SHIVAPPA Vs. KERIYAMMA

JUDGEMENT

(1.) this is defendants second appeal arising out of the judgment and decree dated 17-11-1987 delivered by the civil judge, sagar, in regular appeal No. 40 of 1983 whereby the first appellate court, namely the civil judge, sagar, set aside the judgment and decree dated 30-7-1983 passed by the principal munsiff, sagar, in o.s. No. 209 of 1981 whereby the munsiff had dismissed the plaintiffs suit. The first appellate court decreed the plaintiffs suit holding that the plaintiff is entitled to 1/3rd share in the suit properties and for partition being effected by metes and bounds and for delivery of separate possession of her share. The first appellate court further directed that as regards mesne profits, an enquiry shall be made by the trial court in respect of the 1/3rd share of the plaintiff from the date of suit till the date of delivery of possession.

(2.) the facts of the case in brief are that the plaintiff/respondent Smt. Keriyamma filed a suit claiming the following reliefs :

(3.) Sri S.R.Hegde hudlamane, learned counsel for the appellants, raised the following contentions : the learned counsel for the appellant Sri Hegde first submitted that once the application for amendment had been allowed allowing the plaintiff to add further relief as 2 (a) in the plaint, the first appellate court should have granted the first defendant an opportunity for filing additional written statement and in support of this contention he made a reference to the decision of the Supreme Court in the case of Tharayil Sarada and Another v. Govindan and Another Mr. Hegde further submitted that had defendant 1 been allowed to file additional written statement, he would have taken a further plea to the effect that the properties were ancestral properties and as an opportunity was not given to him to take that plea by amending the written statement, the first appellate court erred in decreeing the suit for 1/3 share and for partition. Lastly, Mr. Hegde submitted that when the plaint was filed, certified copy of the record of rights should have been filed and Section 132 of the Karnataka land revenue ACT provides that if certified copy of the record of rights is not filed the plaint shall be rejected. Therefore, when it has not been filed, the suit was not maintainable and was liable to be dismissed. The decree passed by the first appellate court, therefore, suffers from illegality.