IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 32562 of 2009(O) -------------------------- OS.1700/2008 of I ADDL.MUNSIFF COURT,TRIVANDRUM .................... PETITIONERS: --------------- 1. J. JOYICHAN @ JOY, S/O. LATE JACOB DANIEL, AGED 53 YEARS, VATTAVILA VEEDU, T.C 65/230, THIRUVALLAM.P.O, THIRUVANANTHAPURAM. 2. AMMINI, W/O.JOYICHAN, AGED 50 YEARS, VATTAVILA VEEDU, T.C 65/230, THIRUVALLAM.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SMT.M.JAYASREE RESPONDENTS: --------------- 1. JANAMMA, W/O. LATE JACOB DANIEL, GRACE VILASOM, CHETTIKKUNU, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM. 2. GRACE @ MAYA, D/O. JANAMMA, AGED 48 YEARS, RESIDING AT SREELAKSHMI, CHETTIKKUNNU, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32562 of 2009 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.1700 OF 2008 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DTD. 27.09.2008 EXHIBIT P2 : WRITTEN STATMENT WITH COUNTER CLAIM FILED BY the RESPONDENTS IN O.S.No.1700 OF 2008 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM EXHIBIT P3 : REPLICATION FILED BY the 1st PETITIONER IN IN O.S.No.1700 OF 2008 DTD. 09.06.2009 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM EXHIBIT P4 : AMENDMENT PETITION FILED BY THE PETITIONERS AS I.A.No.4353 OF 2009 IN IN O.S.No.1700 OF 2008 DTD. 09.06.2009 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM EXHIBIT P5 : STATEMENT OF OBJECTION FILED BY THE RESPONDENTS IN I.A.No.4353 OF 2009 IN IN O.S.No.1700 OF 2008 DTD. 09.06.2009 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM EXHIBIT P6 : ORDER DTD. 21.08.2009 UB I.A.No.4353 OF 2009 IN IN O.S.No.1700 OF 2008 PASSED BY the 1st ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM RESPONDENTS' EXHIBITS: NIL True Copy P. A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.32562 of 2009 --------------------------------------- Dated this 19th day of July, 2010 JUDGMENT Respondents appear through counsel. 2. This writ petition is in challenge of Ext.P6, order dated 21-08-2009 on I.A.No.4353 of 2009 in O.S.No.1700 of 2008 of the court of learned Additional Munsiff-II, Thiruvananthapuram. Petitioners/plaintiffs sought for amendment of plaint and application for injunction to incorporate correct survey number and description of the suit property and also to incorporate a plea in the plaint that petitioners have perfected title over the suit property by adverse possession and limitation and seeking a declaration in that line. Application was dismissed by the learned Sub Judge as per Ext.P6,order holding that since petitioners have admitted title of respondents, amendment sought for is inconsistent with that admission of title and hence amendment if allowed would cause inconvenience to the respondents as the nature of the suit itself will be changed. Learned counsel for petitioners contends that what is sought to be incorporated by amendment is not an inconsistent plea but an alternative plea and that amendment sought for ought to have W.P.C.No.32562 of 2009 : 2 : been allowed to avoid multiplicity of suits. Learned counsel for respondents contend that in so far as petitioners have in specific terms admitted title of respondents plea sought to be incorporated by amendment could not be allowed. 3. Petitioner No.1 is the son of respondent No.1. Petitioner No.2 is the wife of petitioner No.1. Respondent No.2 is another daughter of respondent No.1. Property described in the plaint schedule is 8 cents and building in old survey 144/1 and R.S. 189/11, stated to be part of 40¾ cents in old survey 144/1 which originally belonged to respondent No.1/defendant No.1 and her husband (father of petitioner No.1 and respondent No.2) the late Jacob Daniel. It is the case of petitioners that regarding the said 40¾ cents there was a partition as per document No.2159 of 1976 and the A schedule therein – 20 cents was alloted to respondent No.1 while the remaining 20¾ cents was divided into 8 equal shares. The suit property forms part of the said 20¾ cents. Petitioners stated that from 1984 onwards they are in absolute possession and enjoyment of the suit property they having constructed a house in the said property in the year 1984 and are residing therein. It is also stated that they are in uninterrupted possession and enjoyment of the said property as its absolute owners. Apprehending that respondents might W.P.C.No.32562 of 2009 : 3 : forcibly evict them, petitioners field O.S.No.1700 of 2008 and prayed for a decree for prohibitory injunction against forcible dispossession and trespass into the said property. Respondents resisted the suit contending that respondent No.2 is the absolute owner in possession of 2.835 ares in survey 144/1 as per gift deed No.88 of 1985 executed in her favour by respondent No.1. Respondents claimed that respondent No.2 constructed a small hut in the said property and permitted petitioners to stay in that hut on condition that they would vacate the property as and when they constructed a building in the 3 cents belonging to petitioner No.1. Respondents made a counter claim to direct petitioners to vacate the suit property and the building. Petitioners filed Ext.P3, replication asserting averments in the plaint and contending that right from 1984 onwards, petitioners are in absolute possession and enjoyment of the suit property on the premise that petitioner No.1 is its absolute owner. Later, petitioners filed Ext.P4, application for amendment of plaint and application for injunction to correct the survey number and description of the suit property and to incorporate paragraph 10(a) in the plaint to the effect that petitioner No.1 has perfected title over the suit property by adverse possession and limitation and seeking a relief of declaration in that line. Court fee portion and valuation of the W.P.C.No.32562 of 2009 : 4 : plaint are also sought to be amended accordingly. Application was resisted by respondents contending that in so far as in paragraph 11 of plaint petitioners admitted that the suit property is ancestral property, they are not entitled to deviate from that plea and raise a plea of adverse possession and limitation. It is contended by learned counsel for petitioners that amendment if allowed would not change character and nature of the suit and that it is open to the petitioners to plead alternatively that petitioner No.1 perfected title by adverse possession and limitation. 4. It is true that in paragraph 11 of the plaint it is stated that suit property is ancestral property of petitioner No.1 but, he has also pleaded that from 1984 onwards he is in absolute possession and enjoyment of the said property having constructed a house in the said property in the year 1984. The Supreme Court in L. N. Aswathama & Anr. Vs. P. Prakash (2009 SAR (Civil) 684) has held that a plea of title and adverse possession are not inconsistent but, only alternative claims. If one fails to establish title, his possession would still be adverse to the true owner. There is therefore no bar in petitioners making an alternative claim in the plaint that apart from whatever title they have admitted, petitioner No.1 has perfected title by adverse W.P.C.No.32562 of 2009 : 5 : possession and limitation. Nor am I persuaded to think that if amendment is allowed that would change character and nature of the suit. For the suit continues to be one for decree for prohibitory injunction though, by way of amendment a relief of declaration of title on the strength of adverse possession and limitation is also sought for by the petitioner. Having regard to the facts and circumstances, I am inclined to think that learned Munsiff ought to have allowed the amendment prayed for. 5. It is pointed out by learned counsel for respondents that request for amendment includes corrections in the affidavit as well. I make it clear that the question of amendment of affidavit does not arise though, it may be open to the petitioner to file fresh affidavit as provided under law. Resultantly this writ petition is allowed and Ext.P6, order is set aside. I.A.No.4353 of 2009 is allowed. Petitioners shall carry out amendment within 14 days from this day or within such time as may be extended by learned Munsiff. Needless to say that respondents are entitled to file additional written statement in answer to the amended plaint. (THOMAS P JOSEPH, JUDGE) Sbna/-