IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 18159 of 2008(J) -------------------------- PETITIONER: ------------ 1. RAJESH.P.S., 32 YEARS, S/O.THANKAMANI, HARITHA BHAVAN, THUTHIYOOR, KAKKANAD 2. HAREESH P.S., 30 YEARS, S/O.THANKAMANI , DO.DO. BY ADV. SRI.K.V.JAYACHANDRAN RESPONDENTS: ------------- 1. AJITHA KUMARI, D/O.BHARATHI AMMA, 39 YEARS, PUNNAPARAMBUJ AISWARYA NAGAR KAKKANAD KARA, KAKKANAD VILLAGE KUSUMAGIRI PO., 2. SUMANGALA, D/O.BHARATHI AMMA, AGED 35,' VISHNU VIJAYA, AISWARYA NAGAR,KAKKANAD KARA, KAKKANAD VILLAGE. BY ADV. SRI.A.BALAGOPALAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.18159/2008 EXT.P1 TRUE COPY OF THE PLAINT IN O.S.447/1999 DATED 16.3.1999 OF THE 2ND ADDL. MUNSIFF COURT, ERNAKULAM. EXT.P2 TRUE COPY OF THE WRITTENS TATEMENT BY 2ND RESPONDENT IN O.S.447/1999 OF THE 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM DATED 22.5.1999. EXT.P3 TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.447/1999 DATED 1.9.2006. EXT.P4 TRUE COPY OF THE AMENDMENT APPLICATION I.A.9381/2006 IN OS.447/1999 OF THE 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM, DATED 5.10.2006. EXT.P5 A TRUE COPY OF THE AMENDMENT APPLICATION I.A.9737/2006 IN OS 447/1999 OF THE 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM, DATED 16.10.2006. EXT.P6 ORDER IN I.A.NO.9381/2006 DATED 23.11.2006 BY THE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM. EXT.P7 ORDER IN I.A.NO.9737/2006 DATED 23.11.2006 BY THE 2ND ADDL. MUNSIFFS COURT, ERNAKULAM. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18159 of 2008 ------------------------------- Dated this the 4th July, 2008. J U D G M E N T Petitioners are plaintiffs and respondents the defendants. The suit was filed for a declaration of title and for permanent prohibitory injunction. The case of petitioners is that plaint schedule property originally belonged to the family of respondents and under the partition deed, a portion was allotted to first defendant from whom plaint schedule property was purchased by them, as per sale deed No.3017/1980 of Thrikkakara Sub Registry. After the commissioner submitted a report showing that the disputed property does not form part of the property allotted to the first defendant, but the second defendant, petitioners filed I.A.No.9381/2006, an application under Order VI Rule 17 of Code of Civil Procedure to amend the plaint, incorporating the plea that at the time of sale, first respondent misrepresented and committed fraud on the petitioners, and as per the partition deed, 15 links of pathway is provided to the properties allotted to the defendants, and, therefore, petitioners as assignee from first defendant are entitled to get 15 links pathway W.P.(C) No.18159/2008 2 through the western side of the property. Amendment is also sought for on the description of the boundaries, by which the plaint schedule property is being changed from the original plaint schedule property. Under Ext.P6 order, that petition was dismissed. Petitioner has also filed I.A.No.9737 of 2006 for permission to amend the boundaries of the entire plaint schedule property , which was dismissed under Ext.P7 order. This petition is filed under Article 227 of the Constitution of India challenging Exts.P6 and P7 orders. 2. The learned counsel appearing for petitioners and learned counsel appearing for second respondent were heard. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in Exts.P6 and P7 orders. If the amendment sought for is allowed, the very nature of the claim will be changed. So also, plaint schedule property will be changed from the original plaint schedule property. Such an amendment cannot be allowed. In fact, from the contentions raised by the petitioners, it is clear that what they are claiming is a right of way, as provided in the original partition deed. If that be the case, I do not find why the plaintiffs are prosecuting the suit as it now stands and W.P.(C) No.18159/2008 3 they could get the requisite relief only by instituting a proper suit. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.