High Court · 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased stay all further proceedings in O.S.No.75/2010 on the file of Principal Senior Civil Judge, Wanaparthy pending disposal of the C.R.P. Counsel for the Petitioner: Sri Rajagopallavan Tayi Counsel for the Respondent No.1: Sri D.Manikyala Rao The Court made the following: ORDER - --';L tx: - HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.977 of 2024 ORDER: This Civil Revision Petition is hled assailing the order, dated 27.02.2024, passed by the Principal Senior Civil Judge, Wanaparthy in I.A.No.454 of 2023 in OS.No.75 of 2010

2. Heard Sri Raja Gopallavan Tayi, learned counsel for the revision petitioner. No representation on behalf ol the respondents, though Sri Ch.Ravinder Babu, advocate, entered appearance for respondent No.1

3. The revision petitioner is defendant No.1 and respondent No.1 herein is plaintiff and respondent No.2 is defendant No.2 in the suit

4. For convenience, the parties will be hereinafter refered to as arrayed in the suit. 5 . The factual matrix of the case, in brief, is that the plaintiff filed a suit for declaration of title and recovery of possession in respect of Open Piot bearing Municipality No.88, admeasuring 200 square yards in Sy.Nos.l128 and ll29 of Wanaparthy Town and Municipality, claiming that he has got half share in the said 2 LNA, J CRP.No.977 o/ 2024 schedule of property. In the plaint, the plaintiff averred that defendant No.l is his brother; that their father purchased the suit schedule propefty under registered document No.4g7l1979, dated

03.03.1979; that there was division o[ agricultural properties between his father, defendant No.l and himself by way of oral agreement, as per which his father kept the suit schedule propelty for himself and he expired in the year 2000 leaving behind himself and defendant No.l as his legal heirs; that defendant No. I has alienated the suit schedule propefty in favour of defendant No.2 though the plaintiff requested defendant No.1 for partition. Hence, the suit.

6. Defendant No. 1 entered appearance and fi [ed written statement denying the material averments rnade in the plaint, however, contended that the suit schedule property was purchased by their father under registered sale deed and pursuant to oral arrangement between the family members, their father kept the suit schedule property for himself. It was further averred that the plaintiff has executed relinquishment deed in favour of defendant No.l relinquishing his rights over the suit schedule property by ') 3 LNA, J CRP.No.977 oJ 2024 taking money and therefore, defendant No.1, being the absolute owner of the property, sold the same to defendant No.2 under registered sale deed for valuable consideration and as such, the suit is not maintainable.

7. During the pendency of the suit, the plaintiff filed application in I.A.No.454 of 2023 under Order VI Rule 17 CPC seeking to amend the relief in the suit from declaration of title and recovery of possession of the suit schedule property to that of pafiition and separate possession of half share in the suit schedule property. In the affidavit filed accompanying the said application, the plaintiff averred that due to oversight, he filed the suit seeking the relief ol declaration of title and recovery of possession, however, as per the pleadings in the plaint as well as the written statement filed by defendant No.1, the suit schedule property was purchased by their father by way of registered sale deed and he died intestate without parlition of the said property and therefore, the plaintiff and defendant No.l have equal share in the suit schedule propefty. It was further averred that defendant No.1 alienated the entire suit schedule property to defendant No.2, -/ 4 LNA, J CRP.No.977 of 2021 without the knowledge of the plaintiff and when the plaintiff came to know the said fact and questioned, there was no response from defendant No. 1 and hence, the plaintiff filed the suit for declaration of title and recovery of possession of the suit schedule property and subsequently, the application is filed for amendment of the relief to that of partition and separate possession of the suit schedule property.

8. Defendant No.l filed counter resisting the said application and avered that the application is not maintainable and in fact, if the relief of amendment is granted, it will comptetely change the nature of the suit and also defeat the defence taken by delendant No. 1 in the written statement. It was fuither avered that the suit was filed in the year 2010 and defendant Nos. 1 and 2 filed written statement, entire trial had been completed and the matter was coming up for arguments, at that stage, the application was filed and therefore, the said application is barred by limitation as the same is filed at a belated stage only to defeat the rights of the defendants over the suit schedule property and accordingly, the application is liable to be rejected. \./ 5 LNA, J CRP.N0.977 of 2024

9. The trial Court by the impugned order allowed the said application with observations at para- 1 1 of the order, which are extracted hereunder: "As seen from the pleadings of both the parties, the suit as it is filed by the plointiff seeking declaration over half portion of the suit schedule propet.ty is nothing but asking for partition of the suit schedule property equally in between him and his brother/defendant No.l. Thus, if the proposed amendrnent is allowed, it does not change the nature of the suit, as impliedlv the suit itself is for partition. No pre.judice will be caused to defendant No.l, as his defence of relincluishment of right by the plaintiff over the suit schedule property does not change either it is a declalation suit rtr a partition suit. The amendment, on lhe face of it discloses that it is sought only with respect to the relief in the plaint, and is visible on the focts, which ore already pteaded in the plaint and in the written stotemenl. The proposed amendment is not introducing any new cause of action and it is not moctifiing thc Jacr: pleaded in the plaint and not going to change the evitlence oral and documentary. As already stated obove, no prejudice would also be caused to the respondent/defendant No.l is not appltcabLe to the facts on hand. In this view of the matter, this Court .feels it appropriate to permtt the 6 LNA, J CRP.No.g77 0I2024 petitioner/plaintiff to amend tlrc relief in the suit from declaration and recovery of possession to partition and separate possession of half share of the suit schedule property, and for the consequential amendments in the ploint. Point is accordingly answered. " 1 0. Leamed counsel for- the petitioner contended that the approach of the trial Court is wholly incorrect and the observation of the trial Court that amendment of relief from declaration of title and recovery of possession to that of parlition and separate possession will not change the nature of the suit is improper, crroneous and therefore, the impugned order is unsustainable. It is further contended that the issues, evidence and factors to be decided in a suit for declaration and in a suit for partition are completely different. He further contended that the application fbr amendment was filed by the plaintiff at the stage of arguments, therefore, he cannot be permitted to amend the relief sought for in the plaint and prayed this Court to dismiss the Revision Petition. 1 1 . Perusal of the record reveals that the suit was filed in the year 201 0 seeking the relief of declaration of title and recovery of possession in respect of half share in the suit schedule property. 7 LNA, J CRP.No.977 of 2024 The def'endants filed their written statement and entire trial in the suit was completed and the matter was coming up for arguments, at that stage, the plaintiff has filed the application seeking to amend the relief sought lor in the suit.

12. The issues were framed by the trial Court based on the pleadings of both the parties and the evidence was let in by both the parties vis-d-vis the relief sought for in the suit and the suit is at the stage of reply arguments by the plaintiff. At that juncture, the plaintifT has llled the application, i.e., thirteen (13) years after filing of the suit contending that by over sight he filed the suit for declaration of title and recovery of possession in respect of half share in the suit schedule propefty. A pafty who approaches the Couft must be diligent and seek proper relief in the case frled by him/her. The pleadings o1'the parly would be in accordance with the relief sought for in the case and the opposite parly would putforth its defence to the same.

13. In the case on hand, the plaintiff having full knowledge of the facts, filed the suit for declaration of title and recovery of possession of half share in the suit schedule property arraying his a- -r' 8 LNA, J CRP.No.977 o! 2024 brothet as defendant No.l and the vendor of his brother as defendant No.2. In view of the same, the plaintiff fited the suit against defendant Nos. 1 and 2 seeking the relief of declaration of title and recovery of possession in respect of half share in the suit schedule property and as such, at any cost, it cannot be believed that due to oversight the plaintiff has not filed the suit seeking the relief of partition. Once the application for amendment of relief is allowed, necessary issues(s) in that regard have to be framed by the Court and evidence has to be led by both the parties and arguments have to be advanced in respect thereto. Therefore, by the act of the plaintiff in filing the application seeking amendment of the relief at the stage of reply arguments, it can be inferred that he is trying to protract the litigation, which cannot be permitted.

14. As rightly contended by leamed counsel for the petitioner/defendant No.1, the issues, evidence and the factors to be adjudicated in a suit for declaration and in a suit for partition are completely different. In such an event, the obserwation of the trial Court that if amendment of relief in the suit is permitted, it will not cause any prejudice to the defendant is erroneous since by allowing 9 LNA, J CRP.No.977 of 2024 the application for amendment of the relief, the nature of the suit will completely change, which is impermissible in law

15. Hence, in the light of the above, this Court is of the considered opinion that the impugned order suffers from irregularity and infirmity and as such, warrants interference by this Court

16. Accordingly, this Civil Revision Petition is allowed and the impugned order is set aside. 11 . Pending miscellaneous applications, if any, shall stand closed. No costs. //TRUE COPYII Sd/. T. JAYASREE STANT REGISTRAR AS SECTION OFFICER To,

1. The Principal Senior Civil Judge, Wanaparthy 2. One CC to Sri Rajagopallavan Tayi, Advocaie [OPUC] 3. One CC to Sri D. Manikyala Rao, Advocate IOPUC] 4. Two CD Copies. lcK/gh HIGH COURT DATED:21/02/2025 ORDER CRP.No.977 of 2024 Allowing the C.R.P. without costs e STA r'{, 1 'at. 2B rri;\ ?[25 (,. t ( ,5 d l'c E s p,rt '-,t )c