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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
S. SUJATHA, MOHAMMAD NAWAZ, JJ.
Siddanagouda Natural S/o Nanagouda Patil Adopted Son of Siddangouda Patil & Ors. - Appellants
Vs.
Smt Kashibai @ Kantamma W/o Siddangouda Patil & Ors. - Respondents
Regular first appeal no. 5040 of 2010
Decided On : 18-01-2019
Constitution Of India,1950 -Civil Procedure Code, 1908 - Order 6 - Rule 17 - Limitation Act, 1963 - Section 58 - Indian Evidence Act - Section,110 - Claim of plaintiff - Claim a declaration - Plaintiff has filed suit relief of declaration that she is owner of suit properties and for consequential relief of direction to defendants to deliver possession of suit properties to plaintiff suit was originally filed for relief of permanent injunction alternatively declaration and consequential relief of possession was sought for- On memo filed by plaintiff restricting her alternative prayer of declaration and possession and giving up her prayer for injunction same was allowed and accordingly amendment in plaint was carried out by deleting prayer of permanent injunction –Held, Court while allowing application for amendment left it open to different defendants to submit written statement to amended plaint but in present case it is giving up or not pressing main relief and restricting to other alternative prayer sought for- Hence said judgment is not applicable in present context - Court while considering compromise between parties and mutation effected on ground of compromise dealt with scope of family arrangement and that High Court erred in entertaining appeal when matter is already settled in accordance with family arrangement- However in present set no such family arrangement/compromise between parties is pleaded nor adjudicated entire case of defendant rests on relinquishment said to have been made in his favour but same not having proved said judgment would not come to assistance of defendants - Plaintiff by way of an amendment to plaint after period of limitation- A new relief sought by way of an amendment introducing completely new cause of action based on fresh facts was be time barred- As discussed aforesaid no such new relief is claimed based on fresh facts by plaintiff herein Court while considering statement made by counsel of a party across bar whether could be treated as admission of party having regard to requirements held that on facts of that case statement of counsel conceding ground of eviction and seeking some time for respondent to vacate premises cannot be termed a compromise and such statement of counsel cannot be accepted as admission relating to eviction of respondent-tenant therein from suit premises Clause [d] of Section Delhi Rent Control Act - Hence said judgment is also not applicable in present situation –Order accordingly
JUDGMENT :
Defendant Nos.3 to 49 are in appeal challenging the judgment and decree passed by the Court of Senior Civil Judge at Basavanabagewadi ['Trial Court' for short] in O.S.No.95/2004 dated 08.10.2010.
2. For the sake of convenience, parties are referred to as per their status before the Trial Court.
3. Facts of the case: The plaintiff has filed the suit in O.S.No.95/2004 for the relief of declaration that she is the owner of the suit properties and for consequential relief of direction to the defendants to deliver possession of the suit properties to the plaintiff. The suit was originally filed for the relief of permanent injunction, alternatively declaration and consequential relief of possession was sought for. On the memo filed by the plaintiff, restricting her alternative prayer of declaration and possession and giving up her prayer for injunction, the same was allowed and accordingly the amendment in the plaint was carried out by deleting the prayer of permanent injunction.
4. The suit was filed originally against the defendant Nos.1 to 3. Defendant Nos.4 to 49 were impleaded as parties to the suit during the pendency of the suit proceedings.
5. The subject matter of the suit is the landed properties in Sy.No.32 measuring 10 acres 18 guntas, Sy.No.206/3 measuring 10 acres 25 guntas, Sy.No.470/A measuring 8 acres 5 guntas and non agricultural properties i.e., open site in VPC No.243 and 93, situated at Bhairawadagi village, Basavanabagevadi Taluk, Bijapur District.
6. The plaint averments are that the plaintiff and defendant No.1 though born to the same parents are not related to each other as they are born to different unrelated family stocks. It was averred that the father of the plaintiff Nanagouda had given defendant No.1 in adoption to his true brother Siddanagouda through his widow Ramawwa on 20.06.1945. By that time, father of the plaintiff had already begotten three daughters Siddamma, Kamalabai and Shivalingamma. Siddamma and Shivalingamma were married long back. Therefore, Kamalabai succeeded to the ancestral properties of Nanagouda inherited from his genitive father. Defendant No.1 succeeded to the properties of his adoptive father Siddanagouda and got severed from the genitive family. After the adoption of Nanagouda, to one Bhimanagouda Patil of Bhairawadagi on 24.06.1945 through his widow Smt. Neelawwa, the plaintiff was born to the said Nanagouda, adopted son of Bhimanagouda Patil, through his wife Neelamma. Thus, the plaintiff and defendants though born to the same parents, are having distinct genealogies, estates and rights.
7. The father of the plaintiff Nanagouda, adopted son of Bhimanagouda Patil died on 16.12.1984 leaving behind plaintiff as his only successor to his estate as her mother predeceased her father, consisting of following properties:
|
| “Agricultural lands |
|
| Area |
| Assessment |
| C.S.No. | Acre Gunta Rs.Ps. | Village |
| 1. 26/2 | 10-18 | 19-23 Bhairawadagi |
| 2. 206/3 | 10-25 | 17-10 Bhairawadagi |
| 3. 470/A | 08-05 | 14-95 Bhairawadagi |
Non Agricultural properties
| Area | Assessment | Village |
| VPC No. | Sq. ft. Rs.Ps. |
|
| 243 |
| Bhairawadagi |
| [Open site] |
|
|
| 93 |
|
|
| [Open site] | 65-00 | Bhairawadagi” |
Though the plaintiff’s father was given in adoption, he continued to live in the house where he was born. The plaintiff and defendant No.1 lived in the same house until she was married, though she was born at Honnalli of Muddebihal Taluk.
8. The defendant No.1 was managing the suit properties on behalf of Nanagouda during his old age and continued to manage the suit properties even after the demise of Nanagouda. The plaintiff had not examined the record of rights of suit properties after the demise of Nanagouda, as defendant No.1 had alway
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