IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 WP(C).No. 21780 of 2006(P) --------------------------------- AGAINST THE ORDER IN IA No. 2593 OF 2006 IN OS.862/2005 OF PRL.M.C.,ERNAKULAM .................... PETITIONERS : ---------------------- 1. LATHA DEVADAS, W/O. B.N. DEVADAS, AGED 45 YEARS, RESIDING AT HARIDAS BHAVAN, CHUTTUPADUKARA, EDAPPILLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. B.N. DEVADAS, S/O. B. NARAYANA RAO, AGED 57, RESIDING AT HARIDAS BHAVAN, CHUTTUPADUKARA, EDAPPILLY NORTH VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.PAUL MATHEW (PERUMPILLIL) RESPONDENT : ------------------------ SULOCHANA SHARMA, W/O. DR.B. JAGADEESH SHARMA, AGED 65 YEARS, AMBALAPPADY MAIN ROAD, UDUPPI, NOW TEMPORARILY RESIDING AT C/O.V.V. SHASRMA, GOKULAM, 6F, PANTHEON APTS, MAROTTIC CHUVADU, EDAPPALLY, COCHIN-31. ADV. SRI.S.B.PREMACHANDRA PRABHU - R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21780 of 2006 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : TRUE PHOTOSTAT COPY OF THE PLAINT AS O.S NO.862 OF 2005. EXHIBIT P2 : TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT/DEFENDANT. EXHIBIT P3 : TRUE COPY OF THE AMENDMENT PETITION NO.1.A. 2593 OF 2006 IN O.S. NO.862 OF 2005. EXHIBIT P5 : THE CARBON COPY OF THE ORDER IN I.A. NO.2593/2006 IN O.S NO. 862 OF 2005 PASSED BY THE PRINCIPAL MUNISFF COURT, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE scm K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 21780 of 2006 ------------------------------ Dated this the 14th day of November, 2008 JUDGMENT The petitioners are wife and husband and the respondent is the sister of the second petitioner. Petitioners were plaintiffs in O.S. No.862 of 2005 on the file of the Munsiff's Court, Ernakulam and the respondent was the sole defendant. Only prayer in the suit was for a decree for permanent prohibitory injunction restraining the defendant, her men and agents from alienating or otherwise transferring or encumbering the plaint B schedule property to any strangers. It is submitted that though another injunction petition had been filed no order has been obtained. The suit was filed on 18/06/2005. It is not disputed before me that the respondent/defendant transferred the property to 3rd person under Sale deed No.39 of 2006 of Sub Registry Office, Ernakulam on 4/01/2006. Naturally, the suit has thus become infructuous as the relief sought for would not be granted after the transfer is effected. On 7/03/2006, the plaintiffs filed an application for amendment of the plaint supported by an affidavit sworn by the second plaintiff incorporating further averments as stated therein as W.P(c) No. 21780 /2006 2 para 4(a) to the plaint and consequently to amend the prayer coloum as well for redeclaring that the plaintiffs have become the absolute owners in possession of plaint B schedule property by way of adverse possession. The case of the plaintiffs was that the mother of the second plaintiff and the defendant namely Smt. Sarojini had executed a gift deed in favour of the defendant as Gift Deed No.631 of 1976 of Edappally Sub Registry Office. However the same was neither known to the defendant nor has she accepted the same and the plaintiffs continued to be in possession of B schedule property along with A schedule property which belonged to them and he is taking all income therein and on death of his father in 1987, he was in absolute possession of the B schedule property. It is further alleged that the defendant was sent away in marriage before 1976 and thereafter she never used to visit the schedule property and she had abandoned the same and the original title deed itself was in the custody of the plaintiffs. According to the petitioners, they were maintaining B schedule property and taking income from therein for the last more than 20 years peacefully, openly, continuously without interruption and as of right and that the defendant has not objected to the absolute W.P(c) No. 21780 /2006 3 possession of the plaintiff at any point of time during the last 20 years. The plaintiff who sought for relief of injunction on the above averments sought for amendment of the plaint, setting up a plea of adverse possession. The trial court was of the view that the amendment sought for is inconsistent with the original plea and therefore the amendment is not allowable. It is contended before me by the learned counsel for petitioners that substantial plea in the plaint was one of adverse possession though the word “adverse” had not been used as such while attempting to fasten their claim over B schedule property. It is worthy to note that the specific plea of the plaintiffs/petitioners was that the gift deed was not accepted by the defendant she having been married even before the execution of gift deed involved and she never used to visit the schedule properties and she had abandoned schedule properties and that he is in possession of the gift deed as well. When that is the plea in the original plaint, it cannot be contended even for a moment that to the knowledge of the defendant, the plaintiffs were holding B schedule property adversely to the interest of the defendant openly and as of right so as to fasten the claim of absolute title by way of adverse possession and limitation. If at all the inconsistent plea is W.P(c) No. 21780 /2006 4 allowed to be incorporated in the plaint, it naturally relates back to the date of the plaint and affects adversely the interest of the defendant/respondent. Further, even as on today the transferee of the schedule property is not sought to be impleaded. This is not a fit case where the plaintiffs can be allowed to amend the plaint advancing plea of adverse possession when the case originally set up by them was that the defendant was not even aware of the gift deed or possession of the properties and was not even in the place after her marriage in 1976 and as such the plaintiffs were in possession. The inconsistent plea attempted to be set up by amendment of plaint was being rightly rejected by the court below vide Exhibit P4 order. There is no reason why this court is to interfere with the said order and allow amendment of the plaint sought for. This Writ Petition is devoid of merit and is hence, dismissed. K.P. BALACHANDRAN, JUDGE scm