IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(C).No. 18125 of 2008(G) -------------------------- AGAINST THE ORDER DATED 24/05/2008 IN IA 1429/08 IN OS.235/2007 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER: ------------ 1. SRI.JOSE, S/O.JOHN, KALUMKAL HOUSE, AYAVANA PO., 2. ANNAKUTTY, W/O.JOHN, KALLUMKAL HOUSE AYAVANA PO BY ADV. SRI.JOHN K.GEORGE SRI.P.K.VARGHESE RESPONDENTS: ------------- JOSHY, S/O.ABRAHAM, PALAYIKUDIYIL HOUSE ENANALLOOR PO., MUVATTUPUZHA BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18125 of 2008 ------------------------------- Dated this the 17th June, 2008. J U D G M E N T Petitioners are defendants in O.S.No.235 of 2007, on the file of Munsiff Court, Muvattupuzha. Respondents are the plaintiffs. The suit is for declaration of title to plaint B schedule property and also for recovery of possession. After written statement was filed by the petitioners, respondent filed I.A.No.1429/2008, an application under Rule 17 of Order VI of Code of Civil Procedure, to amend the plaint. Petitioners filed objection contending that amendment sought for cannot be allowed as it would take away the defence available to the petitioners and also will alter the nature and character of the suit. Under Ext.P5 order, learned Munsiff allowed the application. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for the petitioners was heard. The argument of the learned counsel relying on the decision of a learned Single Judge of this Court in Bhaskaran Nair v. W.P.(C) No.18125/2008 2 Chandramathiyamma (2006 (1) KLT 533) and the decision of the Apex Court in The Municipal Corporation of Greater Bombay v. Lala Pancham and Others (AIR 1965 SC 1008), was that learned Munsiff should not have allowed the application for amendment as it would take away the valid defence of adverse possession, which was available to the petitioners. It was argued that in paragraph 2 of the original plaint, there is no case of any permissive possession of the petitioners, and by the proposed amendment, trial court allowed respondents to insert a pleading that petitioners are in permissive possession and if the amendment is allowed to stand, it will take away the plea of adverse possession which was available to the petitioners. 3. It is seen from paragraph 2 of the plaint that respondents contended that petitioners are in possession of the plaint B schedule property and they have no title to plaint B schedule property and plaint B schedule property forms part of plaint A schedule property, and only respondent has title to the property. That plea is seen met by petitioners in paragraph 4 of their written statement. What was contended in paragraph 4 of the written statement was that respondent has no manner of right to any portion of the plaint B schedule property. The right or title of respondent to plaint B schedule W.P.(C) No.18125/2008 3 property was not admitted. True, there is an alternative plea that even if it is found that respondent has title, it is lost by adverse possession and limitation. But without recognising the right and title of respondent, a plea of adverse possession, as such, will not lie. The amendment which was allowed by the court was permitting the respondent to contend that father of first petitioner married from Pallayil Kudiyil family, and after the marriage, he started to reside in the house of the wife, and thus, petitioners obtained the property and possession of plaint A and B schedule properties was handed over to the respondent, prior to the execution of the title documents and petitioners and respondent are family friends, and during December, 1999, first petitioner came to the house of the respondent and told respondent and his family members that plaint B schedule property belong to the petitioners and covered by their title deeds and now it is in the possession of the respondent, and on the request of the petitioners and believing their words, respondent handed over possession of plaint B schedule property. The contention of the petitioners is that by allowing the amendment, plea of adverse possession will be lost. In the light of the pleading in the written statement, I do not find that the amendment allowed by the trial court will not take away the right, if any, available to the petitioners. W.P.(C) No.18125/2008 4 More over, petitioners are entitled to file additional written statements, disputing the plea introduced by the amendment. While allowing the application for amendment, Court is not to consider the correctness of the amendment sought for. In the interest of justice, Munsiff allowed the application. I find no illegality or irregularity in the order. Writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.