IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 WP(C).No. 4358 of 2010(O) ----------------------------------- OS.798/2006 of ADDL. MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): ---------------------- K.SANKARAN, ULLADANCHIRA VELI, PERUNNERMANGALAM MURI, MARARIKULAM, NORTH VILLAGE, NOW AT JYOTHIS, KANICHUKULANGARA P.O., MARARIKULAM, NORTH VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.JOMY GEORGE SRI.M.J.BENNY SRI.SEBASTIAN THOMAS RESPONDENT(S): ------------------------ 1. ANANDAN, ULLADANCHIRA VELI, PERUNNERMANGALAM MURI, MARARIKULAM, NORTH VILLAGE, ALAPPUZHA DISTRICT. 2. SANTHAMMA, ULLADANCHIRA VELI, PERUNNERMANGALAM MURI, MARARIKULAM, NORTH VILLAGE, NOW W/O.RAGHAVAN, MACHINKAL VEEDU, KADAKKARAPALLY P.O., NORTH OF ILLICKKAL JUNCTION, CHERTHALA TALUK, ALAPPUZHA DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 4358 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the settlement deed. Ext.P2 :- Copy of the plaint. Ext.P3 :- Copy of the written statement. Ext.P4 :- Copy of the commission report and sketch. Ext.P5 :- Copy of the I.A.No.130/2009. Ext.P6 :- Copy of the learned Munsiff's Court was pleased to dismiss the application and the copy of the order dated 14.12.2009. Ext.P7 :- Copy of the application. Ext.P8 :- Copy of the learned Munsiff was pleased to dismiss the above application and the copy of the order. Ext.P9 :- Copy of the amendment application. Ext.P10 :- learned Munsiff was pleased to dismiss the I.A. Copy of the order of dismissal of the petition. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge N.K.BALAKRISHNAN, J. -------------------------------- W.P.(C) No.4358 of 2010 --------------------------------- Dated this the 10th day of January 2011 J U D G M E N T The plaintiff in O.S.798/2006 of Munsiff Court, Alleppy has filed this writ petition under Article 227 of the Constitution of India challenging Exts.P8 and P10 orders passed by the learned Munsiff. As per Ext.P9 the plaintiff sought amendment of the plaint. The suit was originally laid for fixation of boundary and for injunction against the defendants from trespassing into the plaint schedule property. A commission was taken out to identify the properties. The defendants are the brother and sister of the plaintiff. It is stated that properties were allotted to the plaintiff and defendants as per Ext.P1 settlement deed of 1981. It is submitted by the learned counsel for the petitioner that the southern most plot which is abutting the W.P.(C) No.4358 of 2010 -: 2 :- road was allotted to the first defendant. For the purpose of widening the road a small portion of the land from the defendant's plot was taken over by the authorities concerned. The plaintiff contends that due to taking over of the land for formation of the road, the defendant has encroached upon and reduced a small portion of the plaintiff's property to the wrongful possession of the defendants and as such the plaintiff has, by Ext.P9 application sought recovery of possession of that portion. 2. The learned Munsiff dismissed the petition stating that the cause of action shown in the amendment petition and the date on which the defendant was stated to have encroached or reduced a small portion of the plaintiff's property was shown as 26-11-2006. The cause of action shown in the plaint is 27-11-2006. Stating that the cause of action for recovery of possession was available to the plaintiff at the time when the original suit was laid, the petition for amendment was disallowed. The very W.P.(C) No.4358 of 2010 -: 3 :- purpose of amendment of plaint seeking recovery of possession is to avoid multiplicity of suit. It is also to be borne in mind that property was inspected by the Advocate Commissioner and plans were produced by him. Though there is objection with regard to reports and plans, it is seen that the plaintiff has taken steps to prove his case. There is another prayer seeking relief of declaration of easement right by necessity over a small strip of land. The plaintiff contends that the cause of action with regard to the easement of necessity arose on severance of tenements; by virtue of the settlement deed. The other prayer sought to be incorporated in the amendment petition is to allow the plaintiff to construct a compound wall or fence separating item No.1 from item Nos.2 and 3 properties. That relief would depend upon the boundary to be fixed as per the relief sought for in the plaint. In other words, it is a consequential relief that is being claimed. 3. It is seen that the learned Munsiff has not W.P.(C) No.4358 of 2010 -: 4 :- approached the issue in the correct perspective, but is seen to be too technical. The endeavour of the Court should be to do justice to the parties and to avoid driving the parties to another litigation. By allowing amendment, no prejudice would be caused to the defendant. It would avoid multiplicity of suit. 4. Though the defendants were served with notice nobody appeared before Court. In order to advance the cause of justice, I find that petition for amendment has to be allowed. 5. There is also a prayer to set aside the Commissioner's report and plan and to issue a fresh commission. That prayer cannot be straight away allowed. If the plaintiff is aggrieved by the reports and plans filed by the Commissioners or Surveyors, the plaintiff has to adduce evidence with regard to the same. Since the plaintiff would get opportunity to examine the Advocate Commissioner or the Surveyor before the court below at the time of trial the W.P.(C) No.4358 of 2010 -: 5 :- plaintiff can do so, if he is so advised. At this stage, I find no reason to allow the prayer for setting aside the Commissioner 's report and plan. But it is made clear that after evidence is adduced in the trial regarding the acceptability or correctness of the report or otherwise, if the court finds that the report is unacceptable and that a further report is necessary for a proper adjudication of the matter then the learned Munsiff will be justified in getting the report set aside or to get a further report. In the result, this writ petition is allowed to the extent indicated earlier. N.K.BALAKRISHNAN, JUDGE. Jvt