Court emphasized liberal allowance of amendments to pleadings to ensure determination of real issues in controversy, provided they do not result in injustice to the opposing party.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

This appeal by the unsuccessful plaintiff in O.S. No.34/2013 is directed against the impugned judgment and decree dated 22.09.2021 passed by the Senior Civil Judge & JMFC, Badami (for short, ‘the Trial Court’), whereby the said suit filed by the appellants/plaintiffs against the respondent / defendant for partition and separate possession of his share in the suit schedule properties was dismissed by the Trial Court.

2. For the purpose of convenience, the parties are referred to by their respective ranks before the Trial Court.

3. Briefly stated, the facts giving rise to the present appeal are:

(a) The appellant/plaintiff is the son of one late Chandrashekarappa Kalyanshetty and late Irawwa, who expired on 11.12.1981 and 26.09.2005 respectively leaving behind the appellant/plaintiff and respondents No.1 to 5/defendants No.1 to 5 to succeed to his estate as his heirs and legal representatives. Defendants Nos.6 to 8/respondents No.6 to 8 are said to be purchasers in respect of certain portions of the suit schedule properties. According to the plaintiff, the suit schedule properties were joint family properties in joint possession and enjoyment of the plaintiff and defendants No.1 to 5 and since defendant No.4 alienated some of the properties in favour of defendants No.6 and 8 depriving the plaintiff of his legitimate share in the suit schedule properties, the plaintiff instituted the aforesaid suit for partition and separate possession of his alleged share in the suit schedule properties and for other reliefs.

(b) Defendants No.1 to 5 filed their written statement disputing and denying the various allegations and claims made by the plaintiffs. It was contended that item No.1 and 2 of the suit schedule properties were separate and self-acquired properties of defendant No.4 and that the plaintiff does not have any manner of right, title, interest or possession over the same. It is also contended that the suit for partition was not maintainable and the same was liable to dismissed. Defendants No.6 and 8 also filed their separate written statement and contested the claim of the plaintiff and sought for dismissal of the suit.

(c) Based on the aforesaid pleadings, the Trial Court framed the following issues:

“:ISSUES:

1 Whether the plaintiff proves that all the suit schedule properties are ancestral, joint family properties of himself and the defendant No 1 to 5?

2 Whether the defendants prove that Sy. No 288/1A, 288/1B and Sy. No 289 are the self-acquired properties of the defendant No 4?

3 Whether the defendant No 6 proves that he is a bonafide purchaser for valuable consideration of survey number 288/1A and survey number 288/1B?

4 Whether defendants prove that survey number 175/ETA of Yarragoppa village and CTS No 2909/55 of Badami are self-acquired properties of defendant number eight?

5 Whether the suit is bad for non-joinder of all the properties?

6 Whether the plaintiff is entitled for 1/6 shares or any share in the suit schedule properties?

7 Whether plaintiff is entitled for the relief of partition and separate possession as prayed for?

8 To What order or decree?”

(d) Plaintiff examined himself as P.W.1 and two more witnesses as P.W.2 and P.W.3 and documentary evidence at Exs.P.1 to P.40 were marked on his behalf. Defendant No.4 examined himself as D.W.1, while defendant No.8 and defendant No.6 examined themselves as D.W.2 and D.W.3 respectively and documentary evidence at Ex.D.1 and D.50 were marked on their behalf. Aft