ORDER:

This revision, under Article 227 of the Constitution of India, is preferred challenging the order, dated 13.02.2023, dismissing the petition in I.A.No.16 of 2023 in O.S.No.28 of 2019 on the file of the Court of Senior Civil Judge, Tekkali, filed under Order VI Rule 17 CPC to amend the plaint as follows:

“(i) In the short cause title after Ramulu “(Died)” may be inserted.

(ii) That in the cause of action paragraph – the cause of action also arose on dt.04-01-2017 when the first plaintiff died and 2nd plaintiff succeeded the suit schedule property by virtue of Registered will dt.05.10.2005, continues the cause of action and survives even after the death of the 1st plaintiff on dt.04.01.2017 against the defendants and in favour of the 2nd plaintiff.

(iii) In Para No.III of the plaint after last sentences in sub para (e) following sentence may be inserted – The first plaintiff subsequent t filing of the suit died on dt.04.01.2017 and hence the 2nd plaintiff acquired the title of the plaint schedule property by virtue of Registered Will deed dt.05.10.2005.

(iv) In the Para VII i.e., prayer paragraph after sub- para (a) the following paragraph may be inserted (aa) declare that the plaintiff acquired the title of the plaint schedule property by virtue of registered will dt.05.10.2005 and in possession and enjoyment of the suit schedule property.’

(v) In prayer paragraph (b) before the restraining the word “permanently” may be inserted and after the suit schedule the sentence “by way of perpetual injunction”

may be inserted.”

2. Heard Sri G.Tuhin Kumar, learned counsel for the petitioner/plaintiff. In spite of service of notice, none appeared for the respondents/defendants. The parties shall hereinafter be referred to as arrayed in the interlocutory application before the trial Court.

3. The petitioner/plaintiff filed the suit seeking declaration that the suit schedule property is the self acquired property of the 1st plaintiff having perfected title and in peaceful possession and enjoyment and also for restraining the defendants and their men against ever interfering with the suit schedule (property) and for costs. The suit was resisted by filing written statement of the 1st defendant.

4. Initially, the 1st and 2nd plaintiffs together filed the suits and it is pleaded that the 1st plaintiff executed a registered Will in favour of the 2nd plaintiff in respect of the suit schedule property and that it is the self acquired property of the 1st plaintiff and thus the sons and daughters of the 1st plaintiff have no right or share in the property and it is not the joint family property. After demise of the 1st plaintiff, though the death was reported to the Court, no steps were taken by the surviving 2nd plaintiff to seek amendment. Later, after some time, came up with this petition and stating that the 1st plaintiff and his three sons lived separately since 1976 and the joint family status is disrupted and that the 2nd plaintiff and her parents used to live together under one room separately and further that the suit schedule property was assigned under ‘D’ form patta issued in favour of the 1st plaintiff under D.R.No.563/94, dated 23.05.1995, and further that by virtue of the registered Will, dated 05.10.2005, executed by the 1st plaintiff who is no other than the father of the 2nd plaintiff, in her favour, she succeeded the property after the death of the 1st plaintiff on 04.01.1977. It is further stated that though her counsel filed memo reporting the death of the 1st plaintiff along with the death certificate, the cause title is not amended inadvertently and that the written statement was filed after the death of the plaintiff. It is further stated that due to oversight, the counsel did not seek amendment necessary and whereas due to illiteracy, the petitioner who is a rustic lady could not take proper steps in time.

5. The petition was opposed by the respondent/defendant by filing counter and denying the statement made by the petitioner