SUSHEELAMMA Vs. YALAGAMMA

JUDGEMENT

(1.) The plaintiff filed the present writ petition against the order dated 31.07.2015 made in O.S.No.56/2009 on the file of the Prl. Civil Judge and JMFC, Hosakote, dismissing I.A.No.7 filed under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure.

(2.) The plaintiff filed suit for partition and separate possession and allotment of 1/6th share in respect of the properties morefully described in the schedule to the plaint contending that the suit schedule properties are the joint family properties of plaintiff and defendants 1 to 7. There was no partition in the joint family.Therefore, the plaintiff filed suit for partition and separate possession. The defendants 1 to 8 have not filed the written statement. Defendant No.9 filed written statement, denied the plaint averments and contended that out of the land bearing Sy.No.47 measuring 3 acres 8 guntas including 2 guntas of karab, a portion measuring 1 acre 23 guntas situated at Muthagadahalli, Sulibele Hobli, Hosakote Taluk, Bengaluru, was subject matter of registered sale deed dated 10.11.1952 executed by Byrappa, S/o Bachappa, in favour of Muniramaiah, S/o Nanjappa. Accordingly, Muniramaiah acquired absolute right, title, interest and possession. The sale deed was executed by Byrappa as Kartha of the family for the legal necessity and benefit of his family. Since Muniramaiah had no issues, after his death, his brother Byrappa inherited to the property by survivorship. Defendant No.9, being the only son, inherited to the property after the death of Byrappa and is in possession of 1 acre 23 guntas and therefore, sought for dismissal of the suit in respect of item No.4 of the suit schedule property.

(3.) Even before framing of issues, on 27.06.2013, the plaintiff filed an application under Order VI Rule 17 of Code of Civil Procedure r/w Section 151 of Code of Civil Procedure to insert paragraph 9(a) after para-9 and to insert additional prayer b(a), narrating the facts with regard to alleged sale deed dated 10.11.1952 and to declare that the alleged sale deed dated 10.11.1952 as forged and sham document, contending that, recently the 9th defendant filed written statement and took up the plea that his father Byrappa, Son of Bachappa had executed a sale deed dated 10.11.1952 in favour of one Muniramaiah, S/o Nanjappa. Thereby 9th defendant claimed his right. Therefore, the application came to be filed for amendment. The application was resisted by the 9th defendant alone, reiterating the averments made in the written statement and sought to dismiss the application.