- 1 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.200418 OF 2025 (GM-CPC) BETWEEN: MALLAPPA S/O SIDDAPPA SHYABADI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O NAGARAHALLI, TQ: SINDAGI-586 202. …PETITIONER (BY SRI D.P. AMBEKAR, ADVOCATE) AND: 1. BASALINGAMMA W/O GURUPADAPPA SHYABADI, AGE: 76 YEARS, OCC: HOUSEHOLD WORK, 2. CHIDANAND S/O GURUPADAPPA SHYABADI, AGE: 53 YEARS, OCC: AGRICULTURE AND JOB, 3. MALLIKARJUN S/O GURUPADAPPA SHYABADI, AGE: 48 YEARS, OCC: JOB, 4. GANGAMMA W/O LAXMAN SHYABADI, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, 5. KAVYA D/O LAXMAN SHYABADI, AGE: 22 YEARS, OCC: HOUSEHOLD, 6. SAHANA D/O LAXMAN SHYABADI, AGE: 19 YEARS, OCC: STUDENT, Digitally signed by RENUKA Location: High Court Of Karnataka - 2 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 ALL ARE R/O NAGARAHALLI, TQ: SINDAGI-586 202. …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI, QUASHING ANNEXURE-F, NAMELY THE ORDER DATED 28.01.2025 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND JMFC, SINDAGI, ALLOWING I.A. NO.11 IN O.S.NO.93/2017 AND FURTHER REJECT THE SAID I.A. NO.11 IN O.S. NO.93/2017 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC SINDAGI. B) SUCH FURTHER OR OTHER RELIEFS BE GRANTED AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R.NATARAJ ORAL ORDER (PER: HON'BLE MR. JUSTICE R.NATARAJ) The defendant in O.S.No.93/2017 on the file of the Additional Senior Civil Judge and JMFC, Sindagi is before this Court challenging an order dated 28.01.2025, by which an application filed by the plaintiffs under order VI Rule 17 of CPC was allowed. 2. The suit in O.S.No.93/2017 was filed for declaration of title and for perpetual injunction to restrain - 3 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 the defendant from interfering with the possession of the plaintiffs in the suit schedule property. The suit property is an agricultural land bearing Sy.No.92/3 of Huvinhalli measuring 5 acres 21 guntas. The plaintiffs claimed that the suit property was their joint family ancestral property which their predecessor derived at a partition in the year 1992-93 and that from then on, they were in possession of the suit property. They alleged that the defendant, who was one of the members of the erstwhile joint family, was disturbing their possession in the suit property. Therefore, they sought for declaration of their title and for perpetual injunction. 3. The suit was contested by the defendant, who claimed that a partial partition took place in the year 1993, in terms of which, Sy.No.96/1 measuring 9 acres 19 guntas was allotted to the share of his father. He contended that thereafter, the predecessor of the plaintiffs and the other coparceners had assured that they would effect a further partition in respect of the land bearing - 4 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 Sy.Nos.92/1 and 92/2. He contended that during January, 1994, his father came to know that the other coparceners had divided Sy.No.92/1 and 92/2 without his consent, which resulted in a reconciliation before the elders of the village. At such conciliation, the other coparceners admitted their mistake and as per the advice of the elders, the predecessor of the plaintiffs voluntarily transferred the suit land in favour of the father of the defendant and delivered possession of the suit land and filed a Varadi to that effect on 28.01.1994 which resulted in a M.E.No.1228 of Huvinhalli village and the name of his father was recorded in the revenue records. Later, as per the advice of the elders of the village, the other member of the joint family, transferred the land bearing Rs.No.92/1A in favour of the father of the defendant and delivered possession on 28.01.1994 and submitted a Varadi which was certified in M.E.No.1229. Thus, he contends that his father was in exclusive possession of the suit land as on 28.01.1994. He also claimed that if the Court were to come to the conclusion that his father did not derive lawful title in - 5 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 respect to the suit property, then he prayed that the Court declare that he had acquired title by adverse possession. He also contended that his father divided the suit property between him and his brother on 26.10.1996 and at the said partition, Sy.No.96/1 measuring 9 acres 19 guntas was allotted to the share of his brother, while Sy.No.92/1A measuring 5 acres 20 guntas was allotted to the share of his another brother and Sy.No.92/1B was allotted to his share and that the said partition was duly registered before the Sub-registrar, Sindagi. He contended that the partition between him and his brothers was known to the plaintiffs. With this and other contentions, the defendant denied the title of the plaintiffs and also claimed that the plaintiffs were never in possession of the suit property and therefore the suit for declaration of title and perpetual injunction was not maintainable. 4. Based on these contentions, the Trial Court framed the following issues: - 6 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 “1) Whether plaintiffs prove their title and possession over the suit schedule property bearing Sy No.92/3 measuring 5 Acre 21 gunthas as on the date of suit? 2) Whether plaintiffs prove the alleged interference by the defendants? 3) Whether suit is barred by time? 4) Whether plaintiffs are entitled for relief as prayed in the suit? 5) What order or decree? “ 5. Later after the evidence of the parties was recorded, the plaintiffs filed an application under Order VI Rule 17 of CPC to amend the plaint to incorporate an alternate relief for recovery of possession in the event the Court held that the plaintiffs were not in possession of the suit property. The application was contested by the defendant on the ground that the same was filed belatedly that too after the parties had adduced their evidence. The defendant had also contended that the plaintiffs had deliberately not sought for the alternate relief at the - 7 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 earliest point of time even though the plaintiffs knew that they were not in possession of the suit schedule property. 6. The Trial Court in terms of the impugned order, allowed the application on the ground that the plaintiffs had sought for declaration of their title to the suit property and that the suit should not fail on a technical ground that the plaintiffs had not sought for recovery of possession. It relied upon the judgment of the Honourable Apex Court in the case of Dinesh Goyal versus Suman Agarwal1. Being aggrieved by the said order, the defendant is before this Court. 7. The learned counsel for the defendant contended that the plaintiffs were aware that the defendant was in possession of the suit property. He contends that the defendant had specifically contended in the written statement that the predecessor of the plaintiffs had handed over possession of the suit property to the father of the defendant in the year 1994 and that the 1 2024 SCC Online SC 2615 - 8 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 revenue documents were brought about in respect of the suit property in the name of the father of the defendant. He therefore contended that the plaintiffs knew fully well that they had lost possession of the suit property in the year 1994 itself. Therefore, he contends that the plaintiffs must have sought for the relief at the earliest point in time at least before the issues were framed in the suit. He contends that the revenue documents stood testimony to the claim of the defendant that the possession of the suit property was delivered to the father of the defendant at an undisputed point of time. Therefore, he contends that the plaintiffs must have sought for the amendment at the earliest point in time. 8. I have considered the submissions made by the learned counsel for the defendant. 9. As rightly contended by the learned counsel for the defendant, the defendant had taken a specific contention in the written statement that the suit property was given up by the predecessor of the plaintiffs in favour - 9 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 of the father of the defendant by submitting a Varadi in the year 1994. In view of the contention raised by the defendant in written statement, the plaintiffs were bound to seek for the amendment to recover possession of the suit property at the earliest point in time. However, we cannot loose sight of the fact that the suit property is an agricultural land and the plaintiffs claim title to the suit property under their predecessor, who derived it at a partition between him and his family members. Therefore, it is for the plaintiffs to prove the prior partition and if they are successful in that attempt, the plaintiffs were bound to succeed in the suit. However, if the defendant is able to establish that the predecessor of the plaintiffs had given up the suit property to the father of the defendant, the plaintiffs are bound to fail. In the event of the plaintiffs proving their title to the suit property and if it is found that the defendant is in possession of the suit property, then the suit filed by the plaintiffs should not fail on a technical ground namely, that the plaintiffs did not seek for recovery of possession of the suit property. It is also - 10 - NC: 2025:KHC-K:1065 WP No. 200418 of 2025 relevant to note that the amendment application to include the alternate relief of recovery of possession was filed well within 12 years from the date of filing of the suit. 10. In that view of the matter, the Trial Court was right in allowing the application filed by the plaintiffs so that the plaintiffs are not sent empty handed even after getting a decree in the suit. Hence, there is no need to interfere with the impugned order passed by the Trial Court. Hence, the writ petition is dismissed. Any observations made in this writ petition shall not come in the way of the Trial Court deciding the suit on merits. It is open for the defendant to file an additional written statement Sd/- (R.NATARAJ) JUDGE RSP List No.: 1 Sl No.: 25 CT: AK