IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 27904 of 2008(V) -------------------------- OS.201/2003 of MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): --------------------- 1. MOLLY PHILIP, W/O.C.O.PHILIP CHUMATHARAVELLIL HOUSE KUDUKKIL ARAMATHODUVIL AHAMMED. CHENGAROOR PO, PUTHUSSERY MURI, KALLOPPARA VILLAGE, MALAPPALLY TALUK PATHANAMTHITTA. 2. C.O.PHILIP, CHUMATHASRAVELLIL HOUSE KUDUKKIL ARAMTHODUVIL AHAMMED CHENGAROOR PO, PUTHUSSERY MURI KALLOPPARA VILLGE, MALAPPALLY TALUK. PATHANAMTHITTA. BY ADV. SRI.ABRAHAM SAMSON RESPONDENTS(S): ----------------------------- CHERIAN VARGHESE VALLAKANDATHIL HOUSE, CHENGAROOR PO., PUTHUSSERY MURI, KALLOPPARA VILLAGE, MALAPPALLY TALUK, PATHANAMTHITTA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.27904 of 2008 = = = = = = = = = = = = = = Dated this the 22 nd day of September, 2008 JUDGMENT The plaintiffs in O.S.No.201 of 2003 on the file of the Munsiff's Court, Thiruvalla are the writ petitioners. They challenge Ext.P6 order as per which their application for amendment of the plaint has been dismissed by the lower court. The suit is one for a perpetual injunction restraining the defendants from trespassing into the plaint schedule item No.1 having an extent of 1 acre and 4 cents and also restraining the defendants from widening the plaint schedule Item No.2 pathway running east-west along the northern boundary of the plaint schedule Item No.1 and stated to be having a width of 12 feet. The relief claimed with regard to the plaint schedule item No.2 way is that the defendants should not encroach into the plaint schedule Item No.1 property for the purpose of widening Plaint schedule Item No.2 way. The defendants filed a written statement (with a counter claim regarding the plaint schedule Item No.2 way) to the effect that plaint schedule item No.2 has W.P.(c).No.27904 of 2008 2 got a width of more than 12 feet. After filing the suit, the plaintiffs discovering from the report of the Advocate Commissioner that the width of plaint schedule item No.2 way was more than 12 feet as alleged in the plaint, reduced the width of the way by annexing a narrow strip of land to the south of the way to plaint schedule item No.1 lying to the south. The defendant filed a counter claim for a declaration of his right over a portion of the property which was allegedly trespassed upon by the plaintiff. A commission was also taken out at the instance of the defendants. The Commissioner filed his report and plan as per which a portion of the way running along northern boundary of item No.1 shown as a red shaded narrow strip of land OPQRSTEFN was encroached upon by the plaintiff. Thereupon the plaintiff filed I.A.No.471 of 2008 for incorporating a prayer for declaration of the said strip of land as part of the plaint schedule Item No.1. 2. As rightly observed by the learned Munsiff the present attempt of the plaintiff is to treat the encroached portion as the part of plaint schedule Item No.1. By their own subsequent conduct, the plaintiffs have reduced the width of the road by 10 W.P.(c).No.27904 of 2008 3 to 15 feet as shown by the Commissioner. Their present attempt is to wriggle out from the admission originally made in the plaint that the plaint schedule No.2 way has a width to 12 feet. This was done after noticing that the way is wider than 12 feet and the obvious attempt was to annexe the red shaded strip of land as part of item No.1. The consequence of their action will be that the road running along the northern boundary of plaint schedule item No.1 and other adjacent properties will have a constriction at the site where it passes along plaint schedule Item No.1. The court below has rightly dismissed the said application for amendment of the plaint. I see no good ground to interfere with order of the court below. This writ petition is accordingly dismissed. Dated this the 22 nd day of September, 2008. V. RAMKUMAR, JUDGE sj