IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 OP(C).No. 3846 of 2011(O) --------------------------------- OS.117/2007 of MUNSIFF MAGISTRATE, SULTHAN BATHERI ............................................. PETITIONER(S)/(PLAINTIFF) : ----------------------------------------- T.R.AYYAPPAN, S/O.RAMAN, PUTHEN VEEDU, NAIKATTY P.O, NOOLPUZHA AMSOM & DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.P.T.MOHAN KUMAR SRI.S.K.SAJU SRI.A.RANJITH NARAYANAN RESPONDENT(S)/(DEFENDANTS): ----------------------------------------------- 1. JANARDHANAN, S/O.LATE GOPALAN, CHEENGPPURA VEEDU, MATHAMANGALAM, KUPPADI AMSOM & DESOM, NAIKATTY P.O, SULTHAN BATHERY, WAYANAD DISTRICT 673 592. 2. VELAYUDHAN, S/O. KAPPU, THEKKAMPATTA HOUSE NOOLPUZHA P.O, NOOLPUZHA AMSOM AND DESOM SULTHAN BATHERY TALUK, WAYANAD DISTRICT 673 592. 3. MURALEEDHARAN, S/O. GANGADHARAN NAIR CHELERIKKUNNU VEEDU, THRIKAIPATTA AMSOM, DESOM, VYTHIRI TALUK, WAYANAD 673 576. 4. P.K.ARAVINDAKSHAN,S/O.LATE KUNHIKANNAKURUPPU,MATHAMANGALAM,NAIKATTY P.O, NOOLPUZHA AMSOM, DESOM, SULTHAN BATHERY TALUK, WAYANAD 673 592. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS OP(C) NO. 3846 OF 2011(O) APPENDIX PETITIONER(S) EXHIBITS :- EXT.P 1 COPY OF THE PLAIN IN O.S.NO. 117/2007 IN THE FILE OF THE MUNSIFF OF SULTHAN BATHERY. EXT.P2 A COPY OF THE COMMISSION REPORT FILED DATED 8-3-2011. EXT.P2 B PLAN ATTACHED TO THE ABOVE. EXT.P2 C DO- EXT.P3 COPY OF THE I.A. 634/2011 FILED FOR AMENDMENT OF THE PLAINT. EXT.P4 COPY OF THE ORDER PASSED BY THE LOWER COURT IN THE ABOVE MATTER. RESPONDENTS' EXHIBITS :- NIL /TRUE COPY/ P.A. TO JUDGE DCS THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3846 of 2011 -------------------------------------- Dated this the 30th day of November, 2011. JUDGMENT Plaintiff in O.S.No.117 of 2007 of the court of learned Munsiff-Magistrate, Sulthan Bathery is aggrieved by Ext.P4, order rejecting his request for amendment to incorporate an alternative prayer for recovery of possession of the suit property. 2. The suit as originally filed is one for fixation of boundary. Respondents 3 and 4 filed written statement contending that petitioner has no title over the suit property as the said property was sold in execution to the 3rd respondent who took delivery of the same. After the Advocate Commissioner submitted report, petitioner filed I.A.No.634 of 2011 for amendment of the plaint to incorporate the alternative prayer for recovery of possession. It is that application which learned Munsiff-Magistrate dismissed as per Ext.P4, order. That order is under challenge. 3. It is contended by the learned counsel that dismissal of I.A.No.927 of 2007 or confirmation of that order by this Court in Writ Petition will not stand in the way of petitioner making an alternative prayer for recovery of possession. OP(C) No.3846/2011 2 4. The case pleaded by petitioner in the application for amendment is that the suit property which belongs to him was also sold in court auction for the debt of his mother and so far as petitioner was not a judgment debtor in O.S.No.98 of 1975, his share in the property could not have been sold and sale if any will not confer title on the 3rd respondent. 5. Certainly, the above argument is attractive. But it is seen that an earlier application filed by petitioner for amendment of plaint to incorporate a prayer for declaration of title (for the same reason stated above) was dismissed by the learned Munsiff and confirmed by this Court. In that view of the matter petitioner cannot circumvent the said order by omitting the prayer for declaration of title and confining the present request for amendment to recovery of possession alone. Though prayer for recovery of possession is alternatively made, it is on the strength of title a declaration of which has already been denied by the learned Munsiff and confirmed by this Court. In that view of the matter request for amendment was rightly disallowed by the learned Munsiff- Magistrate. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks