MADAN RAO AND ORS. Vs. BASWANTAPPA BHEEMANNA DOGANI

JUDGEMENT

(1.) PETITIONERS ' father instituted O.S. No. 269/2011 on 10.10.2011 before the I Addl. Civil Judge JMFC, Bidar to: - declare as wrong and incorrect the entries in the record of rights of revenue settlement in respect of Sy.No. 2A of Bagh -e -Kheredee village; direct correction/amendment by way of alteration and preparation of hissa survey map of 6 acres instead of 4 acres 30 guntas in lands bearing Sy.No. 2A owned and possessed by the plaintiff and direct cancellation of the entries in the record of rights in respect of Sy.No. 2A and 2AA from the year 2009 -10 of village Bagh -e -Kheredee and other equitable and alternative reliefs.

(2.) IN the plaint it was asserted that one Govindrao s/o Gopalrao the uncle of the plaintiff, since deceased, was pattedar, owner and possessor of land in Sy. No. 2 measuring 9 acres 25 guntas, who joined one Bhimanna, the father of the defendant, as shikimidar in cultivation for convenience. Plaintiff during his boyhood was ignorant about the pattedar's mode of acquisition of the suit land, which was called "Mutt Land" with one well near Mutt building for irrigation. That Govindrao and Bhimanna are said to have jointly cultivated the north western area of the suit land behind and adjacent to Mutt which is approximately ?rd of the area of the suit land, till the year 1353 Fasli (1943 A.D.) the year when the plague epidemic infected Bidar town. The rest of the area was barren waste and fallow land, that is ?rd portion approximately 6 acres with one deserted and dilapidated useless well. He further asserted that at the time of plague epidemic of 1353 Fasli the pattedar Govindrao constructed a pakka tin shed house in the fallow waste land near the mango grove for his family to stay therein, causing suspicion and prejudice in the mind of Bhimanna, the shikimidar thinking it would cause and create complication in the partition and separate cultivation by shikimidar and as the financial condition was not fit for paying construction charges of the house. Hence a partition and separation is said to have taken place when shikimidar was allotted the fertile land measuring 3 acres with workable well near the Mutt building for irrigation and the pattedar Govindrao sympathetically and mercifully allotted the said cultivable land on the condition that the pattedar will have interest in the irrigable well and allotted Mutt area, which will be kept in joint and common for the service of both, while southern portion of the land was that of pattedar, and the shikimidar will have to form a separate path for his use and for the use of devotees and travellers of the Mutt at the expenses of the shikimidar, on the western side, with no right to either party to sell the allotted land or to alienate to any person and in case of default will have right of preemption. Certain disputes having arisen led to the institution of the suit for the reliefs noticed supra.

(3.) DEFENDANT filed written statement on 02.12.2011 denying the allegations in the plaint. It appears that the plaintiff died in or about 2013 -14, whence petitioner came on record as legal heir since right to suit survived and having noticed a Will where under the suit lands were bequeathed in favour of his father filed I.A.IX on 25.07.2014, under Order 6, Rule 17 , CPC to amend the plaint to include the plea of the Will propounded. That application was opposed by filing counter statement denying the claim of Will propounded by the legal representative of the plaintiff and that amendment would change the nature of suit and cause prejudice to the defendant hence sought for its rejection.