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2021 DIGILAW 1019 (KAR)

MAHADEVAMMA v. B. M. MAHADEVASWAMY

2021-12-20

K.S.MUDAGAL

body2021
JUDGMENT : K.S. Mudagal, J. 1. Aggrieved by the order of the Trial Court deleting issue No. 2 in O.S.No. 4013/2004, defendant No. 2 has preferred the above petition. 2. Respondent filed O.S.No. 4013/2004 against the petitioner and her husband (defendant No. 1) Narayana seeking declaration that he is the lawful owner of the suit schedule property and to put him back in peaceful possession of the said property and to restrain defendants or anybody claiming them from interfering with his peaceful possession of the suit schedule property and etc. 3. The subject matter of the suit was site bearing No. 58, Old No. 52/58, measuring 40 X 30 feet, Malagalu, Panchasheelanagar, Nagarabhavi Post, Bengaluru and house constructed thereon. 4. The plaintiff's case in brief was as follows: The suit property was allotted to him in 1974 by the Government under a scheme meant for siteless and houseless persons of the Weaker Sec. of the Society. Since then all along he was residing in the suit property till 25/12/2003. The defendants without any manner of right tried to trespass into the suit property. Therefore, he approached Vijayanagar Police on 25/12/2003. The defendants agreed to produce title documents before the Police. But instead of doing that, on 26/12/2003 they unlawfully dispossessed him. Thus, he sought decree for declaration of his title and redelivery of possession. 5. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Trial Court. 6. Defendant No. 2 is the full sister of the plaintiff, defendant No. 1 is the husband of defendant No. 2. For the reasons best known to the plaintiff, he did not disclose the relationship in the plaint, until defendant No. 2 disclosed the same in her written statement. 7. Initially, the suit was decreed ex-parte against the defendants. Later, on the petition of defendant No. 2 in Misc. Petition No. 100/2012, the exparte decree was set aside and matter was restored. Thereafter, she filed the written statement. 8. The gist of the written statement of defendant No. 2 is as follows: That the suit property was allotted to her by the Government in 1974. One Basavaraj attempted to trespass into her property. Since defendant No. 2 and her husband were illiterate and plaintiff was an Educated person working as an officer in LIC, they sought his help in the matter. One Basavaraj attempted to trespass into her property. Since defendant No. 2 and her husband were illiterate and plaintiff was an Educated person working as an officer in LIC, they sought his help in the matter. The plaintiff taking advantage of their illiteracy and helplessness, tampered the name in the grant certificate from Mahadevamma to Mahadevaswamy to gulp the property. On that basis, he created further documents. The plaintiff was not at all in possession of the suit property. Therefore, the question of dispossessing him does not arise. Thus, she sought for dismissal of the suit. 9. On the basis of such pleadings, the Trial Court framed the following issues: ISSUES "1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property? 2. Whether the plaintiff further proves that he is in lawful possession of the suit property? 3. Whether the defendants prove that plaintiff has fabricated and forged the Hakku Patra? 4. Whether the defendants further prove that government has granted Hakku Patra in her favour and she is in possession of the property? 5. Whether plaintiff is entitled for the reliefs sought? 6. What order or decree?" 10. On 26/6/2016, the parties adduced evidence. Even the arguments were addressed by the parties. During the course of the arguments, the plaintiff filed I.A.No. 8 under Order XIV Rule 5 of CPC to delete issue No. 2. The only reason assigned in para 3 of the affidavit for deleting the said issue as stated is that there is no pleadings constituting issue No. 2 and therefore, the said issue is redundant and irrelevant. 11. Defendant No. 2 opposed the application on the ground that the application was highly belated one. She further contended that claim of the plaintiff for possession was based on his previous possession. Therefore, only the issue has to be amended to the effect "Whether the plaintiff was in lawful possession as on 26/12/2003?". It was contended that the plaintiff has to show his cause of action. 12. On hearing the parties, the Trial Court by the impugned order allowed the application and deleted the issue on the ground that the suit of the plaintiff is not based on previous possession, but he has sought declaration of title. It was contended that the plaintiff has to show his cause of action. 12. On hearing the parties, the Trial Court by the impugned order allowed the application and deleted the issue on the ground that the suit of the plaintiff is not based on previous possession, but he has sought declaration of title. The Trial Court further held that since in the plaint there was no averment of the plaintiff being in lawful possession of the suit schedule property, proving his dispossession as claimed by him does not arise. 13. Learned counsel for the petitioner/defendant No. 2 seeks quashing of the said order on the following grounds: (i) The claim of defendant No. 2 all along is that she was the grant holder and in possession of the property all along; (ii) The plaintiff forged the grant certificate in his favour by altering the name; (iii) To claim a relief in a suit, the plaintiff has to show the cause of action. According to him, cause of action arose on 26/12/2003, when the defendants allegedly dispossessed him. Therefore, the question of dispossession is a material issue. Accordingly, issue No. 2 should have been amended. 14. Sri.B.N.Puttalingaiah, learned counsel for the respondent/plaintiff justifies the impugned order on the ground that the suit was for declaration based on the title and not on the previous possession. He further claims that since the plaintiff did not claim that he was in possession as on the date of the suit. The question of framing issue with regard to plaintiff's lawful possession does not arise. Therefore, Trial Court rightly deleted the same. 15. Order XIV Rule 1(1) and (2) of Civil Procedure Code which deal with the Framing of issues is material for consideration of the rival contentions, which read as follows: "1. Framing of issues: (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence............." 16. The reading of the above provision makes it clear that issues arise on a material proposition of the fact or law alleged by one party and denied by the other party. The reading of the above provision makes it clear that issues arise on a material proposition of the fact or law alleged by one party and denied by the other party. The material propositions are those propositions, which plaintiff alleged to show a right to sue, that means cause of action and defendant denied or alleged to constitute his or her defence. 17. Order XIV Rule 5, which deals with the power of the Court to amend or strike out the issues reads as follows: 5. Power to amend and strike out issues: (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. 18. The reading of the above provisions goes to show that the Court can amend the issues as may be necessary for determining the matters in controversy between the parties or delete that if wrongly framed. 19. The material proposition of the facts alleged by the plaintiff was that he was the owner in possession of the suit property all along by virtue of the grant certificate set up by him. On the other hand, the claim of defendant No. 2 was that grant certificate was in her favour and all along she was in possession. The plaintiff claimed that defendants dispossessed him on 26/12/2003. Therefore, he sought redelivery of the possession. Defendant No. 2 claimed that since she was in possession of the property, the question of dispossessing the plaintiff does not arise and that is a false claim set up only to show the cause of action. 20. Though the plaintiff did not quote Sec. 6 of the Specific Relief Act in the plaint, in substance his suit was based on Sec. 6 of the Specific Relief Act. Under such circumstances, the plaintiff was required to establish his past possession and he was required to prove his cause of action. For that purpose, issue No. 2 ought to have been amended as claimed by defendant No. 2 in her statement of objection. 21. Under such circumstances, the plaintiff was required to establish his past possession and he was required to prove his cause of action. For that purpose, issue No. 2 ought to have been amended as claimed by defendant No. 2 in her statement of objection. 21. The Trial Court without noticing the intricacies of the case and without reference to Order XIV Rule 1(1) and (2) and Rule 5, proceeded to hold that the suit was not based on previous possession, it was a suit for declaration of title and possession simpliciter, which is apparently incorrect. Therefore, the petition is allowed. The impugned order of the Trial Court is set aside. Issue No. 2 is amended as follows: "Whether the plaintiff further proves that he was in lawful possession of the suit property as on 26/12/2003?" 22. I.A. No. 8 filed by the plaintiff is disposed of accordingly. The Trial Court should give opportunity to both the parties to lead additional evidence, if any, on the amended issue and dispose of the suit as expeditiously as possible.