CHOWDAPPA Vs. MUNIVENKATAPPA

JUDGEMENT

(1.) THIS appeal is filed by the defendants challenging the legality and validity of the impugned judgment and decree passed by the first Appellate Court in R. A. No. 44/91 dated 28. 6. 2000 in setting aside the judgment and decree passed by the addl. Munsiff, Kolar in o. S. No. 329/83 dated 20. 4. 1998 and remanding back the matter to the Trial Court to permit the plaintiff to carry out the amendment as sought for in I. A. No. 4 along with the observations made in the impugned judgment and decree urging various legal contentions. The rank of the parties in, this Judgment is referred as has been described in the original suit proceedings in the Trial Court for the sake of convenience.

(2.) CERTAIN brief facts which are necessary for considering therival contentions urged by the learned Counsel appearing on behalf of the parties are stated as hereunder:-The plaintiff filed original suit praying for grant of bare permanent injunction restraining the defendants from interferring with his alleged adverse possession in respect of the suit schedule property contending that he has been in exclusive possession and enjoyment of the suit schedule property by paying kandayam to the date of institution of the suit i. e. on 4. 11. 1983. The defendant filed a detailed written statement on 7. 4. 1984 traversing the plaint averments and denying the right of the plaintiff. It is further stated at Paragraph (9)that the land bearing Sy. No. 97/1 of Thondala village measuring 4-17guntas originally belonged to one Venkatappa; that he had two wives, first being Chowdamma and the 2nd being Akkeyyamma; that he died living behind two sons and daughter namely Munivenkatappa, the plaintiff, Bychappa, who is the father of the defendants; that bychappa has two wives, the first wife being Chowdamma who is no more and the 2nd wife being Narayanamma who is also no more and they are the sons of Bychappa through his second wife; that dodda Venkatappa and Chicka Venkatappa are also the sons of bychappa through his first wife Chowdamma; that the said munivenkatappa, the deceased plaintiff, divided from the joint family long back i. e. in the year 1945 itself and lived separately from the joint family; that on 25. 7. 1955 the plaintiff relinquished all his rights in Sy. No. 97/1 including the suit schedule property and other properties by taking Rs. 400a and executing a registered release deed; that the deceased plaintiff has no manner of right, title and interest or possession whatsoever to the suit schedule property and all other properties belonging to the family and that they are the owners in possession and enjoyment of the suit schedule property and accordingly, they prayed for dismissal of the suit. The Trial Court after considering the evidence on record has recorded a finding that the plaintiff is not in possession of the suit schedule property and has accordingly, dismissed the suit. Being aggrieved by the said judgment and decree, deceased plaintiff filed R. A. No. 44/91 under section 96 CPC urging various legal contentions. The appeal was filed on 3. 7. 1991. During the pendency of the appeal, an application for amendment of the plaint under Order 6 Rule 17 CPC was filed by the plaintiff on 17. 8. 1995 seeking to permit him to include paragraph 4 (a) after paragraph 4 and before paragraph 5 in the plaint, wherein he has sought to take up a plea that the plaintiff had been in possession and enjoyment of the suit schedule property in his own right, title and interest openly, continuously and notoriously and adversely to the rights of everybody including the defendants for over a period of 12 years, prior to the date of institution of the suit perfecting his title by law of adverse possession and being in lawful possession of the same upto the date of his death and thereafter the legal representative of the deceased plaintiff has inherited the property as adopted son and is in possession and enjoyment of the same as absolute owner of the schedule property so also to amend the prayer column and schedule to the plaint as stated in the said application. The said application was vehemently opposed by the defendants contending that the prayer sought for in the application cannot be granted. The learned appellate Judge after hearing the parties granted the relief as prayed for in I. A. No. 4 by placing reliance upon the judgment of this Court reported in 1975 (2)KLJ 239 wherein it is held that application for amendment can be allowed at any stage and that the suit filed for permanent injunction can be converted into the suit for partition. Further I. A. No. 5 filed under Order 41 Rule 27 CPC seeking permission to adduce additional evidence in support of the case of the plaintiff has been dismissed on the ground that since the proposed amendment as sought for in I. A. No. 4 is allowed, it is necessary for the parties to file additional written statement and as such I. A. No. 5 for adducing additional evidence does not arise for consideration at that stage. Accordingly, the first appellate Court has passed the impugned judgment and decree setting aside the judgment and decree passed by the lower Court and remanding the matter to the lower Court along with the observation made in the operative portion of the impugned judgment and decree.

(3.) THE correctness of the impugned judgment and decree passedby the first appellate Court is challenged in this appeal contending that the amendment sought for in I. A. No. 4 by the plaintiff would amounts to a new and different cause of action as the proposed pleading is not in the nature of amplification of the pleadings as the plaintiff has not pleaded in the original plaint that after the partition and after execution of the release deed dated 25. 7. 1955 the adopted father of the deceased plaintiff was in continuous possession and enjoyment as the owner in possession and enjoyment adversely against the true owner, the defendants therein, and therefore his adopted father the deceased plaintiff had perfected his title and the lr of the deceased plaintiff stepped into the shoes of his adopted father after his death and he has been in possession adversely against the interest and title of the defendants and that under Article 65 to the schedule of the Indian Limitation Act, 1963 the plaintiff has the right to get declared his title by instituting proper suit seeking declaratory relief from the competent Civil Court after 12 years from the period of possession of the plaintiff becomes adverse to the defendants.