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2015 Supreme(AP) 793

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
B. Sreenivasulu - Petitioner
Vs.
B. Kusuma Kumari and other - Respondents
C.R.P.No. 3838 of 2015
Decided On : 16.11.2015

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Karri Murali Krishna, Counsel.
For the Respondent Nos. 1 to 3: Mr. K. Narsi Reddy, Counsel.

Headnote:

Civil Revision Act – Petition is filed by petitioner challenging the order and decree on file of the IV Additional District Judge – Petitioner herein is the first defendant and the respondents No.1 to 3 herein are plaintiffs on file of IV Additional District Judge suit filed is for partition of plaint schedule properties into 5 equal shares and allot 1/5th share to each of three plaintiffs and similar share to the defendants No.2 and 3 representing their fathers share schedule properties are described vividly – Defendant filed separate written statement and defendants filed separate written statements respectively, where the suit is under contest was filed after serving notice to the defendants and the same was also taken on oath by order of the Court dated and exhibited 5 documents certified copy of registered partition deed dated certified copy of two registered sale deeds of respectively Encumbrance Certificate for the period from 1422 for survey – Held, Undisputedly the trial is at end of both suits clubbed together and the plaint schedule boundaries are disputing by the defendants of the suit in the specific performance suit and same is there also in the evidence on plaintiffs side of where the suit in clubbed with for joint trial and the defendants in let in evidence as D.Ws 1 and 2 and also on their side D.Ws 3, 4 and 5 examined and the plaintiff in O.S. No. 585 of 2007 as D.W-1 in the chief examination not explained the same. It is no doubt, the contention of the revision petitioner who is the plaintiff in O.S. No. 585 of 2007 in seeking amendment of the two of the boundaries to the plaint schedule supra is that it could not be noticed even at that stage and it is only in the cross-examination page No.36, para No. 2 it was elicited and in page 26, Para No. 3 of the written statement of the defendants in O.S. No. 585 of 2007, the defendants did not even dispute the boundaries. It is in fact, the proposed amendment sought for is not for Eastern and Western boundaries, but for North to change as South and South to change as North and not even to introduce any new names, but for saying the mistake occurred by inadvertence and unnoticed. It is no doubt true in the so called agreement for sale of which the suit for specific performance of O.S. No. 585 of 2007 maintained, the sale agreement does not contain boundaries and it is only in the plaint it is specified as part of admeasuring within the four boundaries and now sought for amendment of the boundary name mentioned as North as South and South as North there is nothing to show what grave prejudice being caused to the defendants in O.S. No.585 of 2007 or plaintiffs in O.S. No. 417 of 2007 when they are disputing the very contract for sale of and its enforceability and not even admitting of sale is only within the boundaries and by change of the Northern to Southern and Southern to Northern, it is inconsistent to the stand already taken in the plaint pleadings or causes thereby any grave prejudice to the opposite party – Civil Revision Petition is disposed.

ORDER :

B. Siva Sankara Rao, J.

This Civil Revision Petition is filed by the petitioner challenging the order and decree in I.A. No. 893 of 2015 in O.S.No.36 of 2010 dated 10.08.2015 on the file of the IV Additional District Judge, Kadapa.

2. The petitioner herein is the first defendant and the respondents No.1 to 3 herein are plaintiffs in O.S.No. 36 of 2010 on the file of IV Additional District Judge, Kadapa. The suit filed is for partition of plaint A,B,C,D and E schedule properties into 5 equal shares and allot 1/5th share to each of three plaintiffs and similar 1/5th share to the defendants No.2 and 3 representing their father's share. The plaint A, B, C, D and E schedule properties are described vividly.

3. The 1st defendant filed separate written statement and defendants No. 2 to 4 filed separate written statements respectively, where the suit is under contest. The chief affidavit of 1st plaintiff as PW. 1 was filed on 10.2.2015 after serving notice to the defendants and the same was also taken on oath by order of the Court dated 10.02.2015 and exhibited 5 documents viz certified copy of registered partition deed dated 31.10.2007, certified copy of two registered sale deeds of 1973 and 1970 respectively, Encumbrance Certificate for the period from 1983 to 2007 and Pahani copies of fasli 1422 for survey Nos. 31/A and 28/B2 of Khajipet Mandal under Meeseva respectively, and PW.1 was cross examined on 04.06.2015.

4. While so, the plaintiffs filed petition in July 2015 under Order 6, Rule 17 read with 151 Civil Procedure Code to amend the plaint schedules as follows:

".Recently I was examined as PW.1 in the matter. In fact the present suit is instituted on 07.11.2008 at Kurnool on the file of District Court wherein it was numbered as O.S.No. 51 of 2008. Later on, it was withdrawn on it and transferred to this Hon'ble Court, wherein it was renumbered as O.S.No. 36 of 2010. While preparing the plaint by my previous advocates they disclosed property in (1) A-Schedule property at measuring Ac 0.12 cents by giving door number 3/1290 and disclosing both old and new subdivisions Survey numbers and also disclosed ward number and extent covered by open site and house, but unfortunately the boundary which relates to western side disclosed as the remaining property of B.V. Venkataramana. The remaining boundaries which disclosed in the plaint schedule is intact and available on the ground and the extent correctly disclosed. Mistake the western boundary disclosed as remaining extent as if it is available. Thus there was a mistake crept by mistake, hence it made us to file this application seeking amendment.

4. So far as II-Schedule it is disclosed that an extent of Ac 0.10 cents. In fact the remaining part of the entire property which disclosed in the plaint schedule are intact available on the ground. It is well settled law boundaries will prevail over the extent. Here in the present case on hand the family has got Ac 0.15 cents in plot No.39 but where as it is disclosed as Ac 0.10 cents. In view of it to avoid unnecessary cloud in the matter now permit us to disclose the entire extent of Ac 0.15 cents by deleting Ac 0.10 cents. It will not cause any prejudice to the respondents, because it was already disclosed by boundaries.

5. (IV) D Schedule in fact for D schedule property the plot No.68 and 69 are disclosed in the plaint schedule as well as survey numbers and other important particulars, but whereas it has to be disclosed as Ac 0.09 cents 440 Sq.Yards but it was wrongly noted. But correct boundaries are disclosed in the plaint schedule. It is well known principle of law that if the property is disclosed within the boundaries, the boundaries will prevail over the extent. Hence to avoid inconvenience to both the parties now we request to delete the extent which disclosed in the D schedule and insert in place an extent of Ac 0.09 cents 440 Sq Yards.

6. So far as item number of Schedule wherein an error was crept in the schedule regarding the





























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