IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 23343 of 2009(O) ------------------------------------- O.S. NO.1682/2003 OF THE IIND ADDL. MUNSIFF'S COURT, ERNAKULAM ....... PETITIONER(S): ------------------------- 1. DIVAKARAN, AGED 66, S/O.KRISHNAN, LAKSHMI BHAVAN, PUTHUPPALLIPRAM KARA, (A.K.G.ROAD), KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. LAKSHMIKUTTY, AGED 61, W/O.DIVAKARAN, LAKSHMI BHAVAN, PUTHUPPALLIPRAM KARA, (A.K.G.ROAD), KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. MR.VARGHESE C.KURIAKOSE RESPONDENT(S): ------------------------ HINDUSTAN MACHINE TOOLS COMPANY LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING MACHINE TOOLS DIVISION AT H.M.T.COLONY POST KALAMASSERY, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, REP. BY ITS GENERAL MANAGER. BY MR .M.PATHROSE MATTHAI, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.23343 of 2009 - O --------------------------------- Dated this the 27th day of August, 2009 JUDGMENT The writ petition is filed seeking the following relief: “To call for the records leading to Ext.P9 order examine the same and set aside the same holding the same as illegal, unjust and tainted with perversity and jurisdictional error and allow I.A.No.4942/2009 and permit the petitioner to adduce evidence on the amended plaint in the interest of justice, if necessary by issuing writ in the nature of certiorari or other appropriate writ.” 2. Petitioners are the plaintiffs in O.S.No.1682 of 2003 on the file of the II Additional Munsiff Court, Ernakulam. Suit is one for declaration of easement over a way by prescription or easement by necessity and also for consequential injunction. The defendants resisted the suit by filing a written statement in which among other contentions the right of the plaintiff to claim easement was also impeached. Two commission reports were collected during the course of the suit. When the case came up in the list for trial petitioners/plaintiffs moved an application for W.P.(C).No.23343 of 2009 - O 2 amendment of the plaint to incorporate an alternate case that if at all the land, D schedule pathway, over which the declaration of easement is claimed is found to be puramboke land still they are entitled to declaration sought for. With that amendment application plaintiffs also produced a letter issued by the Superintendent of Survey indicating that the pathway described as D schedule fall within puramboke land. The amendment sought for was objected to by the defendants. Learned Munsiff after hearing both sides negatived the amendment sought for in the plaint by passing P9 order. Propriety and correctness of P9 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner submitted that the plaintiffs can take up inconsistent pleas to sustain the relief sought for in the suit. There is no impropriety in the plaintiff advancing a case that they are entitled to have a declaration of prescription by easement, and easement by necessity even by W.P.(C).No.23343 of 2009 - O 3 setting forth a case that the land over which such easement is claimed is a puramboke land, is the submission of the learned counsel. Admittedly, Government, owner of the puramboke land, is not made as a party in the suit. Needless to point out, to claim any easement over the puramboke land the servient owner, Government, is a necessary party. So much so, without impleading the servient owner of the property through which the right of easement is claimed, it is not proper nor correct for the Court to adjudicate the right of easement claimed over that land. For that solitary reason itself, the alternate case sought to be brought in by way of amendment in the plaint could not have been allowed. I find no impropriety or illegality in P9 order passed by the learned Munsiff in declining the amendment application. The writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-