IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP(C).No. 554 of 2010(O) ------------------------ IA NO.3671/2010IN OS.151/2005 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER ------------------------------ EMPIRE COIR WORKS LTD., REPRESENTED BY ITS MANAGING DIRECTOR, REP. BY HIS POWER OF ATTORNEY HOLDER P.G.BHASI, AGED 58 YEARS, S/O. GOVINDAN, PULICKAL HOUSE, KANJIRAMCHIRA, ALAPPUZHA. BY ADV. SRI.B.PRAMOD RESPONDENT(S): --------------- 1. BENSIDER CHOTMAL, S/O. CHOTMAL KHANDELWAL, AGED 67 YEARS, J.P.BUILDINGS, OPPOSITE OF ALAPPUZHA NORTH POLICE STATION, VAZHICHERY WARD, ALAPPUZHA, PIN 688001. 2. RAMAKRISHNA CHOTMAL, S/O. CHOTMAL KHANDELWAL, AGED ABOUT 50 YEARS, RESIDING AT -DO- -DO- 3. JUGAL KISHORE CHOTMAL, S/O. CHOTMAL KHANDELWAL, AGED ABOUT 55 YEARS, RESIDING AT -DO- -DO- 4. HARIKRISHNA CHOTMAL, S/O. CHOTMAL KHANDELWAL, AGED ABOUT 45 YEARS, RESIDING AT -DO- -DO- 5. MOUNT CARMAL CATHEEDRAL CHURCH, ALAPPUZHA, REPRESENTED BY ITS VICAR FR.PAUL KOCHEEKARAN, AGED 70 YEARS. 6. NAJEEM, AGED 46 YEARS, S/O. ABDULLA, SHEEJA MANZIL, P.H.WARD, SOUTH ARYAD, ALAPPUZHA, PIN 688001. 7. SALIM, AGED 44 YEARS, S/O. RAJA, VADIYIL HOUSE, LAJANATHU WARD, ALAPPUZHA, PIN 688001. OP(C) NO.554/2010 2 8. NAZAR MOOPPAN, AGED 43 YEARS, S/O. ABDUL KAREEM, VADAKKE VELIYIL, AVALOOKKUNNU P.O., ALAPPUZHA, PIN 688001. 9. Y.M.SAJID, AGED 26 YEARS, S/O. YAHIYA, THAIVELIKKAKATHU HOUSE, VATTAYAL WARD, ALAPPUZHA, PIN 688001. ADV. SRI.M.D.SASIKUMAR FOR R1 TO R4 SRI.GEORGE MATHEW FOR R1 TO R4 SRI.DIPU JAMES FOR R1 TO R4 SRI.GEORGE SEBASTIAN FOR R6 TO R9 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.554/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.151/2005 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA EXT.P2 TRUE COPY OF IA NO.3671/2010 IN OS NO.151/2005 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA EXTG.P3 TRUE COPY OF THE OBJECTION SUBMITTED BY RESPONDENTS 1 TO 4 TO EXT.P2 EXT.P4 TRUE COPY OF ORDER DATED 20.10.2010 ON IA NO.3671/2010 IN OS NO.151/2005 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.554 of 2010 -------------------------------------- Dated this the 14th day of December, 2010. JUDGMENT Plaintiff in O.S.No.151 of 2005 of the court of learned Principal Munsiff, Alappuzha is the petitioner before me challenging Ext.P4, order dated October 20, 2010 on I.A.No.3671 of 2010. That was an application for amendment of the plaint schedule to correct the extent of property over which petitioner is claiming right and possession. 2. Petitioner filed the suit against respondents for fixation of boundary of the suit property describing extent which petitioner is entitled as per the document of title relied on by him as 19.19 Ares. Respondent Nos.1 to 4 resisted the suit disputing identity of the property and also denying claim of petitioner. In view of the dispute regarding identity Advocate Commissioner inspected the property more than once and submitted reports even with the assistance of the District Superintendent of Survey. The case was posted for trial in the list. It is at that stage that petitioner filed I.A.No.3671 of 2010 (Ext.P2) for amendment of the plaint schedule stating that petitioner was under the impression that extent of property to which it is entitled is 19.19 Ares but from the re-survey records it is revealed the property to which petitioner is entitled is 12.66 cents. It is accordingly that amendment was prayed for. That application was opposed by respondent Nos.1 to 4. Learned Munsiff dismissed the application observing that OP(C) No.554/2010 2 the suit is instituted in the year 2005, various Advocate Commissioners measured property and filed reports. According to the learned Munsiff, attempt of petitioner is to change very description of suit property and new documents and facts are being introduced. Learned Munsiff was of the view that if at all there is formal defect in the suit remedy was to withdraw the plaint. Learned counsel for petitioner contended that nature and character of the suit will not be changed by amendment of the plaint schedule to reduce the extent of property claimed by petitioner. Learned counsel for respondent Nos.1 to 4 contend that even the survey conducted with the assistance of District Superintendent of Survey as requested by petitioner revealed that property claimed by petitioner is not identifiable. The amendment sought for is regarding the extent of property. The extent is sought to be reduced to 12.66 cents from 19.19 Ares. Entitlement of respondent Nos.1 to 4 regarding certain documents is also sought to be corrected by amendment. 3. I must bear in mind that the suit is for fixation of boundary and even assuming that petitioner is able to show its entitlement to a lesser extent than what is stated in the plaint, necessarily it is within the power of court to fix boundary of extent of land to which petitioner is found entitled provided, other disputes regarding title and possession are either not involved or, are settled. If that be so, for the mere purpose of reducing the extent of claim in the plaint an amendment is not required. In that view of the matter I do not find reason to interfere with the impugned order. But I make it clear that if on evidence it is found that entitlement of petitioner is to a lesser extent than what is claimed in OP(C) No.554/2010 3 the plaint schedule and provided that there is no other dispute regarding title and possession or such dispute if any is settled it will be open to the learned Munsiff to take into account entitlement of petitioner (to the lesser extent) and grant relief as prayed for if such a course is permissible. Petition is disposed of with the above direction. I.A.No.17208 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks