IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 33364 of 2008(V) -------------------------- OS.788/1993 of PRL.MUNSIFF COURT.,NEYYATTINKARA .................... PETITIONERS: --------------- 1. SUMITHRAN, S/O.SUKUMARA PANICKER, VADAKKEVILA KADAYARA PUTHEN VEEDU, KOTTAIKKAL DESOM, ANAVOOR VILLAGE, KOTTAIKKAL P.O., PERUMKADAVILA VIA., NEYYATTINKARA, THIRUVANANTHAPURAM. 2. MINIKUMARI, D/O.SUKUMARA PANICKER, VADAKKEVILA KADAYARA PUTHEN VEEDU, SAI BHAVAN, KOTTAIKKAL DESOM, ANAVOOR VILLAGE, KOTTAIKKAL P.O. PERUMKADAVILA VIA., NEYYATTINKARA, THIRUVANANTHAPURAM. 3. RENUKADEVI, D/O.SUKUMARA PANICKER, VADAKKEVILA KADAYARA PUTHEN VEEDU, SAI BHAVAN, KOTTAIKKAL DESOM, ANAVOOR VILLAGE, KOTTAIKKAL P.O. PERUMKADAVILA VIA., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. RESPONDENTS: --------------- 1. KESAVA PANICKER VISWAMBHARAN, VELAMKUZHI KIZHAKKINKARA PUTHEN VEEDU, KOVILNEDUNGODU DESOM, ANAVOOR VILLAGE, KOTTAIKKAL P.O., PERUMKADAVILA VIA., NEYYATTINKARA, THIRUVANANTHAPURAM. 2. KESAVA PANICKER RAMABHADRAN, KADAYARA PUTHEN VEEDU, PALIYODU, KOVILNEDUNGODU DESOM, ANAVOOR VILLAGE, KOTTAIKKAL P.O., PERUMKADAVILA VIA., NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1-2 SRI.A.R.DILEEP FOR R1-2 SMT.SURYA SASI FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WPC 33364/08) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.788/93. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANTS 22, 23, AND 25 IN O.S.NO.788/1993. EXT.P3: TRUE COPY OF I.A.NO.643/1999 IN O.S.NO.788/1993. EXT.P4: TRUE COPY OF THE I.A.NO.4974/06 IN O.S.NO.788/93. EXT.P5: TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN I.A.NO.643/99 IN O.S.NO.788/93. EXT.P6: TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONERS IN I.A.NO.4974/06 IN O.S.NO.788/93. EXT.P7: TRUE COPY OF THE COMMON ORDER IN I.A.NOS.643/99 AND 4974/06 IN O.S.NO.788/93 PASSED BY THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33364 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 12th October, 2009 JUDGMENT The Writ Petition is filed seeking the following relief: “To set aside Exhibit P7 order and dismiss Exhibits P3 and P4 applications.” 2. Petitioners are the additional plaintiffs 2 to 4, the legal heirs of the deceased first plaintiff, in O.S.No.788 of 1993 on the file of the Principal Munsiff Court, Neyyattinkara. Suit is one for partition, and the respondents are the 23rd and 25th defendants. Challenge in the Writ Petition is against P7 order passed by the learned Munsiff allowing two applications moved by the respondents, 23rd and 25th defendants, to amend their written statement. 3. The predecessor of the present petitioners, the first plaintiff, and also defendants 1 to 3, are the children of late Kesava Panicker through his first wife, and the 22nd defendant is his second wife and defendants 23 to 30 are children from his second wife. Predecessor of the petitioners, Kesava Panicker Sukumara Panicker (late), had instituted the above suit as the sole plaintiff seeking partition and separate possession from A schedule property, which has an extent of W.P.C.No.33364/08 - 2 - 10 acres of land, as separately scheduled in consonance with the provisions of a registered sale deed of 1963. Title and possession over the properties so scheduled separately from 'A' schedule is alleged to have been obtained by that plaintiff along with defendants 1 to 3 in the suit under the above sale deed. Over and above a decree for partition, rather separate possession by way of declaration in tune with the rights covered by the sale deed, other reliefs of injunction, mesne profits etc. are also claimed against the defendants impleaded in the suit, a reference to which in extenso for disposing of this Writ Petition is not relevant. Challenge in the Writ Petition is confined to P7 order of the court below allowing two applications of the defendants 23 and 25 moved to amend their previous written statement, for raising new pleas of defence to resist the suit claim. 4. Suit claim in a nutshell, and the contentions raised in the previous written statement by the defendants 23 and 25, with those canvassed by the amendment allowed alone need be looked into for disposing this petition. Plaint A schedule property is described as having an extent of 10 acres of land. By virtue of a registered sale deed in the year 1963, the plaintiffs and defendants 1 and 2 got right W.P.C.No.33364/08 - 3 - and title over specific areas in the A schedule property was the case of the plaintiffs to seek separate possession after demarcation of the extent of the property in his favour along with some other additional reliefs over separate schedules of property related thereto. The defendants 22, 23 and 25 filed a joint written statement resisting the suit claim. A lease in favour of late Kesava Panicker, the common predecessor of the plaintiffs, defendants 1 and 2 and also these defendants over a portion of A schedule property before the registered sale deed relied by the plaintiff was canvassed apart from raising other contentions disputing the title of the plaintiff and further contending that their title, if any, had been lost by hostile and animus possession and enjoyment of the property by these defendants and their predecessor. The defendants have prescribed title by adverse possession was also raised to challenge the suit claim. These defendants filed the written statement raising their contentions on 2.6.1994. Five years later, two of the above defendants, 23 and 25 defendants, the present respondents, filed P3 and P4 applications for amending their written statement to incorporate some additional defences to resist the suit claim. In P3 application, they claimed fixity of tenure over the property covered by W.P.C.No.33364/08 - 4 - the lease deed and sought for raising an issue on that claim and its reference to the Land Tribunal for determination under the provisions of the Kerala Land Reforms Act. In P4 application adverting to some previous cases, these defendants wanted to incorporate an additional defence that the suit is barred by issue estoppel in view of the decisions in the previous judicial proceedings. Both these applications were opposed to by the plaintiff by filing P6 objections. Learned Munsiff, after hearing both sides, allowed the amendment applications vide P7 order holding that inconsistent pleas can be taken by the defendant to resist the suit claim, and further the amendments would amount only to clarification of what had been already set forth in the previous written statement filed by these defendants. Propriety and correctness of P7 order is challenged in the Writ Petition by the additional plaintiffs invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 5. I heard the counsel on both sides. Learned counsel for the petitioners/additional plaintiffs contended that by the amendment canvassed, and allowed by the court below, the defendants/respondents wanted to incorporate pleas conflicting with the defences raised in their previous written statement and in seeking W.P.C.No.33364/08 - 5 - such amendments the specific admissions made earlier in the previous written statement are sought to be withdrawn and nullified. Allowing of the amendments under P7 order by the court below, it is submitted, has caused serious prejudice and injury to the petitioners/plaintiffs. On the other hand, the learned counsel for the respondents/additional defendants 23 and 25 contended that by the amendment these respondents only supplemented further details of what had been already set forth in their previous written statement. In the previous written statement too the plea of fixity of tenure of these defendants is borne out, but there was omission to claim it specifically. Alternate pleas of defence, one divergent and different from the other, it is submitted, can be canvassed by the defendants in their written statement to resist the suit claim. There is no ground whatsoever to interfere with P7 order allowing the amendments by the court below is the further submission of the learned counsel. 6. Having heard the counsel on both sides at some length with reference to P7 order challenged in the Writ Petition, and taking note of the exhibits produced, I find the learned Munsiff has not correctly and properly appreciated the question whether the amendments sought for belatedly by the respondents/defendants are permissible W.P.C.No.33364/08 - 6 - under law. The tenor and substance of the previous written statement of these defendants would indicate they have set up a hostile title disputing the claim of title and right of the plaintiff and the first and second defendants over specified portions as scheduled in the suit. A previous suit for recovery of possession of the property under the enjoyment of late Kesava Panicker was also canvassed to contend that despite a decree being passed in such suit, recovery was not effected. That suit was instituted after the commencement of the Land Reforms Act and late Kesava Panicker, a defendant in the suit never set forth a plea of fixity of tenure over the leaseholding was not at all taken note of as to how far these defendants are capable of setting forth a claim of fixity of tenure and seeking reference to the Land Tribunal, that too by way of an amendment of the previous written statement filed five years ago. I find much force in the submissions made by the learned counsel for the petitioners/additional plaintiffs that specific admissions made in the previous written statements are sought to be nullified under the amendments proposed. I refrain from making further comments over such aspects as any dilation on the merits of the case with reference to the pleadings of the parties by this court may result in prejudice or W.P.C.No.33364/08 - 7 - injury to one or other side in the rendering of a decision after adjudication by the trial court. However, it has to be pointed out that claiming leasehold right over a portion of the suit property and then setting forth a plea of adverse possession disputing the title of the lessor cannot go together. Even if such contentions are raised in the written statement, the defendants have to elect one or the other as such contentions are mutually conflicting and contradictory. By way of the amendments to the previous written statement, that too canvassed at a belated stage, these defendants wanted to lend support to the claim of enjoyment of the property in continuation of the leasehold right in favour of the common predecessor of the parties, late Kesava Panicker, despite setting forth a challenge disputing the title of the first plaintiff and defendants 1 and 2 on various grounds. Similar is the case of issue estoppel canvassed to resist the suit claim based on the admissions alleged to have been made by the deceased first plaintiff in O.S.No.1683 of 1968. The decision rendered in a previous suit, admissions made thereunder by the present first plaintiff in such suit, and also of the lease subsisting over a portion of the property, had been suppressed in the suit, according to these defendants, and it has been canvassed to raise W.P.C.No.33364/08 - 8 - additional plea of estoppel barring the plaintiffs from seeking the reliefs claimed. These are all matters for evidence on the basis of the materials to be tendered in the case and such pleas cannot be allowed to be canvassed belatedly after filing of a written statement five years ago. In the given facts of the case, P7 order cannot be sustained and it is liable to be set aside. I do so. Amendments, if any, carried out in the joint written statement filed by defendants 23 to 25 by virtue of P7 order shall stand struck off. The court below is directed to give the suit top priority in hearing taking note it continues on its file for more than a decade and a half awaiting a decision after trial. Writ Petition is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE