IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 OP(C).No. 2453 of 2011(O) ------------------------- OS.516/2007 of ADDL.MUNSIFF COURT, IRINJALAKUDA .................... PETITIONERS ---------------------- 1. KITTAPPAN, AGED 76, S/O.KARUMANTHRA KRISHNAN, R S ROAD, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK. 2. GIRIJA, W/O.KITTAPPAN, KARUMANTHRA HOUSE, R S ROAD, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV.S SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): -------------------------- 1. MADHAVI, W/O.PANANCHERY RAJAN, R S ROAD, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK - 680 121. 2. MAYA, D/O.KITTAPPAN, KARUMANTHRA HOUSE, R S ROAD, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK - 680 121. BY ADV. SRI.RANJITH THAMPAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2453 of 2011(O) ------------------------------------ APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1.COPY OF THE PLAINT IN OS NO.516/07 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA DT. 7.4.07. EXT.P2. COPY of the WRITTEN STATEMENT WITH A COUNTER CLAIM FILED IN EXT. P1. DT.24.7.07. EXT.P3. COPY OF THE REPLICATION OF THE PLAINTIFFS IN EXT.P1 SUIT DT. 16.10.2008. EXT.P4. COPY OF THE AMENDED COUNTR CLAIM DT. 24.7.07. EXT.P5. COPY OF THE COMMISSIONER'S REPORT AND PLAN IN EXT. P1. SUIT DT. 27.9.2010. EXT.P6. COPY OF IA NO.4040/2010 IN EXT.P1 SUIT DT. 31.10.2010. EXT.P7. COPY OF IA NO.438/2011 IN EXT.P1 SUIT DT. 28.1.2011 ON THE FILE OF THE ADDL. MUNSIFF COURT, IRINJALAKUDA. EXT.P8. COPY OF THE ORDER PASSED IN IA NO4040/2010 IN OS. NO.516/07 DT. 24.6.2011 ON THE FILE OF THE ADDL. MUNSIFF COURT, IRINJALAKUDA. EXT.P9. COPY OF THE ORDR PASSED IN IA NO.438/2011 IN EXT.P1 SUIT DATED24.6.2011 ON THE FILE OF THE ADDL. MUNSIFF COURT, IRINJALKUDA. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2453 of 2011 --------------------------------------- Dated this 08th day of August, 2011 JUDGMENT Exts.P8 and P9, orders passed by the learned Additional Munsiff, Irinjalakkuda in O.S.No.516 of 2007 are under challenge in this proceeding. Petitioners filed the suit for a decree for prohibitory injunction against the first respondent in respect of item Nos.1 and 2, item No.1 being 10 cents (belonging to the petitioner) and the car shed adjoining it situated in item No.1 and a portion of property of first respondent on the north, and item No.2 being 13½ cents belonging to the second petitioner. According to the petitioners, property of first respondent is situated on the north of item Nos.1 and 2. Petitioners filed the suit for prohibitory injunction restraining the first respondent from interfering with item Nos.1 including the car shed, a portion of which is allegedly situated in the property of the first respondent and item No.2 or, first respondent causing obstruction to the petitioners putting up boundary wall beyond item Nos.1 and 2 including the car shed (a portion of which is allegedly situated in the property of first respondent). Petitioners claimed an irrevocable license with respect to that part of the car O.P(C).No.2453 of 2011 -: 2 :- shed situated in the property of the first respondent. First respondent filed written statement and a counter claim for fixation of boundary between the counter claim schedule property – 9¼ cents and property of petitioners and alternatively, for recovery of possession of any portion of the property belonging to the first respondent, if found in the possession of petitioners. In the meantime the Advocate Commissioner submitted Ext.P5, report and plan on 27.09.2010 where a small portion (belonging to the first respondent) was shown to be in the possession of petitioners and the second respondent, their daughter (who is impleaded by the first respondent in the counter claim as additional third defendant). Thereon, petitioners and third respondent filed Ext.P6, application to amend their replication to the counter claim to incorporate a plea of adverse possession and limitation in respect of the small area adjoining the car shed which as per Ext.P5, report and plan was reported to be in the possession of petitioners and the second respondent. That application was opposed by the first respondent on various grounds including that if the application is allowed, it would take away the admission made by the petitioners regarding the property on the immediate north of the car shed and at any rate, O.P(C).No.2453 of 2011 -: 3 :- it will alter the nature and character of the suit and further, that the application was belated. Petitioners filed Ext.P7, application to appoint an Advocate Commissioner to note additional factors, namely, whether the car shed is a temporary structure and whether, the disputed portion beyond the car shed is being used by the second respondent (third defendant in the counter claim) as a way. Learned Munsiff dismissed Exts.P6 and P7, applications by Exts.P8 and P9, orders. Learned counsel for petitioners contend that having regard to the facts and circumstances amendment was necessary and no question of withdrawal of admission arose. It is also pointed out that at any rate admission cannot confer title on the first respondent over immovable property. Learned counsel for first respondent has asserted the arguments advanced in the court below. 2. I have gone through Ext.P8, order whereby the request for amendment of replication was disallowed by the learned Munsiff. In paragraph 5 of the said order it is stated that petitioners admitted the fact that they have no objection for fixation of boundary excluding the car shed which meant that they did not lay claim over any portion of property of first respondent beyond the car shed. But, the contention raised by O.P(C).No.2453 of 2011 -: 4 :- the petitioners in the plaint and replication is that a portion of the car shed is situated in the property of first respondent and that they have irrevocable license over that portion of the car shed. Advocate Commissioner pointed out that there was a small area on the north of the car shed which is in the possession of petitioners. It is thereon that petitioners wanted the replication to be amended to incorporate a plea of adverse possession and limitation regarding that portion of the property. I am not inclined to think that there is any admission on the part of petitioners which would defeat the request for amendment. I must also bear in mind that regarding the small portion of the land beyond the car shed the plea made by amendment is adverse possession and limitation which follows that first respondent was the original owner of the property which according to the petitioners is lost by adverse possession and petitioners acquired title by the law of limitation. I must also bear in mind that admission if any cannot confer title over immovable property in favour of the first respondent. 3. So far as refusal to appoint an Advocate Commissioner is concerned, in Ext.P9, order learned Munsiff has stated that it is belated. True, the application is a bit belated but, O.P(C).No.2453 of 2011 -: 5 :- for that reason alone the request need not have been disallowed since the additional matters required to be ascertained are necessary and relevant for adjudication of the dispute. Obviously to prove the irrevocable license with respect to the portion of car shed situated in the property of first respondent, petitioners wanted to show that the car shed is not a temporary structure and to sustain the claim of title by adverse possession over the small area reported by the Advocate Commissioner, petitioners wanted to ascertain whether the disputed portion is being used by the third respondent (third defendant) as a way. In these circumstances, I am inclined to think that court below ought to have allowed Exts.P6 and P7, applications. Resultantly this original petition is allowed in the following lines: (i) Exts.P8 and P9, orders are set aside. I.A.Nos.4040 of 2010 and 438 of 2011 in O.S.No.516 of 2007 of the Court of learned Additional Munsiff, Irinjalakkuda will stand allowed. Petitioners and the second respondent (if she is a party to the replication) shall carry out the amendment in the replication within two weeks from the date of receipt of a copy of this judgment in the trial court. O.P(C).No.2453 of 2011 -: 6 :- (ii) Learned Munsiff shall as far as possible appoint the same Advocate Commissioner on I.A.No.438 of 2011 for inspection and report on the additional matters required as above stated. (iii) The bata payable to the Advocate Commissioner shall be fixed by the learned Additional Munsiff. (iv) If the first respondent wants any additional factors to be noted through the Advocate Commissioner it is open to the first respondent to file work memo before the learned Munsiff who shall decide the matter and issue direction to the Advocate Commissioner. (THOMAS P JOSEPH, JUDGE) Sbna/-