IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).NO. 1139 OF 2010(O) -------------------------------------- AGAINST THE ORDER IN IA 5928/10 & 5929/10 IN OS.1791/2009 OF I ADDL.M.C.,THRISSUR .................... PETITIONER: -------------------- DEVASSYKUTTY,S/O.CHITTILAPPILLY VARUNNY, MUNDAMBILLY DESOM,KILLANNUR VILLAGE,THRISSUR TALUK. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENT(S): ------------------------- 1. JOSEPH,S/O.ALOOR CHACKU,THIRUR DESOM, KOLAZHY VILLAGE, THRISSUR TALUK. 2. USHA,W/O.ALOOR JOSEPH,THIRUR DESOM, KOLAZHY VILLAGE, THRISSUR TALUK. ADV. SRI.K.A.SREEJITH FOR R1 &2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.1139 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 1.8.2009 IN O.S. NO.1791 OF 2009 OF THE FIRST ADDITIONAL MUNSIFF'S COURT, THRISSUR. EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT DATED IN DO. DO. DO. EXHIBIT P3 TRUE COPY OF ORDER DATED 25.6.2010 ON I.A. NO.5928 OF 2010 IN DO. DO. DO. EXHIBIT P4 TRUE COPY OF ORDER DATED 27.5.2010 ON I.A. NO.5929 OF 2010 IN DO. DO. DO. EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT DATED 2.8.2010 IN I.A. NO.5928 OF 2010 IN DO. DO. DO. EXHIBIT P6 TRUE COPY OF DO. DATED DO. IN I.A. NO.2929 OF 2010 IN DO. DO. DO. EXHIBIT P7 TRUE COPY OF ORDER DATED 4.11.2010 ON I.A.NO.5928 OF 2010 IN DO. DO. DO. EXHIBIT P8 TRUE COPY OF ORDER DATED DO. ON I.A. NO.5929 OF 2010 IN DO. DO. DO. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1139 of 2010 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T Defendant in O.S. No.1791 of 2009 of the court of learned Additional Munsiff-I, Thrissur is the petitioner before me challenging Exts.P7 and P8, orders on I.A. Nos.5928 and 5929 of 2010 dated November 04, 2010. That is a suit for recovery of possession on title filed by the first respondent based on an alleged termination of licence in favour of petitioner. In the written statement petitioner denied case of first respondent and claimed title by adverse possession. While so, first respondent filed Exts.P3 and P4, applications above stated, to implead the second respondent as additional plaintiff and for amendment of the plaint stating that property was given on licence to the petitioner, that period expired by 08.12.2008 and hence respondents are entitled to get a decree for mandatory injunction and in the alternative recovery of possession on the strength of title. It is also stated in the application for amendment that at a time the first respondent was sick, he executed gift deed in favour of the second respondent (his wife) on July 10, 1996, possession of the property O.P(C) No.1139 of 2010 -: 2 :- was not given to the second respondent and while so, the first respondent again fell sick. Then, possession of the property was given to the second respondent and thus the gift took effect by May 17, 2010. Mutation of the property was effected in the name of the second respondent. Petitioner opposed the application on the ground that gift deed relied on by the respondents is fraudulent. Various other contentions were also raised. Learned Munsiff allowed the applications. It is contended by learned counsel that it is without stating sufficient reason that the applications were allowed. It is also contended that in the plaint as originally filed, there is no mention about title claimed by the second respondent based on the gift deed in question. 2. So far as the order on I.A No.5929 of 2010 is concerned learned Munsiff has not extensively stated about the circumstances under which the application is allowed but observed that second respondent is to be impleaded as title holder of the property. That in effect is the essence of the claim made by the first respondent in I.A. No.5929 of 2010. The suit was filed in the year 2009 while gift deed was executed in 10.07.1996. As per the affidavit in support of the application for amendment it is the version of respondents that in spite of the gift O.P(C) No.1139 of 2010 -: 3 :- deed first respondent continued to be in possession and that possession was given to the second respondent only on May 17, 2010 during the pendency of suit and thereon second respondent effected mutation in her name. In these circumstances the mere fact that averments sought to be incorporated by way of amendment are not mentioned in the plaint is no reason for rejecting the applications. I do not find reason to interfere with the impugned orders. But it is made clear that it is open to the petitioner to file additional written statement (if not already filed) taking appropriate contentions with regard to the amended plaint. Original Petition is disposed of with the above observation. THOMAS P. JOSEPH, JUDGE. vsv