IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 SA.No. 366 of 1995() -------------------- {A.S.NO.38/1989 OF THE II ADDL.SUB COURT, TRIVANDRUM IN O.S.NO.321/1986 OF THE PRL.MUNSIFF COURT, NEDUMANGAD} .................... APPELLANT(S)/APPELLANT/PLAINTIFF: --------------------------------------------------------------- SARASWATHI AMA LATHAKUMARI, AGED 33, RESIDING IN ANANDA BHAVAN VENKAVILA, VETTAMPALLI MURI, NEDUMANGAD TALUK. BY ADV. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE SRI.M.RAMASWAMY RESPONDENT(S)/RESPONDENTS/LRS OF THE DEFENDANT: ----------------------------------------------------------------------------------------------- 1. B.BABY, AGED 54, ADIKODUKONATHUKUNNIL VEEDU, PALUVALLI P.O., PACHA, NEDUMANGAD. 2. B.SUDHA, AGED 51, RESIDING AT DO. DO. 3. B.SUSEELA, AGED 46, RESIDING AT DO. DO. 4. N.RAJAN, AGED 44, RESIDING AT DO. DO. 5. M.RAVEENDRAN, AGED 41, RESIDING AT DO. DO. 6. M.SURESHBABU, RESIDING AT DO. DO. ADV. SRI.B.KRISHNA MANI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- S.A..No.366 of 1995 ------------------------- Dated this the 5th day of January, 2009. JUDGMENT The plaintiff, in a suit for declaration of possession and consequential injunction, is the appellant herein. 2. The plaint schedule property is described as having an extent of 2 acres of land. The plaintiff asserted that 1 acre and 43 cents of land was derived by her under Ext.A1 settlement deed. Though the property covered by Ext.A1 is described as having an extent of 1.43 acres, the total area, lying with allegedly well defined boundaries, is 2 acres. It is conceded that 60 cents of land is in excess of the extent covered by the document of title. 3. The defendant, in his written statement, while conceding the plaintiff's title over 1.43 acres conveyed under Ext.A1, specifically denied the plaintiff being in possession of any land in excess of 1.43 acres. The defendant also contended that the boundaries on the north-western side of the plaint schedule property was actually put up by him. S.A..No.366 of 1995 :: 2 :: 4. An ex parte commission was taken out by the plaintiff. Ext.C1 report and Ext.C2 plan were filed. The extent of land measured was marked as A, B, C, D, E, F, G, H, I and the same was found to be having an extent of 1.74 acres. Ext.C1 report was filed in the year 1976. Taking note of the plan and the report, the plaintiff filed an application for amendment of the plaint by correcting the plaint schedule property as 1.74 acres, instead of 2 acres. The said application was dismissed by the trial court as belated. 5. On the premise that the plaintiff's case regarding possession over an extent of 2 acres of land was belied and was not even sought to be prosecuted by the plaintiff herself, and finding a discrepancy in the age of the boundaries as stated by the plaintiff and as noted by the Commissioner, the trial court dismissed the suit. It may be noted herein that though the defendant had filed a written statement, he had not participated in the trial. The witnesses examined on behalf of the plaintiff were not cross-examined as well. 6. A.S.No.38/89 preferred by the plaintiff was dismissed by the lower appellate court and S.A..No.366 of 1995 :: 3 :: hence this appeal, raising the following substantial questions of law: “ i. Ought not the courts below allowed the application for amendment correcting the plaint schedule property? ii. Is the dismissal of an application for amendment on the ground that it was filed after the case was included in the list proper and valid? iii. Is not the plaintiff entitled to amend the plaint at any stage of the suit? iv. Is not the plaintiff entitled to a lesser relief than claimed in the plaint? v. Was the courts below proper in dismissing the suit as well as the appeal without granting a declaration at least in respect of the portions which the court found the plaintiff was in possession? vi. Is not the plaintiff entitled to seek a mere declaration of her possessory right in spite of the fact that she had not claimed declaration of title? Vii. Whether the courts below right in ignoring the documentary as well as oral evidence adduced by the plaintiff in support of her case? Viii. Are not the procedures prescribed under law intended to give relief to persons seeking the assistance of the court and not to destroy the right of such parties?” 7. I heard learned counsel for the appellant Mr.G.S.Reghunath, learned counsel for the S.A..No.366 of 1995 :: 4 :: appellant and Mr.B.Krishanmani, learned counsel for the respondents. 8. I am of the view that the trial court erred in rejecting the appellant's application for amendment of the plaint. No doubt, the application was belated. But, it has to be noted that the defendant had denied the plaintiff being in possession of any land n excess of 1.43 acres covered by Ext.A1. Therefore, an amendment of the plaint by reducing the extent of the land claimed by the plaintiff from 2 acres to 1.74 acres based on Ext.C1 report and Ext.C2 plan cannot be considered as having the effect of prejudicially affecting the contentions of the defendant. 9. There is yet another factor which has to be noted. The trial court had not proceeded to set the defendant ex parte, nor can the judgment be considered as an ex parte one. The trial court had only noted that the defendant had not participated in the trial. It is difficult to find out why the trial court had not framed issues based on the contentions of the parties. The parties should have been asked to go to trial only on the basis of the issues framed by the trial court. A reading of the S.A..No.366 of 1995 :: 5 :: judgment of the trial court does not show that there was an attempt on the part of the court to frame issues. 10. On a query made by me, Mr.Reghunath as well as Mr.Krishnamani admit that it would only be appropriate that the parties are asked to litigate on title with regard to the 31 cents of land, which is in excess of 1.43 acres of land claimed by the plaintiff under Ext.A1 settlement deed. It is significant to note that the defendant also has set up a case of being in possession of certain puthuval land in excess of the land which he claims as part of his registered holding. 11. For all these reasons, I am of the view that the matter requires reconsideration by the trial court. In these circumstances, it would be appropriate that the parties be permitted to litigate on the title with regard of the 31 cents of land. 12. Accordingly, the Second Appeal is allowed by way of remand. The judgment and decree of the courts below are set aside. I.A.No.418/89 filed in O.S.No.321/86 shall stand allowed. The defendant shall be permitted to file additional S.A..No.366 of 1995 :: 6 :: written statement. I make it clear that the parties shall be permitted to amend their pleadings and if the plaintiff files an application for amendment of the plaint by raising a claim of title with regard to the 31 cents of land, then the trial court shall allow the same. Obviously, the defendant shall be entitled to file additional written statement. In the facts and circumstances of the case, it will be appropriate that a fresh trial is conducted. If the parties file an application for fresh commission, the court below shall allow the same. The lower court records shall be transmitted back to the trial court. Parties shall appear before the trial court on 24.02.2009. Sd/- (V.GIRI) JUDGE sk/ //true copy//