IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 OP(C).No. 3136 of 2011(O) ------------------------- O.S. NO.936/2009 OF MUNSIFF COURT, KOLLAM ........ PETITIONERS : ------------- 1. VIJAYAMBIKA, AGED 46 YEARS,D/O SUMANGI, SOPHIA, NARIKKALLU MUKKU, PALACHIRA P.O, VARKALA FROM VIJAYABHAVAN, KUREEPUZHA CHERRY, KAVANAD P.O, PIN-691003, KOLLAM WEST VILLAGE. 2. VIJAYAKUMARI, AGED 43 YEARS,D/O SUMANGI, PULIVELLAYIL HOUSE, KAPPIL EAST, KRISHNAPURAM P.O, KAYAMKULAM FROM VIJAYABHAVAN,KUREEPUZHA CHERRY, KAVANAD P.O,PIN-691003,KOLLAM WEST VILLAGE. 3. LAKSHMANAN, AGED 73, S/O NARAYANAN, VIJAYA BHAVAN, KUREEPUZHA CHERRY, KAVANAD P.O, PIN-691 003, KOLLAM WEST VILLAGE FROM CHANAKKIL, ASRAMAM CHERRY KOLLAM EAST VILLAGE, KOLLAM TALUK. BY ADVS. SRI.V.V.RAJA SRI. R. RANJITH RESPONDENT : ------------ VIJAYA MOHAN, AGED 49 YEARS, S/O. LEKSHMANAN, RESIDING AT MUTHALISSERIL, PATHIYOOR P.O., THOTTATHU CHERRY,PATHIYOOR VILLAGE, FROM VIJAYABHAVAN, KUREEPUZHA CHERRY, KAVANAD P.O., PIN - 691 003, KOLLAM WEST VILLAGE. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3136 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S NO. 936/2009 OF THE MUNSIFF COURT, KOLLAM DATED 17.12.2009 EXHIBIT P2- TRUE COPY OF THE JOINT WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN O.S. NO.936 OF 2009 OF THE MUNSIFF COURT, KOLLAM DATED FEB, 2010. EXHIBIT P3- TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED AS I.A. NO. 3504 OF 2011 IN O.S. NO.936 OF 2009 OF THE MUNSIFF COURT, KOLLAM DATED AUG.,2011 EXHIBIT P4- COPY OF THE RE-SURVEY PLAN IN RESPECT OF THE SCHEDULE PROPERTIES. EXHIBIT P5- TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS TO I.A. NO.3504 OF 2011 IN O.S.NO.936 OF 2009 OF THE MUNSIFF COURT, KOLLAM, DATED 22.08.2011. EXHIBIT P6- TRUE COPY OF THE TAX RECEIPT DATED 16.02.2005 IN RESPECT OF 5.45 ARES OF PROPERTY COMPRISED IN RE SY NO 294/59. EXHIBIT P7- TRUE COPY OF THE TAX RECEIPT DTD. 25.03.1998 IN RESPECT OF 8.60 ARES OF PROPERTY COMPRISED IN RE SY NO 294/24. EXHIBIT P8- TRUE COPY OF THE RESURVEY PLAN DTD.5.6.1992 PREPARED BY THE ASSISTANT DIRECTOR OF SURVEY AND LAND RECORDS (RE SY) QUILON. EXHIBIT P9- TRUE COPY OF THE ORDER DTD. 27-8-2011 IN I.A. NO.3504 OF 2011 IN O.S. NO. 936 OF 2009 OF THE MUNSIFF COURT, KOLLAM. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3136 of 2011 ==================================== Dated this the 29th day of September, 2011 J U D G M E N T Petitioners are defendants 1 to 3 in O.S. No.936 of 2009 of the court of learned Munsiff, Kollam. That suit is filed by the respondent for partition of plaint C schedule and allot 1/3rd share to him ignoring partition deed No.1560 of 2007. Plaint C schedule property consists of properties in the plaint A and B schedules along with a building therein. Petitioners filed written statement contending that respondent is not entitled to the partition prayed for and that properties are not partible. Respondent filed application for amendment of the plaint to include certain survey numbers in plaint A and B schedules. That application was resisted by the petitioners on various contentions. That objection was rejected and learned Munsiff who passed Ext.P9, order which is under challenge. 2. Learned counsel for petitioners asserted that since the re-survey has become final and the present application for O.P(C) No.3136 of 2011 -: 2 :- amendment came after one year of such finalization the impugned order cannot be sustained. Whether the claim incorporated by amendment could be stand in view of the provisions of the Survey and Boundaries Act is a matter to be decided in the trial. It is not necessary or possible to prejudge the merit of the claim sought to be incorporated by amendment. Hence I refrain from making any opinion regarding that contention of petitioners. 3. Admittedly the trial has not commenced. Rule 17 of Order VI of the Code of Civil Procedure enables amendment to determine the real question in controversy between the parties. It is not as if by the amendment petitioners are prejudiced. It is open to them to file additional written written statement in answer to the amended plaint. 4. Learned counsel submitted that learned Munsiff has made some observations in Ext.P9. It is made clear that whatever observations are made by learned Munsiff on the merit of the claim made by amendment or as regards the objections raised by petitioners in Ext.P9, order shall stand confined to the disposal of O.P(C) No.3136 of 2011 -: 3 :- Ext.P3, application. Original Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv