Rakesh vs Sampangiramaiah

A.S. Bopanna, J.—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.

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.

Having heard the learned counsel for the petitioner, I have perused the order dated 16.06.2014 impugned herein. A perusal of the same would indicate that the Court below has essentially dismissed the application only on the ground that there is delay in filing the application from the date on which the suit was disposed of by granting the preliminary decree. The dates as noticed therein is that the preliminary decree was granted on 09.02.2005 and the application seeking inclusion of the property and the correction thereto was made on 09.02.2013. The explanation as put forth on behalf of the plaintiff to include the additional item of property in the preliminary decree is that the respondent herein i.e., the father of the plaintiff had filed a suit along with his mother in O.S. No. 617/2006. The said suit was filed against one Sri Motilal seeking for declaration and injunction wherein a compromise was entered into between the parties and the defendant therein agreed to put the respondent herein i.e., the plaintiff in the said suit, in possession of an extent of 25 guntas in Sy. No. 34/3 situate at Bannerghatta village, Jigani Hobli which is now sought to be included by the petitioner herein in the suit to the preliminary decree in the suit filed by him in O.S. No. 18/2000 since it is available to the family.

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.

Further in the said suit though the respondent herein was notified, no objection had been filed to the said application. In such circumstance, when the final decree proceedings is still pending and all the properties which belong to the family are to be partitioned, the said 25 guntas of the property has also become available for the purpose of demarcation of the shares and the said property is also to be included. Further the exact extent of description of the property which had been included earlier in the suit also requires to be corrected, so that the appropriate demarcation is made in the final decree proceedings. Hence the Court below was not justified in rejecting the application.

The order dated 16.06.2014 is set aside. Consequently, the application filed by the plaintiff in O.S. No. 18/2000 is allowed. The plaintiff be permitted to carry out the amendment. Accordingly, the amended preliminary decree be drawn. The measurement of the property which was already included in the suit shall be indicated in terms of the schedule indicated in the sale deed dated 08.03.1996 executed in favour of Sri Narayanappa. The extent measuring 25 guntas in Sy. No. 34/3 in Bannerghatta village also be included in the preliminary decree.

In terms of the above, the petitions stand disposed of.