IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 FAO.No. 157 of 2008 ----------------------------- AS.31/2002 OF ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM, OS.156/1999 OF MUNSIFF'S COURT, KANJIRAPPALLY. .................... APPELLANTS/ RESPONDENTS/ DEFENDANTS: ------------------------------------------------------------------- 1. KUNJAMMA, W/O.SUNDARESAN, VILAYIL (THADATHIL) HOUSE, MUTTAPPALLY, ERUMELI SOUTH. 2. SUNDARESHAN, RESIDING AT DO.DO. 3. KUTTAPPAN, THALUNKAL HOUSE, DO. 4. RAJANKUTTY, THOTTAKARA HOUSE, VALADI 56TH MILE, VANDIPERIYAR, PEERUMADU. 5. THANKAMMA ALIAS CHINNAMMA, DO.DO. 6. CHELLAPPAN, THOTTAKKARA, PANKUNNEL, MUDUKKA BHAGAM, ERUMELI NORTH. BY ADV. SRI.V.G.ARUN. RESPONDENTS/ APPELLANTS/ PLAINTIFFS: ---------------------------------------------------------------- 1. P.J.KUTTAPPAN, T.C.3/321(5), MUTTADAYIL, KOWDIAR, TRIVANDRUM. 2. MATHAN, PONKUNNEL HOUSE, PUTHUKKATTU BHAGOM, THALUNKAL, KOOTTICKAL. 3. THANKACHAN, RESIDING AT DO.DO. 4. BABY, RESIDING AT DO.DO. 5. PENNAMMA, VAZHAKALA HOUSE VAZHAKKALA BHAGOM, ERUMELI NORTH 6. MARY, W/O.KUNJUMON, MOOLAYIL HOUSE KODIKUTTY ESTATE, KOKKAYAR, IDUKKI. R1 TO R6 BY ADV. SRI.P.GOPAL, ADV. SRI. P.G. PARAMESWARA PANICKER. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. NO. 157/2008: ORDER ON I.A. NO. 2518/2008 IN F.A.O. NO. 157/2008 DISMISSED 03/11/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. prv. M.N.KRISHNAN, J ===================== FAO No.157 OF 2008 ===================== Dated this the 3rd day of November 2008 JUDGMENT This appeal is preferred against the judgment of the Addl.District Court(Spl.), Kottayam in A.S.No.31 of 2002. The said appeal was preferred against the judgment and decree of the Munsiff's Court, Kanjirappally in O.S.No.156 of 1999. The trial court dismissed the case of the plaintiffs and the plaintiffs filed the appeal in which they moved an application for amendment which was allowed by the appellate court and was remanded back to the trial court for fresh consideration of the case. It is against the said order of remand, the FAO is filed before this Court. 2. The brief facts are necessary to understand the dispute between the parties. There are 3 items in the plaint schedule property. Item 1 is having a extent of 1 acre 15 cents of property and item 2 is about 5 cents of property on the south western portion and item 3 is the building situated in item 2 of the plaint schedule property. The suit is one for recovery of possession of item 2 of the plaint schedule property after demolition of the building situated therein, which is item 3 and for injunction with respect to the FAO 157/2008 -:2:- remaining portion of item 1 of the plaint schedule property and also for damages. It is the contention of the plaintiffs that one Kutty and Yohannan @ Kutty Mooppan were the children of one Azhakan. Plaintiffs are the children, who are claiming through Yohannan @Kutty Mooppan. The other son of Azhakan, viz., Kutty had a son, namely Gopidas and a daughter Aleykutty @ Thankamma. Defendants 4 to 6 are the children of Gopidas and defendants 1 and 3 are the children of Aleykutty @ Thankamma. The 2nd defendant is the husband of the first defendant. The contention of the defendants is that they were living along with their grandfather and they had been in continuous possession of the property and therefore plaintiffs do not have any right over the plaint schedule property and so they request for non-suiting the plaintiffs. The trail court found that item 2 of the plaint schedule property is not identifiable and therefore refused the prayer with respect to item 2 and demolition of the building in item 3 and thereafter further proceeded to hold that the remaining part, viz., item 1 is not proved to be in possession of the plaintiffs and therefore non-suited the plaintiffs. It is against that decision the plaintiffs preferred the appeal before the appellate court. 3. Plaintiffs in the appellate stage moved an application for amendment as I.A.No.1582 of 2007. A perusal of the affidavit in support of FAO 157/2008 -:3:- the said amendment application would reveal that they wanted to amend the plaint so as to incorporate a prayer for recovery of possession of item 1 of the plaint schedule property also on the strength of their title. The appellate court in order to avoid multiplicity of suits and for adjudication of the suits in an effective manner remanded the case for fresh trial. Aggrieved by that decision, defendants in the suit have come up with this FAO. 4. A perusal of the decision of the Apex Court in the decision reported in Puran Ram v. Bhaguram(2008(4) KLT 233(SC) would show that the courts are having discretion in allowing application for amendment of plaint even where the relief sought to be added by amendment is allegedly barred by limitation. At that stage, no court may be in a position to find out regarding the actual question whether it is barred by limitation unless there are admitted facts before a court to render a finding on the same. Now, it has been the consistent case of the plaintiffs that they were in possession of the property, viz., item 1 of the plaint schedule property even on the date of the institution of the suit and according to them the amendment is necessitated only on account of the finding of the court below that they are not in possession of the property. So far as item 2 is concerned, it is their case that defendants had been permitted to put up a building therein and they had done so and it being only a permissive FAO 157/2008 -:4:- possession they are entitled to recovery of possession of the property. The question of limitation is a mixed question of fact and law and when an application for amendment is allowed, it is necessary to permit the defendants to file an additional written statement raising all the contentions which is permissible under law. It is also a settled principle that defendants in their written statement are even permitted to raise consistent pleas but ultimately has to choose one at the trial stage. The larger question of adverse possession or limitation is a matter that will arise for consideration only when the pleadings are amended and written statement is filed and issues are raised. So I do not want to further discuss the matter and express a view so as to shut out the case of either of the parties. I do not find any ground to interfere with the decision rendered by the District Court in remanding the case and therefore I dismiss the FAO making it clear that defendants in the case are permitted to raise all the contentions in their additional written statement they want to raise which is permissible under law. M.N.KRISHNAN, JUDGE Cdp/- FAO 157/2008 -:5:-