IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 SA.No. 367 of 1996(B) ------------------------------- AS.37/1989 of ADDL.SUB COURT, ALAPPUZHA OS.283/1986 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT(S): ADDL. APPELLANTS 2 TO 7/LEGAL REPRESENTATIVES OF ---------------------- ORIGINAL PLAINTIFF 1. CLARAMMA, W/O. JOSEPH, THEKKEDATHU VEETTIL, PURAKKAD MURI, PURAKKAD VILLAGE, AMBALAPUZHA TALUK. 2. T.J.CHACKO, S/O. JOSEPH, THEKKEDATHU VEETTIL, PURAKKAD MURI, PURAKKAD VILLAGE. 3. THOMAS , S/O. JOSEPH, THYKKATTUSSERI VEETTIL, PURAKKAD MURI, FROM THEKKEDATHU VEETTIL, DO. 4. JOSEPH, S/O. JOSEPH, M.J.BHAVANAM, DO. MURI, FROM THEKKEDATHU VEETTIL, DO. VILLAGE. 5. THRESIAMMA JOSEPH, D/O. JOSEPH, KARIKKAMPALLIL, KALIKKAPARAMBIL, CHEKKIDIKKADU MURI, THAKAZHI VILLAGE, FROM THEKKEDATHU VEETTIL. 6. VIMALA JOSEPH, D/O. JOSEPH, SACRET HEART CONVENT, THALASSERRY FROM THEKKEDATHU VEETTIL. BY ADV. SRI.P.R.VENKATESH RESPONDENT(S): RESPONDENTS/ DEFENDANTS 1 & 2 ------------------------ 1. THRESIAMMA, W/O. SCARIA, RESIDING AT THEKKEDATHU, PURAKKAD MURI, PURAKKAD VILLAGE, AMBALAPUZHA. S.A. NO.367/1996 2. SCARIA CALLED UNNI, RESIDING AT THEKKEDATHU , PURAKKAD MURI, PURAKKAD VILLAGE, AMBALAPUZHA. 3. T.J.VARGHESE, W. 361/7 BLOCK, BERIWALA BAGE, HARINAGAR P.O., NEW DELHI 110 064 FROM THEKKEDATHU, DO. MURI, DO. VILLAGE. ADV. SRI.A.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ====================================== S.A.No.367 of 1996 ====================================== Dated this the 5th day of February 2009 JUDGMENT The legal heirs of the plaintiff in O.S.No.283 of 1986 on the file of the Court of the Munsiff of Alappuzha are the appellants in this Second Appeal. Respondents 1 and 2 are the defendants therein. The third respondent is yet another legal heir of the deceased plaintiff. 2. The suit property in O.S.No.283 of 1986 is a parcel of land 51.25 cents in extent, situated in Sy.No.72/9B of Purakkad Village, Ambalapuzha Taluk, Alappuzha District. It admittedly belonged to four brothers, Sri.Mathew Thomas, Sri.Mathew Sebastian, Sri.Mathew Mathew and Sri.Mathew Joseph. Mathew Joseph got a release of the rights of his three brothers as per Ext.B1 release deed dated 16.5.1978 and became the absolute owner thereof. The plaintiff claimed that he was put in possession of the suit property by the four brothers, even before the execution of the release deed and that after Sri.Mathew Joseph became the absolute owner, his power of attorney executed Ext.B3 assignment deed dated 11.10.1983 conveying the suit property to him. The plaintiff contended that he thus obtained title to and is in possession of the suit property. According to the plaintiff, the suit property and the lands lying to its north having a similar extent, situated in Sy.No.72/9AB lie as one compact block S.A.367 of 1996 2 without a boundary separating the two different parcels of land. He instituted O.S.No.283 of 1986 contending that the defendants, are attempting to trespass into the suit property and interfere with his possession and enjoyment thereof. 3. In respect of the very same suit property, the defendants in O.S.No.283 of 1986 had earlier instituted O.S.No.1031 of 1983 on the file of the Court of the Munsiff of Alappuzha wherein they claimed possession of the suit property under Ext.A1 agreement dated 17.5.1978 executed by Sri.Mathew Joseph, the plaintiff's vendor in favour of Thresiamma, the first defendant in O.S.No.283 of 1986. The plaintiffs in O.S.1031 of 1983 contended that the plaintiff in O.S.No.283 of 1986 had earlier instituted O.S.No.509 of 1979 against the first plaintiff in O.S.No.1031 of 1983 and Sri.Mathew Sebastian, one among the four co-owners for a permanent prohibitory injunction restraining them from interfering with his possession and enjoyment of the suit property. They contended that though by Ext.A4 judgment delivered on 26.6.1980, the Court of the Munsiff of Alappuzha decreed the suit, on appeal filed by the first plaintiff in O.S.No.1031 of 1983, the Court of the Subordinate Judge by Ext.A5 judgment delivered on 30.6.1982 reversed the decree passed by the trial court and dismissed the suit holding that the S.A.367 of 1996 3 plaintiffs in O.S.No.1031 of 1983 are in possession of the suit property. They also contended that S.A.No.523 of 1982 filed by the plaintiff in O.S. No.283 of 1986 was dismissed by this Court as per Ext.A2 judgment delivered on 29.11.1982 and therefore the present suit is barred by resjudicata. 4. The plaintiff in O.S.No.283 of 1986, who is the first defendant in O.S.No.1031 of 1983, resisted the said suit, claiming title to and possession over the suit property as per Ext.B3 assignment deed dated 11.10.1983. The plaintiffs in O.S.No.1031 of 1983 resisted O.S.No.283 of 1986, re-iterating the contentions raised in the plaint O.S.No.1031 of 1983. They also contended that they are entitled to the protection of Section 53A of the Transfer of Property Act. 5. The two suits were jointly tried and disposed of by a common judgment. In the trial court, the first plaintiff in O.S.No.1031 of 1981 was examined as PW1, one of his workers was examined as PW2, the scribe of Ext.A1 agreement was examined as PW3 and Exts.A1 to A5 were produced and marked on their side. The plaintiff in O.S.No.283 of 1986 examined himself as DW2, his vendor (the executant of Ext.B3 assignment deed and Ext.A1 agreement) as DW1, one of the workers engaged by him as DW3 and produced and marked Exts.B1 to B8 on his S.A.367 of 1996 4 side. The trial court on an analysis of evidence oral and documentary available in the case held that Ext.A1 agreement put forward by the plaintiffs in O.S.No.1031 of 1983 is a genuine document and that it was validly executed by DW1. Though the trial court found that the plaintiffs in O.S.No.1031 of 1983 are in possession of the suit property, it was held that the plaintiff in O.S.No.283 of 1986 has title to the suit property. In view of the finding that the plaintiffs in O.S.No.1031 of 1983 are in possession of the suit property, O.S.No.1031 of 1981 was decreed and defendants therein were restrained by a permanent prohibitory injunction from trespassing upon the suit property. O.S.No.283 of 1986 was partly decreed declaring the title of the plaintiff over the suit property. The relief of declaration of possession and injunction was declined and the suit was dismissed in relation to the said relief. 6. The plaintiff in O.S.No.283 of 1986 filed A.S.No.36 of 1989 challenging the decree and judgment in O.S.No.1031 of 1983 and A.S.No.37 of 1989 challenging the decree and judgment in O.S.No.283 of 1986. A.S.No.36 of 1989 and 37 of 1989 were presented on 25.7.1989. Nearly two years after A.S.No.37 of 1989 was filed, the plaintiff in O.S.No.283 of 1986 filed I.A.No.1179 of 1991 in A.S.No.37 of 1989 seeking an amendment of the plaint in S.A.367 of 1996 5 O.S.No.283 of 1986 to incorporate the relief of recovery of possession of the suit property on the strength of title. By order passed on 17.10.1992, the Court of the Subordinate judge of Alappuzha dismissed the said application holding that the application is belated and that if the amendment prayed for is allowed, it will alter the nature of the suit. By a common judgment delivered on 31.10.1995, the Court of the Additional Subordinate judge of Alappuzha dismissed both the appeals, affirming the decision of the trial court. He thereafter filed S.A.No.368 of 1996 in this Court challenging the decree and judgment in O.S.No.1031 of 1983 and A.S.No.36 of 1989. By judgment delivered on 6.8.1996, S.A.No.368 of 1996 was dismissed illimine. Though S.A.No.368 of 1996 was dismissed in limine on 6.8.1996, this Second Appeal filed from the decree and judgment in O.S.No.283 of 1986 and A.S.No.37 of 1989 was admitted on the very same day and notice ordered to the respondents on the question whether the appellate court acted legally in dismissing the application for amendment of the plaint, viz.I.A.No.1179 of 1991 in A.S.No.37 of 1989. 7. I have heard Sri.P.R.Venketesh, the learned counsel appearing for the appellant and Sri.A.Krishnan, the learned counsel appearing for respondents 1 and 2. Sri.P.R.Venketesh, S.A.367 of 1996 6 the learned counsel appearing for the appellants contended that the order passed by the lower appellate court on 17.10.1992 dismissing I.A.No.1179 of 1991 in A.S.No.37 of 1989 wherein the plaintiff in O.S.No.283 of 1986 had prayed for an amendment of the plaint by incorporating the relief of recovery of possession of the suit property on the strength of title, is not sustainable in law and is liable to be set aside. The learned counsel for the appellants contended that as title to the suit property had been found in his favour of the plaintiff in O.S.No.283 of 1986 and as admittedly the defendants in the suit do not have title, and as the essential pleadings entitling the plaintiff to the relief of recovery of possession on the strength of title had been set out in the plaint originally filed, the lower appellate court ought to have allowed the application for amendment and remanded the suit to the trial court for fresh disposal. He also contended that in the written statement filed by the defendants in O.S.No.283 of 1986, they had raised a contention relying on Ext.A1 agreement that they are entitled to the protection of Section 53A of the Transfer of Property Act. The learned counsel for the appellant further contended that no prejudice would be caused to the defendants in the suit if the amendment prayed for is allowed and the suit remanded to the trial court for fresh disposal on the question S.A.367 of 1996 7 whether the plaintiff is entitled to recover possession of the suit property on the strength of title. 8. Per contra, the learned counsel appearing for respondents 1 and 2 contended that defendants in O.S.No.283 of 1986 had instituted the suit even in the year 1983 asserting that they are in possession of the suit property under Ext.A1 agreement for sale, that the suits were disposed of only on 6.12.1988, that the plaintiffs in O.S.No.283 of 1986 did not move for amendment of the plaint though the suit was pending for a period of two years after it was instituted, that even after the first appeal was filed they waited for nearly two years to move for an amendment of the plaint, that the application for amendment is highly belated and was rightly rejected by the lower appellate court. The learned counsel also contended that if the amendment passed for is granted, it will alter the very nature of the suit. 9. From the pleadings and the evidence on record and the concurrent findings of the courts below, it is crystal clear that the appellants in this Second Appeal, (the legal heirs of the plaintiff in O.S.No.283 of 1986) have exclusive title to the suit property. The defendants in O.S.No.283 of 1986 have been found to be in possession of the suit property under Ext.A1 agreement executed by the vendor of the plaintiff. The assertion of the title by the S.A.367 of 1996 8 predecessor in interest of the appellants in this Second Appeal, is evident from the plaint in O.S.No.283 of 1986 and also the written statement filed by him in O.S.No.1031 of 1983. In fact the defendants in O.S.No.283 of 1986 had in their written statement claimed protection under Section 53A of the Transfer of Property Act contending that they were put in possession of the suit property by the plaintiff's vendor under Ext.A1 agreement dated 16.5.1978, that they have paid a substantial portion of the agreed sale consideration, that they have effected improvements in the suit property and are in possession and enjoyment thereof. Though the plaintiff in O.S.No.283 of 1986 had asserted title over the suit properties, he did not seek recovery of possession of the suit property on the strength of title, but prayed for a declaration that he has title to and is in possession of the suit property and also for a consequential injunction based on such possession. 10. From the pleadings and the evidence on record, the finding of the courts below that the plaintiff in O.S.No.283 of 1986 has title to the suit property, cannot be faulted. As title to the suit property had been found in favour of the plaintiff in O.S.No.283 of 1986 by the trial court and as the necessary pleadings regarding the plaintiff's title to the suit property had been set out even in the plaint originally filed in O.S.No.283 of 1986, the finding of the S.A.367 of 1996 9 lower appellate court in the order passed on 17.10.1992 dismissing I.A.No.1179 of 1991 in A.S.No.37 of 1989 that if the plaintiff is permitted to amend the plaint by incorporating the relief of recovery of possession on the strength of title, it will alter the nature of the suit, cannot be sustained. The suit as laid was one for declaration of title, possession and consequential injunction. The appellate court was therefore in my opinion not right in taking the view that the amendment sought by the plaintiff would alter the nature of the suit. The suit would still be one on title. The lower appellate court rejected the application for amendment also for the reason that the application is belated and was filed nearly two years after the appeal was presented. The lower appellate court also took the view that the plaintiff could not have moved an application to amend the plaint in the appellate court. 11. The courts below have concurrently found that the defendants in O.S.No.283 of 1986 are in possession of the suit property under Ext.A1 agreement executed by the plaintiff's vendor. The courts below have also found that the plaintiff in O.S.No.283 of 1986 has title to the suit property. The defendants had also understood the case set out by the plaintiff and attempted to resist his claim of title over the suit property, S.A.367 of 1996 10 relying on Section 53A of the Transfer of Property Act. Though an issue had been framed by the trial court as regards the right of the defendants under Section 53A of the Transfer of Property Act, the said issue was deleted for the reason that the plaintiff had not prayed for recovery of possession on the strength of title. In the facts and circumstances obtaining on the case on hand, especially the concurrent finding of title in favour of the plaintiff, I am persuaded to take the view that the lower appellate court ought to have enabled the parties to have the entitlement of the plaintiff to recover possession of the suit property on the strength of title resolved in the present suit itself, instead of driving the parties to another round of litigation involving additional expenditure and waste of time. On the facts that emanate from the pleadings and the evidence on record, it cannot be said that any serious prejudice would be caused to the defendants if the amendment of the plaint as prayed for by the plaintiff is allowed. For the reasons stated above, I allow this Second Appeal, set aside decree and judgment passed by the Court of the Additional Subordinate Judge of Alappuzha in A.S.No.37 of 1989. I.A.No.1179 of 1991 in A.S.No.37 of 1989 is allowed and the appellants are permitted to amend the plaint in O.S.No.283 of 1986 by incorporating the relief of recovery of possession on the S.A.367 of 1996 11 strength of title. Consequently, the suit O.S.No.283 of 1986 is remanded to the Court of the Munsiff of Alappuzha for the limited purpose of deciding whether the plaintiff is entitled to recover possession of the suit property on the strength of title and whether the defendants are entitled to the protection of Section 53A of the Transfer of Property Act. It will be open to both sides to adduce fresh evidence in support of their respective contentions, limited, no doubt, to these two issues. The finding of the trial court that the plaintiff in O.S.No.283 of 1986 has title to the suit property shall stand. The parties shall appear before the Court of the Principal Munsiff of Alappuzha on 31.3. 2009. The appellants shall carry out the amendment proposed in I.A.No.1179 of 1991 within two weeks therefrom. The defendants will be free to file an additional written statement to the amended plaint. The registry is directed to transmit the records to the trial court along with a copy of this judgment expeditiously. The Second Appeal is allowed as above. No costs. P.N.RAVINDRAN, JUDGE css/