T Mahendar VsMutyamshette

This revision is filed challenging the order dated 11.07.2018 in I.A.No.1147 of 2017 in O.S.No.1893 of 2005 passed by the VII Additional Senior Civil Judge, L.B. Nagar, Ranga Reddy District, whereunder an application filed seeking amendment of plaint including plaint schedule properties was dismissed.

The facts of the case, in brief, are as under:

(a) The petitioner/plaintiff instituted a suit in O.S.No.1893 of 2005 for partition and separate possession in respect of agricultural land described as suit schedule I, II and III properties. The petitioner sought to include para 5(a) in the plaint and include schedules IV to IX after schedule III of the plaint.

In the said application, it is stated that unfortunately the other joint family properties were not included in the plaint schedule. The defendants No.14 to 17, who are the legal heirs of the defendant No.1, have not disclosed the joint family properties in the written statement. At the time of the filing the chief examination affidavit of P.W.1, the petitioner could not get information with regard to the other joint family properties and could not include the same in the chief evidence affidavit.

(b) On 20.12.2016, during cross-examination of D.W.1, the petitioner came to know that there are other joint family properties, which were not disclosed by the defendants. In the proposed amendment para 5(A), the petitioner stated that he had taken the services of one Mr. Balraj, Advocate, who was new to the profession, he could not get proper guidance from the said Advocate for securing information of the other joint family properties to be included in the plaint. The father of the petitioner joined hands with the defendant No.1 and did not cooperate with the petitioner in disclosing the joint family properties. On 20.12.2016, the petitioner received information from nearest relative with regard to the joint family properties and confronted to D.W.1 during his cross-examination seeking details. D.W.1, who is the son of the defendant No.1, had disclosed that the joint family has acquired some more properties.

(c) D.W.1, his two brothers and his mother did not have any source of income except the income derived from the joint family properties. The petitioner came to know that the joint family has purchased two house plots. The joint family constructed house in one plot with joint family funds. The above properties have been purchased nominally in the name of the wife of the defendant No.16 with the joint family funds. The construction was carried with the joint family funds. The said property was sought to be included as schedule IV property. Further, in respect of schedule V to IX, it was stated that all the properties were acquired/developed with the joint family funds.

(d) Counter affidavit has been filed by the defendants No.14 to 17/respondents No.14 to 17 herein stating that there is no joint family relationship between the petitioner/plaintiff and the respondents/defendants. The properties which are sought to be included by way of amendment are neither ancestral properties nor purchased with joint family property as alleged by the plaintiff. As a matter of fact, the said properties are self-acquired property of the persons in whose names the properties are standing.

The Court below, under the impugned order, dismissed the application stating that no scrap of paper was filed by the petitioner to prima facie come to the conclusion that the new properties sought to be included are joint family properties. Moreover, the plaintiff has concluded his evidence and the respondents have filed their affidavit. The suit was filed in the year 2005 and the petitioner is claiming that he received information about the properties form a near relative on 20.12.2016. There is no explanation from the petitioner as to what efforts were put in to gather the details of joint family properties till 2016. It is clear that the petitioner has not made any efforts to gather the details of joint family properties; only because D.W.1 deposed in the cross-examination that there is a bungalow in his name and other properties in the name of his brother, the petitioner filed this petition and the petitioner has failed to establish any ingredient to permit him to amend the schedule of the property under Order VI Rule 7 of the Code of Civil Procedure.

Heard both sides.

It is the case of the petitioner that he secured information from relatives about some more properties acquired by the defendants in the suit. During the cross-examination of D.W.1, he elicited information and he was able to get the details of other joint family properties. Immediately, he filed I.A.No.1147 of 2017.

The point for consideration is whether there is any delay on the part of the petitioner in filing the application for amendment of plaint schedule. The petitioner stated in clear terms that he was able to get the information about new properties during cross-examination of D.W.1. The pleadings were sought to be amended for including the additional properties.

In a partition suit, it will always be the endeavour of the plaintiff to include all the properties to suit. The bonafides of the petitioner cannot be doubted until there is an allegation that the petitioner had knowledge of these additional properties at the time of filing of the suit, which is not the case herein. It is not the case of the respondents that the petitioner had knowledge of the additional properties at the time of the filing of the suit. The observation of the Court below that there is no scrap of paper filed to show that these properties are joint family properties is unwarranted. In the proposed para 5(A), the petitioner stated these properties have been nominally purchased in the name of the wife of the defendant No.16, but, in fact, they have been purchased/constructed with the joint family funds. Further, the joint family purchased various plots and house in the names of joint family members out of joint family funds. In the circumstances, it cannot be said that the petitioner was negligent or attempting to protract the suit proceedings. The Court below while hearing the application for amendment could not have gone into proof with regard to the nature of acquisition.

The Court below was only expected to go by the averments in the affidavit, as the Court is not deciding the nature of the properties — whether it is joint family or self-acquired at the stage of amendment application. Such issue has to be decided in the main suit. The impugned order is set aside and I.A.No.1147 of 2017 is allowed.

For the aforesaid reasons, the civil revision petition is allowed. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.