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2020 DIGILAW 364 (KAR)

Annapurna W/o Mallikarjun Sankeshwar v. Dundawwa W/o Shivappagouda @ Basanagouda Patil

2020-02-06

S.G.PANDIT

body2020
ORDER : 1. The petitioners/defendants No.1 and 2 in O.S.No.47/2008 are before this Court assailing the order dated 16.09.2016 on I.A.No.31 in O.S.No.47/2008 on the file of the Senior Civil Judge and JMFC, Mudhol. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent No.1. 3. The learned counsel for the petitioners submits that the suit is for partition and separate possession. When the suit was at the stage of defendants’ evidence, the petitioners/defendants No.1 and 2 filed application under Order 6 Rule 17 of CPC to amend the written statement. The learned counsel for the petitioners submits that in sum and substance the amendment sought is to the effect that if the Court comes to the conclusion that the property in R.S.No.25 has not fallen to the share of the plaintiff in the prior partition, then the defendants are also entitled for share in R.S.No.25. It is the contention of the petitioners/defendants No.1 and 2 that there was prior partition and in the prior partition, R.S.No.25 had fallen to the share of the plaintiff. The trial court erroneously dismissed the amendment application only on he ground that the application is filed belatedly. The learned counsel further submits that in a suit for partition at any stage of the suit or even at the stage of final decree proceedings, the properties which are liable for partition could be included. Thus, he prays for allowing the writ petition. 4. Per contra, the learned counsel for the respondent No.1 would submit that the petitioners have taken a specific stand that there was prior partition and in such partition R.S.No.25 had fallen to the share of the plaintiff and now they cannot turn around and take contrary stand. Hence, he submits that the trial Court has rightly rejected the application. Moreover, he submits that the application is filed belatedly when the suit was at the stage of defendants’ evidence. No explanation is forthcoming for delay in presenting the amendment application. Therefore he prays for dismissal of the writ petition. 5. The suit is one for partition and separate possession. In a suit for partition, the properties could be included at any stage of the proceedings. It is settled law that in a suit for partition all properties which are partable are to be included. Therefore he prays for dismissal of the writ petition. 5. The suit is one for partition and separate possession. In a suit for partition, the properties could be included at any stage of the proceedings. It is settled law that in a suit for partition all properties which are partable are to be included. In the instant case, the defendants No.1 and 2/petitioners herein had filed written statement taking contention that there was prior partition and in the prior partition, the properties in R.S.No.25/1 and 25/2 were fallen to the share of the plaintiff. But by filing amendment application, the defendants are seeking amendment to the effect that if the Court comes to the conclusion that there was no prior partition, then the defendants are also entitled for share in R.S.No.25, which in the facts and circumstances of the case is not a contrary stand as stated by the plaintiff/respondent No.1 herein. Whether it is joint family property or whether it is the property of the plaintiff is to be proved in the suit. As such no prejudice would be caused to the plaintiff if the amendment is allowed. Moreover, it would avoid multiplicity of proceedings. As stated above, in a partition suit all the partabale properties are to be included. Hence, I deem it appropriate to allow the writ petition and permit the petitioners/defendants No.1 and 2 to amend the written statement as sought in I.A.No.31. 6. Accordingly, the writ petition is allowed. 7. With the co-operation of the parties to the suit, the trial Court to dispose of the suit expeditiously.