressing any opinion on
the merits/demerits of the rival contentions, we deem it to just
and appropriate to allow I.A.No.1/2025 reserving liberty in
favour of the respondent/defendant No.2 to file additional written
statement to the amended plaint putting forth all contentions on
merits, as well as all other aspects in accordance with law.
17. It is needless to state that the appellant/plaintiff
would also be entitled to include all alleged additional co-shares
by way of seeking impleadment by filing necessary application in
that regard. Accordingly, I.A.No.1/2025 filed by the plaintiff
deserves to be allowed and point No.(i) is answered accordingly.
Regarding Point No.(ii) :
18. While dealing with point No.(i), we have come to the
conclusion that the application seeking amendment filed by the
plaintiff deserves to be allowed. The next question that arises for
consideration is the course to be adopted by this Court, after
allowing the said amendment application. As stated supra, the
additional two properties which have been permitted to be
incorporated into the plaint by way of the amendment were not
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subject matter of the original plaint or the proceeding before the
Trial Court and there is neither any issue framed nor evidence
adduced or finding recorded by the Trial Court in relation to two
additional properties. It is also pertinent to note that respondent
specifically denied the contention of the plaintiff that she is
entitled to a share in these two additional items of suit schedule
properties.
19. Under these circumstances, we deem it just and
appropriate to set aside the impugned judgment and decree and
remit the matter back to the Trial Court for reconsideration
afresh on merits and in accordance with law, on all issues
including the two additional items of suit schedule properties and
by issuing certain directions by keeping open all rival contentions
of the parties. Point NO.(ii) is accordingly answered.
20. In the result, we pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) Impugned judgment and decree dated
28.07.2023 passed in O.S.No.92/2021 by the
Additional Senior Civil Judge, Jamkhandi, is
hereby set aside.
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(iii) The matter is remitted back to the Additional
Senior Civil Judge, Jamkhandi, for
reconsideration afresh on all issues and in
accordance with law.
(iv) I.A.No.1/2025 filed by the appellant/plaintiff
stands allowed as prayed for.
(v) Parties are directed to appear before the Trial
Court on 29.10.2025.
(vi) The appellant/plaintiff is directed to carry out
the amendment and file amendment plaint
before the Trial Court on 29.10.2025.
(vii) Liberty is reserved in favour of
respondent/defendant No.2 to file additional
written statement to the amended plaint.
(viii) Liberty is also reserved in favour of the parties
to file additional interlocutory applications,
which shall be considered by the Trial Court and
disposed of in accordance with law.
(ix) Parties are also reserved liberty to adduce
additional oral and documentary evidence in
support of their respective claims.
(x) All rival contentions on all aspects of the matter
on all the properties including the two additional
properties are kept open and no opinion is
expressed on the same.
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(xi) During pendency of the present appeal the
appellant had filed an application I.A.No.1/2023,
which was allowed by this Court vide order
dated 13.09.2024. Liberty is reserved in favour
of the appellant/plaintiff to file an identical
application before the Trial Court, which shall
provide an opportunity to the respondent /
defendant No.2 to file objections to the said
application and consider and pass appropriate
orders on the same in accordance with law. All
contentions of the parties with regard to the
same are also kept open.
(xii) The Trial Court is directed to dispose of the suit
as expeditiously as possible.
(xiii) Registry to retransmit the records back to the
Trial Court, forthwith.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
EM
Ct:vh
