IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 FAO.No. 52 of 2008() -------------------- AS.81/2007 of SUB COURT, MUVATTUPUZHA OS.220/2004 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. PAULOSE, AGED 60 YEARS. S/O.PALLY, MARACHERILPUTHAYAM HOUSE, PIRAKKUNNAM KARA KUTTAMANGALAM VILLAGE 2. JOSEPH, S/o.OUSEPH, AGED 54 YEARS, KUTHANATTIL HOUSE, NERIAMANGALAM KARA, NERIAMANGALAM VILLAGE BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT/APPELANT/PLAINTIFF -------------------------------------------- BIJU JOSEPH, AGED 41 YEARS, S/O.JOSEPH KANDATHIL HOUSE, THAZHUVAMKUNNU KARA, KALLOORKADU VILLAGE, NOW RESIDING AT KUTTAMANGALAM KARA, KUTTAMANGALAM KARA. ADV. SRI.MATHEW JOHN (K) FOR R1 SRI.AJEESH K.SASI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO. 781/08 & 3606/08 IN FAO 52/08 DISMISSED 20/3/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ F.A.O.NO.52 OF 2008 ------------------------------------------ Dated 20th March 2009 JUDGMENT Defendants in O.S.220/2004 on the file of Munsiff court, Muvattupuzha are the appellants. Respondent is the plaintiff. Respondent instituted the suit for permanent prohibitory injunction and damages. Plaint schedule property admittedly originally belonged to the father of the first appellant under Ext.B2 sale deed. He in turn assigned it under Ext.B3. By change of hands, it vested with Philomina under Ext.B6 and respondent purchased it under Ext.A1 sale deed. Respondent claimed a decree for injunction contending that he is in possession of the plaint schedule property. Appellants resisted the suit contending that the property assigned by the father which was later obtained by the respondent is only 50 cents and not 52 cents, as shown in the plaint. Appellants also contended that in continuation of a way which exists to the east of the plaint schedule property, a way passes towards west and respondent has FAO 52/08 2 no right or possession to that portion of the property. A commission was taken out and the Commissioner submitted Exts.C1 and C2 reports and C1(a) and C2(a) plans. Based on the reports and plans, plaint was amended showing the extent of the plaint schedule property as 53.126 cents instead of 52 cents. Learned Munsiff on the evidence found that respondent is not entitled to the decree for injunction, as he failed to establish his possession to the extent 53.126 cents as claimed in the amended plaint. Respondent challenged the judgment before Sub court, Muvattupuzha in A.S.81/2007. Before the first appellate court, respondent filed I.A.1778/2007 under Rule 17 Order VI of Code of Civil Procedure for permission to amend the plaint. Amendment sought for was to incorporate an additional contention in paragraph 5 of the plaint to the effect that predecessor in interest of the respondent had given the plaint schedule property without measuring the same and property which was obtained possession under Ext.A1 is the plaint schedule property within the four boundaries shown therein and even though the extent shown in Ext.A1 is 50 cents the actual extent is the extent included within the four boundaries which is 53.126 cents. FAO 52/08 3 Respondent contended that though plaint was amended substituting 52 cents to 53.126 cents, this recital was omitted to be pleaded originally. Appellants filed the objection contending that respondent is not entitled to get the plaint amended at a later stage and thereby take away the admission made before the trial court and at the belated stage it cannot be allowed. Learned Sub Judge on hearing the appeal found that as the details stated in the proposed amendments were not incorporated at the time of amending the plaint, in the interest of justice application is to be allowed. Therefore, I.A.1778/2007 was allowed. Plaint was allowed to be amended. Learned Sub Judge found that appellants have to be permitted to file additional written statement. Finding that in the light of the amendment further opportunity is to be granted to the parties to adduce evidence suit was remanded. Order of remand is challenged in this appeal. 2. Learned counsel appearing for appellants and respondent were heard. 3. Argument of learned counsel appearing for appellants is that when the trial court found that respondent did not establish his possession to 53.126 FAO 52/08 4 cents of plaint schedule property, learned Sub Judge should not have allowed the plaint to be amended incorporating the plea that plaint schedule property was not measured at the time of its purchase under Ext.A1 and he had obtained possession of the property within the boundaries and thereby allowed the respondent to take away the admission made at the time of evidence. Learned counsel relying on the decision of the apex court in Ajendraprasadji N.Pande & Anr. v. Swami Keshavprakeshdasji N.Ors. (JT 2007(1) SC 579) argued that at the belated stage, permission should not have been granted to amend the plaint, when the fact should have been incorporated in the plaint when the amendment was originally allowed by altering the extent of plaint schedule property. Learned counsel argued that in any case, order of remand after permitting the plaint to be amended, without considering the appeal on merit is unsustainable. 4. Learned counsel appearing for respondent argued that suit is only for injunction and even though extent was altered by amending the plaint, the boundaries of the property were not amended and it was the consistent case of the respondent that plaint FAO 52/08 5 schedule property has been in the possession of the respondent having obtained under Ext.A1 and therefore the amendment was necessitated only in the absence of necessary pleadings in the plaint when extent was altered by amendment of the plaint and in such circumstances, there is no reason to interfere with the order passed in I.A.1778/2007 or order of remand. Learned counsel also argued that in case, it is found that a remand was not warranted appeal itself may be disposed. 5. Suit is only one for injunction. No issue on title was raised or decided or sought to be decided. Respondent is entitled to a decree for injunction provided he establishes his possession of the plaint schedule property. What is contended by the respondent in the plaint itself was that he obtained the plaint schedule property under Ext.A1. Though the extent of plaint schedule property shown was 52 cents, the Commissioner identified the property and submitted the reports and plans. As per re-survey plan showing the extent of item No.1 of the property covered under Ext.A1 is 53.126 cents. Respondent then got the extent of plaint schedule property amended to 53.126 cents. FAO 52/08 6 Boundaries of the plaint schedule property was not amended. Therefore, there is no change of plaint schedule property. When the suit is only for injunction and the question of title is not an issue, question whether the appellants obtained more extent than shown in the title deed or not is not very relevant. What is to be decided by the court is only whether respondent has established his possession of the plaint schedule property which is identified by the Commissioner as a plot having an extent of 53.126 cents. If the respondent has established that possession, he is entitled to the decree. If not, the suit can only be dismissed. Learned Sub Judge should not have remanded the matter to the trial court, even when plaint was allowed to be amended as the plaint schedule property is the property within the four boundaries shown in the plaint both prior to the plaint amendment and even subsequently. The question whether the property identified by the Commissioner is the property within the four boundaries shown in the title deed is a fact to be decided on the evidence on record. Though the order permitting amendment was challenged, I find that by the amendment no prejudice was caused to the appellants. Appellants are entitled to FAO 52/08 7 file additional written statement controverting the case. Learned Sub Judge has to be decided the question on evidence whether respondent has established his possession of plaint schedule property or not. Appeal is therefore allowed. Judgment in A.S.81/2007 on the file of Sub court, Muvattupuzha is set aside. A.S.81/2007 is remanded to Sub court, Muvattupuzha for fresh disposal in accordance with law and in the light of the observations made above. Sub Judge to dispose the appeal as expeditiously as possible. Parties are directed to appear before the Sub court, Muvattupuzha on 22/5/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.