RAKESH Vs. SAMPANGIRAMAIAH

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 16.06.2014 passed in O.S. No. 18/2000 impugned at Annexure -G to the petition.

(2.) THE petitioner herein is the plaintiff in O.S. No. 18/2000. He is the minor son of the respondent who is the defendant to the said suit. The suit in question is instituted seeking for partition and separate possession of the share of the plaintiff in the suit schedule properties. The mother of the petitioner/plaintiff has prosecuted the proceedings on his behalf. The suit in O.S. No. 18/2000 was considered and a preliminary decree was passed on 09.02.2005. When a final decree proceedings pursuant to the same was instituted by the petitioner and when a Commissioner was appointed for identifying the property for the purpose of marking the demarcation, it was noticed that the respondent was in possession of another extent of 25 guntas in Sy. No. 34/3 carved out of the total extent of 2 acres 20 guntas in Bannerghatta village, Jigani Hobli, Anekal Taluk, Bangalore District. Further, certain errors with regard to the dimension of the property which was already included in the suit was noticed and it is in that view, the petitioner had filed the application in the disposed of suit on 09.02.2013 seeking inclusion of the said property and correction to the preliminary decree. The said application has been rejected by the Court below.

(3.) IF that aspect of the matter is kept in view though the suit in O.S. No. 18/2000 was disposed of granting the preliminary decree on 09.02.2005, as on the said date the said extent of 25 guntas which is sought to be included was not available with Sri Ramaiah, S/o Narayanappa i.e., the father of the plaintiff. The said situation would indicate that subsequently the judgment and decree in O.S. No. 617/2006 was passed on 01.02.2011 and therefore, the right to seek inclusion of the said 25 guntas has arisen only after the said date. If this aspect is kept in view, the application which was made subsequently on 09.02.2013 would indicate that there was sufficient explanation for making the application on 09.02.2013 which cannot be considered as if the petitioner herein had slept over the matter and had thereafter made the application.