M. BEERAPPA Vs. NARAYANAPPA MAJOR AND ORS.

JUDGEMENT

(1.) Heard Sri. Dhananjay Vidyapati Joshi, learned Counsel appearing for petitioner and Sriyuths V. Vishwanath Shetty, learned Counsel appearing for R1 & R2 (a & b), Praveen H.R., learned Counsel appearing for R3, R5 (b, d & e), Krishna Murthy, learned Counsel appearing for R4 (a to d) & R6, Kempegowda, learned Counsel appearing for R5 (a), Srinivasa, learned Counsel appearing for R7, S.N. Manjunath, learned Counsel appearing for R9, B.K. Chandrashekar, learned Counsel appearing for R1. Notice to respondent Nos. 5(c), 5(f) and 8 have been dispensed with.

(2.) Writ Petitioner is the 2nd defendant in O.S. No. 728/2002, which suit came to be filed by respondent No. 1 and Sri. Munikrishnappa [being arrayed as plaintiff No. 2 since deceased by LRs 2(a) & 2(b)] for partition and separate possession of the suit schedule properties. 2nd defendant appeared, filed his Written Statement as per Annexure -C and has denied the averments made in plaint and it has been specifically contended that on the death of original propositus Sri. Hotteppa, his sons Muniswamappa and Muniyappa had divided the joint family properties orally in the year 1979 and subsequently it was reduced into writing in the year 2002 and said document was also duly registered in the office of the Sub -registrar, Hosakote on 11.03.2002 and as such, the members of the respective branches have been in exclusive possession and enjoyment of the properties allotted to them under the said deed of partition.

(3.) When the matter was pending for trial, suit came to be dismissed for default on 17.01.2011 and a Miscellaneous Petition came to be filed by Plaintiffs in Misc. P. No. 13/2011 and during its pendency plaintiffs' are stated to have submitted before said Court that plaintiffs intend to divide the property allotted to the share of Muniswamappa under partition deed dated 11.03.2002 and as such, they submitted for suit being restored. Accordingly, suit came to be restored on 10.06.2014. Immediately thereafter plaintiffs have filed I.A. No. 5 seeking amendment of the plaint, whereunder they sought for deletion of the properties which was allotted to the share of Sri. Muniyappa or in other words, the properties which did not belong to the branch of Muniswamappa were sought to be deleted from the schedule, contending inter alia that said properties had been included by oversight and mistake. Trial Court by order dated 13.06.2014 allowed the application and permitted the plaintiffs to carry out the amendment and infact, on 17.06.2014, the date which was fixed by the trial Court for amendment being carried out, plaintiff filed amended plaint whereunder they had deleted the properties which had fallen to the share of Muniyappa's branch.