THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P. 5084 of 2006 Dated.26-08-2010 Between: H. Kupendra Reddy …Petitioner Vs. H. Yasodamma (died) and others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P. No. 5084 of 2006 ORAL ORDER: This is a plaintiff’s revision under Article 227 of the Constitution of India against the order and decree dated 14-07-2006 of the learned Senior Civil Judge, Adoni, rejecting the application – I.A.No. 323 of 2006 filed in O.S.No. 33 of 1999 under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment of the plaint to incorporate the additional/alternative relief of a declaration of title and possession in respect of the plaint ‘A’ schedule property. The revision petitioner filed O.S.No.33 of 1999 for partition of the schedule properties. Earlier the revision petitioner and the (now deceased) 1st respondent/1st defendant in the suit, who is his adoptive mother, filed O.S.No. 17 of 1985 against the defendant Nos. 2,3 and 4 in the present suit seeking declaration of title and other incidental reliefs in respect of plaint schedule property therein. O.S.No. 17 of 1985 was decreed. The adoption of the plaintiff/revision petitioner by one Bojireddy and the 1st respondent was upheld as also the registered will executed by Bojireddy bequeathing the property in question jointly in favour of the revision petitioner and the 1st respondent. In O.S.No. 33 of 1999, the 4th defendant filed a written statement admitting the relationships and the fact of O.S.No. 17 of 1985 having been decreed, but asserted that after the dismissal of O.S.No. 17 of 1985 there was a compromise between the parties and a settlement was arrived at between plaintiff and defendant Nos. 1 to 4 (in O.S.No. 33 of 1999) whereunder the properties of late Bhojireddy were partitioned among the plaintiff and defendant Nos. 1 to 4 under a document dated 21-07- 1996. The details of the partition were said to have been set out in schedules – A, B and C in the memorandum of settlement. In view of the above specific plea of the 4th defendant, the revision petitioner filed I.A.No. 323 of 2006. Since the suit was for partition of the plaint schedule properties, presumptively on the basis of a claim to a share in the properties, he need not have sought an amendment of the plaint by filing I.A.No. 323 of 2006, again seeking a declaration of his title. To that extent, the relief of declaration of title is redundant and is misconceived. He also sought possession in respect of the properties which have fallen to his share and that of the 1st defendant in the family settlement pleaded by the 4th defendant i.e., a plea which is slightly distinct from the generic claim on which the suit for partition is founded. While the claim for partition on the generality of the suit schedule properties in O.S.No. 33 of 1999 is on the basis of a joint title to the properties, in respect of certain properties asserted by the 4th defendant have been allotted to the plaintiff under the family settlement asserted, the claim is not exclusively on the basis of joint ownership of the properties between the plaintiff and 1st defendant, but on the basis of the family settlement pleaded by the 4th defendant. In the event the plaintiff fails to succeed on his generic claim which is the basis for suit for partition, the plaint would like to fall back on the family settlement pleaded by the 4th defendant. In the circumstances, the plaintiff could have made an application for amendment of the plaint to assert additional grounds i.e., on the basis of the family settlement instead o f seeking relief as in I.A.No. 326 of 2006. Since the revision petitioner/plaintiff sought declaration of title as a distinct relief by way of amendment, the Court below rightly rejected the same, but at the same time the substantive apprehension of the petitioner/plaintiff that he might be non-suited if the claim in main suit fails for any reason, is not resolved by the wholesale rejection of his application – I.A.No. 323 of 2006. In the facts and circumstances above and in view of the fact that this application is under Article 227 of the Constitution, this Court considers it appropriate to set aside the order dated 14-07-2006 in I.A.No. 323 of 2006 in O.S.No. 33 of 1999 while according liberty to the revision petitioner/plaintiff to file a fresh application seeking appropriate amendments to the plaint in O.S.No. 33 of 1999. Such application to be filed within a period of one week from the date of receipt of a copy of this order, having regard to the fact that the suit is of the year 1999 and the respondents/defendants have been sufficiently traumatized for over a decade in the protracted litigative strategies of the plaintiff. On such application being filed within the time stipulated herein, the Court below may consider passing appropriate orders therein expeditiously and shall also consider proceeding with the trial of the suit without further procrastination. The revision petition is disposed of as above after hearing the learned counsel for the petitioner Sri R.V. Subba Rao and Sri A. V. Sivaiah, the learned counsel for the respondent Nos. 2,5,6,7and 8. No costs. ______________________ GODA RAGHURAM, J Dated: 26-08-2010 Pvks/* Nb:- Furnish C.C. as early as possible. b/o pvks