IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 OP(C).No. 3704 of 2011(O) --------------------------------------- I.A.6826/2010 IN OS.320/2007 OF I ADDITIONAL SUB COURT,ERNAKULAM .................... PETITIONERS: --------------------- 1. V.P. RASHEED, S/O.PAREED KHAN, KAYA MANZIL, N.H. BYE PASS, EDAPPALLY, COCHIN-24. 2. BEENA RASHEED, W/O.V.P. RASHEED, KAYA MANZIL, N.H. BYE PASS, EDAPPALLY, COCHIN-24. BY ADV. SRI.T.M.SUNIL, SMT.S.CHITHRA, SRI.SHAIJAN C.GEORGE. RESPONDENT(S): -------------------------- 1. V.P. SHIYAD, S/O.PAREED KHAN, KAYA MANZIL, S AND S LANE, KATHRIKADAVU ROAD, THAMMANAM P.O., COCHIN-682 032. 2. THRIKKAKKARA GRAMA PANCHAYAT REP. BY ITS SECRETARY, THRIKKAKARA, COCHIN-682 021. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3704 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF AMENDMENT PETITION IA.6826/2010 IN OS.320/2007. EXHIBIT P2: TRUE COPY OF COUNTER FILED IN IA.6826/2010 IN OS.NO.320/2007. EXHIBIT P3: TRUE COPY OF ORDER DT.22/1/2011 IN IA.6826/2010. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3704 of 2011 -------------------------------------- Dated this the 22nd day of November, 2011. JUDGMENT Ext.P3, order passed by the learned Additional Sub Judge-I, Ernakulam on 22.01.2011 on I.A.No.6826 of 2010 in O.S.No.320 of 2007 is under challenge. By the said order, 1st respondent/plaintiff was allowed to amend the plaint to incorporate a plea of easement by way of necessity and prescription. 2. Learned counsel for petitioners contend that on the averments, no plea of easement by way of necessity at any rate, prescription would lie. It is also contended by the learned counsel that the suit as originally filed is for partition and fixation of boundary and in the circumstances a plea of easement by way of necessity or prescription does not arise. 3. The main reliefs prayed for in the plaint are partition of item Nos.2 to 6, fixation of boundary of item Nos.7 and 8 and consequential injunction. There are certain other reliefs also prayed for. According to the 1st respondent/plaintiff , item Nos.1 to 6 belong to him and the 1st petitioner/1st defendant jointly. Item Nos.7 and 8 belong to the 1st respondent/plaintiff absolutely. The property on the east of item Nos.7 and 8 belongs to the 1st petitioner/1st defendant absolutely and on north of item No.2 belongs to the 1st petitioner/1st defendant. It is further averred that item No.1 is a common pathway with bridge facility across the thodu running on the west of the entire block of OP(C)No.3704/2011 2 property and that the bridge was jointly constructed by the 1st respondent/plaintiff and 1st petitioner/1st defendant. Item No.1 remained as joint property. Ext.P1 is the application for amendment. In paragraph 4 it is stated that item No.1 belongs to the 1st respondent/plaintiff and the 1st petitioner/1st defendant and that item No.1 is on the west of thodu. 1st respondent/plaintiff and 1st petitioner/1st defendant jointly constructed a bridge across the said thodu. Item No.1 is in the co-ownership of 1st respondent/plaintiff and 1st petitioner/1st defendant with a joint right of easement of passage over the property detailed in paragraph 10 of the plaint (that appears to various portions of item No.1). Item No.1 which is retained as road access with common bridge on measurement is seen to be ending almost at the south-western corner of the property exclusively belonging to the 1st petitioner/1st defendant as per document No.1585 of 1997 which fact the 1st respondent/plaintiff got information only recently. It is also stated that property on the south of property independently belonging to the 1st petitioner/1st defendant is item No.2 which belong to the 1st respondent/plaintiff and 1st petitioner/1st defendant jointly. In paragraph 8 it is stated that right of access through the five metres wide road in continuation of road (item No.1) through item No.2 to reach upto item No.7 is carved out. Such a right of easement by necessity and prescription is available and necessary, according to the 1st respondent/plaintiff. It is on the basis of that averment amendment is sought for. OP(C)No.3704/2011 3 4. Though it is contended that no plea of easement by way of necessity and prescription would simultaneously arise, it is not necessary that at the time of considering the application for amendment the court should decide the merit of the reliefs sought to be incorporated by amendment. That is a matter to be decided in the course of trial. It is open to the petitioners to file additional written statement in answer to the amended plaint. In that view of the matter I do not find reason to interfere with the impugned order. Original Petition is accordingly dismissed. THOMAS P.JOSEPH, Judge. cks