IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).No. 31347 of 2008(F) -------------------------- OS.297/2002 of MUSNIFF COURT,ADOOR .................... PETITIONER(S): --------------- ZAKKEENA BEEVI, AGED 63 YEARS, W/O. ABDUL JALEEL, BLAHETHUVADAKKE VEEDU, KANNAMKODU MURI, ADOOR VILLAGE, NOW RESIDING AT PUTHEN VILAYIL VEEDU, THAMARAKULAM MEKKU MURI, THAMARAKKULAM VILLAGE. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENT(S): --------------- 1. SOUDA BEEVI, BLAHETHU VADAKKE MURI, KANNAMKODU MURI, ADOOR VILLAGE, NOW RESIDING AT REJI MANZIL, KAMMANKODU MURI, ADOOR VILLAGE. 2. SAJITHA, BLAHETHU VADAKKE MURI, KANNAMKODU MURI, ADOOR VILLAGE, NOW RESIDING AT KOOTTAM VETTIYIL VEEDU, KURAMPALA MURI AND VILLAGE. 3. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. 4. DEPUTY DIRECTOR OF SURVEY, PATHANAMTHITTA. 5. VILLAGE OFFICER, ADOOR. BYGOVT. PLEADER SRI. P.K. RAVIKRISHNAN FOR R3 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31347 of 2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S NO.297/2002 ON THE FILES OF THE MUNSIFF COURT, ADOOR. EXT.P2: TRUE COPY OF THE IMPLEADING PETITION (I.A 98/2007) EXT.P3: TRUE COPY OF THE AMENDMENT APPLICATION NUMBERED AS I.A NO.1185/2008 EXT.P4: TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2. EXT.P5: TRUE COPY OF THE ORDER DATED 18.9.2008 IN I.A NO.1185/2008 IN O.S 297/02 ON THE FILES OF THE MUNSIFF COURT, ADOOR. /TRUE COPY/ P.A TO JUDGE P.BHAVADASAN, J. ------------------------- W.P (C) No.31347 of 2008 -------------------------- Dated this the 24th February, 2010 J U D G M E N T In this writ petition, the petitioner seeks to get quashed Ext.P5 order passed by the Munsiff Court, Adoor rejecting his application for amendment. 2. The petitioner instituted O.S No.297/2002 before the Munsiff Court, Adoor. The suit was one for fixation of boundary on the northern and western side of the petitioner's property so as to demarcate it from the property by defendants 1 and 2. Petitioner claims exclusive right to 36.25 cents in Adoor Taluk which claims to have obtained as per Partition Deed No.6428 dated 19.10.1965 of Adoor S.R.O. The 1st defendant is none other than her sister. The 2nd defendant is the daughter of the first defendant. She also got 36.25 cents of land as per partition deed. Plaintiff stated that out of that property obtained by the first defendant, she sold 6.25 cents to one Mr.Ibrahimkutty Rawther and Pathummal Beevi as per sale deed No.279 dated 25.1.1966. Another 8 cents of land was settled by her in favour of her daughter W.P (C) No.31347 of 2008 2 and son-in-law by virtue of settlement deed No.543 dated 14.2.1985. Apart from this, she settled another 8 cents in favour of the 2nd defendant -daughter as per sale deed No.833 dated 24.2.1996. It is stated that she also transferred 5.110 cents of land from the total extent of 36.25 cents to Mr.Sam Cherian as per sale deed No.3550 dated 18.10.1995 of Adoor S.R.O. After transferring about 28 cents from 36.25 cents, the 1st defendant then made several attempts to transgress into the petitioner's property with false claims. Defendants did not consider the requests made by the plaintiff to put up boundaries and made several illegal demands. That forced the plaintiff to approach this Court. 2. During the pendency of the suit, the resurvey proceedings have been finalised and that necessitated amendment of the plaint. Therefore, it is pointed out that the petitioner has also sent a notice under Section 80 of C.P.C to the concerned authorities regarding the mistakes in resurvey. Whatever that be, it has become necessary to incorporate some additional pleadings and prayers against W.P (C) No.31347 of 2008 3 defendants 3 to 5 in the light of the resurvey finalisation. It is in that situation, this writ petition has been filed. 3. The respondents were served but have not entered appearance. The learned counsel for the petitioner points out that the court below was not justified in dismissing the application holding that the amendment will change the entire nature and character of the suit. It is pointed out that amendment was necessitated by finalisation of the resurvey proceedings and the only prayer now sought is for a consequential mandatory injunction. The main grievance is that, the fixation of boundaries will not be sufficient in the light of the resurvey proceedings, which is really unsustainable in law. Petition ought to have been allowed. 4. There is considerable force in the submission made by the learned counsel for the petitioner. Amendment sought for was in consequence of the finalisation of the resurvey proceedings and even if the amendment is allowed, it will not change the character of the suit. Suit is for demarcation of the boundaries on the W.P (C) No.31347 of 2008 4 norther and western side of the petitioner's property also, which still remain as the main prayer. 5. It is difficult to accept the view of the Court below that the amendment will change the character of the suit. The court below was not justified in declining the reliefs. In the result, the writ petition is allowed. Ext. P5 is quashed and I.A No.1185/2008 in O.S.297/2008 shall stand allowed and the petitioner shall file amended copy of the plaint within one month from today. P.BHAVADASAN, JUDGE ma W.P (C) No.31347 of 2008 5 W.P (C) No.31347 of 2008 6