Smt. Gangubai and Others vs Subhaschandra and Others

Ram Mohan Reddy, J.—This petition though listed for preliminary hearing, with the consent of learned counsel for the parties, is finally heard and disposed of. The rejection of petitioners'' IA No. 23 under Order VI Rule 17 of CPC Annexure-D in OS No. 168/2008 by order dated 5.10.2013 Annexure-A of the IV Additional Civil Judge & JMFC, Gulbarga, has resulted in this petition under Article 227 of the Constitution of India.

At paragraph-9 of the plaint in OS No. 168/2008 instituted by the petitioners, it was asserted that the petitioners/plaintiffs were in possession of the suit lands since the date of partition between their ancestors for over fifty years without interruption and to the knowledge of the defendants they had become owners of the suit land by way of adverse possession.

At the stage of final arguments in the suit, the plaintiffs filed IA No. 23 to amend the plaint by deleting paragraph-9. That application was opposed by filing statement of objections, inter alia, contending that the application was filed at a belated stage of the proceedings and when the plaintiffs become aware that they would not succeed on the plea of adverse possession. In addition, it was stated that in OS No. 208/1988 between the parties, the claim of adverse possession was dismissed and having once again asserted the plea of adverse possession cannot be permitted to amend the plaint by deleting paragraph-9 and that if such amendment is permitted, it would amount to "allowing time barred claim" and amounts to change of cause of action and also changes the nature of the suit.

The trial court in a very elaborate order having noticed pleadings of the parties and making reference to several reported opinions of this court and that of the Supreme Court, declined to permit the amendment of the plaint by striking out paragraph-9.

Having heard learned counsel for the parties, perused the pleadings and examined the order impugned, indisputedly, OS No. 168/2008 filed by the petitioners for a declaration that they are owners and possessors of the suit land and to declare the sale deed executed by Defendant No. 13 in favour of Defendant Nos. 14, 15 and 16 as void and not binding on the plaintiffs and for a decree of injunction restraining the defendants from alienating the suit schedule property or creating any charge thereon.

In the plaint, at paragraph-9, it was averred, in the alternative, that the plaintiffs had become owners of the suit land by way of adverse possession.

Having regard to the fact that no issue was framed on the plaintiffs'' alternative plea of adverse possession, coupled with the fact that the plaintiffs having sought to withdraw from the claim of adverse possession in the suit, the objection to the amendment of the plaint, noticed supra, was unavailable. Withdrawing a pleading in the plaint more appropriately that of adverse possession did neither cause injustice to the defendants nor change the nature of the suit and therefore the trial court was not justified in declining the relief in IA No. 23. Reasons and findings assigned by the trial court in the order impugned are unacceptable and are perverse.

In the result, this petition is allowed. The order dated 5.10.2013 of the trial court is rejected. IA No. 23 is allowed. Petitioners are permitted to amend the plaint in OS No. 168/2008 by deleting paragraph-9.