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2016 DIGILAW 191 (KAR)

Dattatraya Rao v. Baswantappa

2016-02-23

RAM MOHAN REDDY

body2016
ORDER : Ram Mohan Reddy, J. 1. Petitioner's father instituted O.S. No. 269 of 2011 on 10.10.2011 before the I Addl. Civil Judge & JMFC, Bidar to declare as wrong and incorrect the entries in the record of rights of revenue settlement in respect of Sy. No. 2A of Bagh-e-Kheredee village; direct correction/amendment by way of alteration and preparation of hissa survey map of 6 acres instead of 4 acres 30 guntas in lands bearing Sy. No. 2A owned and possessed by the plaintiff and direct cancellation of the entries in the record of rights in respect of Sy. No. 2A and 2AA from the year 2009-10 of village Bagh-e-Kheredee and other equitable and alternative reliefs. In the plaint it was asserted that one Govindrao S/o. Gopalrao the uncle of the plaintiff, since deceased, was pattedar, owner and possessor of land in Sy. No. 2 measuring 9 acres 25 guntas, who joined one Bhimanna, the father of the defendant, as shikimidar in cultivation for convenience. Plaintiff during his boyhood was ignorant about the pattedar's mode of acquisition of the suit land, which was called "Mutt Land" with one well near Mutt building for irrigation. That Govindrao and Bhimanna are said to have jointly cultivated the North Western area of the suit land behind and adjacent to Mutt which is approximately 1/3rd of the area of the suit land, till the year 1353 Fasli (1943 A.D.) the year when the plague epidemic infected Bidar town. The rest of the area was barren waste and fallow land, that is 2/3rd portion approximately 6 acres with one deserted and dilapidated useless well. He further asserted that at the time of plague epidemic of 1353 Fasli the pattedar Govindrao constructed a pakka tin shed house in the fallow waste land near the mango grove for his family to stay therein, causing suspicion and prejudice in the mind of Bhimanna, the shikimidar thinking it would cause and create complication in the partition and separate cultivation by shikimidar and as the financial condition was not fit for paying construction charges of the house. Hence a partition and separation is said to have taken place when shikimidar was allotted the fertile land measuring 3 acres with workable well near the Mutt building for irrigation and the pattedar Govindrao sympathetically and mercifully allotted the said cultivable land on the condition that the pattedar will have interest in the irrigable well and allotted Mutt area, which will be kept in joint and common for the service of both, while Southern portion of the land was that of pattedar, and the shikimidar will have to form a separate path for his use and for the use of Devotees and Travellers of the Mutt at the expenses of the shikimidar, on the Western side, with no right to either party to sell the allotted land or to alienate to any person and in case of default will have right of preemption. Certain disputes having arisen led to the institution of the suit for the reliefs noticed supra. 2. Defendant filed written statement on 02.12.2011 denying the allegations in the plaint. It appears that the plaintiff died in or about 2013-14, whence petitioner came on record as legal heir since right to suit survived and having noticed a Will where under the suit lands were bequeathed in favour of his father filed I.A. IX on 25.07.2014, under Order 6 Rule 17 CPC to amend the plaint to include the plea of the Will propounded. That application was opposed by filing counter statement denying the claim of Will propounded by the legal representative of the plaintiff and that amendment would change the nature of suit and cause prejudice to the defendant hence sought for its rejection. 3. The Court below having considered the pleadings of the parties and noticing that the Will propounded by the applicant was executed by Govind Rao, uncle of the plaintiff on 02.12.1968 and there being no mention about the date of death of the testator of the Will, held the relief for declaration of title in terms of the Will, was time barred since the Limitation Act, 1963 provided for declaration within 3 years, to conclude that the amendment cannot be permitted to introduce a time barred claim and accordingly rejected the I.A. by the order impugned. 4. It is useful to notice the observations of the Apex Court in Pankaja Vs. 4. It is useful to notice the observations of the Apex Court in Pankaja Vs. Yellappa, (2004) 6 SCC 415 wherein it is observed that if an amendment sub-serves the ultimate cause of justice and avoids further litigation, it has to be allowed and if facts and circumstances warrant, the amendment has to be allowed even if it is time barred. 5. Similar, though not identical circumstances, led to observations of the Apex Court in L.C. Hanumanthappa vs. H.B. Shivakumar, (2016) 1 SCC 332 in the matter of applicability of doctrine of relation back, in the facts of that case it was held that the said doctrine was not applicable since the Court which allowed the amendment expressly allowed subject to plea of limitation. 6. Regard being had to the pleadings of the parties and the reliefs in the suit, undoubtedly touch upon the title to immovable property as claimed by the plaintiff and denied by the defendant. Keeping in mind the dates i.e., 10.10.2011 the date of institution of the suit; 02.12.2011 the filing of the written statement denying the title of the plaintiff and 25.07.2014 the filing of I.A. No. IX for amendment i.e., well within three years of the institution of the suit and the written statement, petitioner - plaintiff satisfied the two relevant conditions for allowing the amendment, namely, (a) of not working injustice to the other side (b) of being necessary for the parties for determining the real question in controversy between the parties. 7. In the first place, if the amendment is allowed, it will relate back to the date of the plaint and is permissible, more so, since the application is filed within a period of 3 years from the date of the institution of the suit as well as the written statement denying the title of the plaintiff to the suit schedule property. It is for the defendant to advance a plea that such a relief is time barred, by filing an additional written statement and therefore allowing the amendment does not cause serious prejudice to the defendant. 8. In the circumstances, the Court below was not justified in rejecting LA. No. IX under Order VI, Rule 17 CPC to amend the plaint for the relief of a declaration of title to immovable property on the basis of the will propounded by the applicant. 8. In the circumstances, the Court below was not justified in rejecting LA. No. IX under Order VI, Rule 17 CPC to amend the plaint for the relief of a declaration of title to immovable property on the basis of the will propounded by the applicant. The order impugned has occasioned grave injustice to the petitioner calling for interference in exercise of supervisory jurisdiction under Article 227 of the Constitution. In the result, this petition is allowed. The order impugned is set aside I.A. No. IX is allowed. Petitioner to file amended plaint and the defendants are permitted to file additional written statement.