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2018 DIGILAW 1219 (KAR)

Ramanaika v. Radhamani G.

2018-12-17

S.G.PANDIT

body2018
ORDER : S.G. Pandit, J. - The petitioners are before this Court under Article 227 of Constitution of India assailing the order dated 06.06.2014 by which I.A. No.14 filed under Order 6, Rule 17 read with section 151 of CPC is rejected in O.S.21/2005 on the file of Civil Judge and JMFC, Yelandur, Chamarajanagar District. 2. The petitioners are plaintiffs and respondent is defendant No. 2 in O.S.No.21/2005 filed for permanent injunction and for declaration that the sale deed dated 03.06.2005 is void ab initio. It is the averment in the plaint that the plaintiffs-father was a tenant in respect of the suit schedule property. After the death of the plaintiffs-father, plaintiffs continued as tenants to the suit schedule property. On appearance of the defendants, the defendant No. 2 filed written statement and also counterclaim to declare that the 2nd defendant is the absolute owner in possession and enjoyment of the northern portion of 121/2 guntas of land out of the total extent of suit schedule property, on the basis of registered sale deed dated 03.06.2005. The petitioner No. 4 who is the LR of Ramanaika filed his affidavit evidence and marked documents on their behalf. At that stage, petitioners/plaintiffs filed application under Order 6, Rule 17 read with section 151 of CPC to amend his written statement filed to counterclaim filed by the 2nd defendant, to contend that it is within the knowledge of 2nd defendant that the plaintiff is in adverse possession of the suit schedule property and he has perfected his title by adverse possession. The said application was opposed by 2nd defendant by filing objections. The trial Court by impugned order rejected the application filed by the petitioners/plaintiffs under Order 6, Rule 17, CPC to amend the written statement filed to counter claim of 2nd defendant, which order is impugned in this writ petition. 3. Heard the learned counsel for the petitioners and learned counsel for respondent. Perused the writ papers. 4. Learned counsel for the petitioners submits that subsequent to filing of affidavit evidence of PW1, the 2nd defendant got impleaded and filed written statement along with counter claim to declare that she is the owner of suit schedule property. 3. Heard the learned counsel for the petitioners and learned counsel for respondent. Perused the writ papers. 4. Learned counsel for the petitioners submits that subsequent to filing of affidavit evidence of PW1, the 2nd defendant got impleaded and filed written statement along with counter claim to declare that she is the owner of suit schedule property. The plaintiffs filed the written statement to the counterclaim of the 2nd defendant admitting the averment made in para 2 of the plaint stating that original plaintiff is the tenant in the suit schedule property for the last 70 years. Thereafter, the application is filed under Order 6, Rule 17, CPC to amend the written statement to contend that the plaintiffs/petitioners are in adverse possession of the suit schedule property and they have perfected the title by adverse possession. According to the learned counsel for the petitioners, it is open for the plaintiffs to take inconsistent plea in the written statement filed to counterclaim made by 2nd defendant and submits that the trial Court erroneously rejected the application. 5. Per contra, learned counsel for the respondent/defendant submits that, when the plaintiffs/petitioners have filed suit admitting the fact that they are the tenants of the suit schedule property, it is not open for them subsequently to seek amendment to the effect that they are in adverse possession of the suit schedule property and have perfected the title by adverse possession. Further, submits that in the present case, it is not open for the plaintiffs to take inconsistent plea. 6. The suit is one for injunction and to declare that the sale deed dated 03.06.2005 is void ab-initio. The suit averments would make it clear that the plaintiffs have contended that initially their father was tenant and subsequent to the death of their father, plaintiffs continued as tenant in the suit schedule property. On appearance, the 2nd defendant filed written statement and also counterclaim to declare that she is the owner of the property based on sale deed dated 03.06.2005. The petitioners/plaintiff No. 4 filed written statement to the counterclaim filed by the 2nd defendant wherein, he admitted that the original plaintiff is the tenant in the suit schedule property for the last 70 years. Subsequently, by proposed amendment petitioners/plaintiff No. 4 has sought to contend that he is in adverse possession and perfected title by adverse possession. The petitioners/plaintiff No. 4 filed written statement to the counterclaim filed by the 2nd defendant wherein, he admitted that the original plaintiff is the tenant in the suit schedule property for the last 70 years. Subsequently, by proposed amendment petitioners/plaintiff No. 4 has sought to contend that he is in adverse possession and perfected title by adverse possession. In the facts and circumstances of the present case, the plaintiffs could not have sought for the proposed amendment. The plaintiff in the peculiar facts of the case could not have taken inconsistent stand when he is particularly pleaded in his plaint that he is tenant of the suit schedule property. The trial Court by impugned order has rejected the application which, in my opinion, would not require interference by this Court. No grounds are made out to interfere with the order passed by the trial Court to exercise the power under Article 227 of Constitution of India. 7. Accordingly, the writ petition is rejected.