IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 OP(C).No. 662 of 2011(O) ------------------------ OS.331/2007 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- PAILY, S/O. POTTAKKA OUSEPH, AGED 80 YEARS, RESIDING AT POTTAKKA HOUSE, MURINGOOR VILLAGE/DESOM, MUKUNDAPURAM TALUK - 691 585, THRISSUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER STEPHEN P.P., S/O. PAILY, POTTAKKA HOUSE. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.M.HARISHARMA. RESPONDENT(S): PETITIONER/DEFENDANT: ------------------------------------------------------------------ DEVASSY, S/O. POTTAKKA OUSEPH, AGED 71 YEARS, RESIDING AT POTTAKKA HOUSE, PARAPPOOKKARA VILLAGE/DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.RENJITH THAMPAN, SRI.A.S.RADHAKRISHNAN NAIR. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.662/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER DTD.13/8/2007. P2: COPY OF THE REPORT DTD. 11/09/2007 SUBMITTED BY THE COMMISSIONER. P3: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE RESPONDENT DTD. 5/09/2007. P4: COPY OF THE OBJECTION DTD. 16/09/2010 SUBMITTED BY THE PETITIONER. P5: COPY OF THE PETITION FOR AMENDMENT DTD. 18/11/2010 HAVING NO.IA.2096/2010. P6: COPY OF THE OBJECTION DTD. 29/11/2010 FILED BY THE PETITIONER. P7: COPY OF THE ORDER IN I.A.NO.2096/2010 IN O.S.331 OF 2007 DTD.6/1/2011 (WRONGLY WRITTEN AS 6/1/2010). P8: COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF STEPHEN P.P., S/O.PAILY DTD. 3/10/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.662 of 2011 -------------------------------------- Dated this the 4th day of July, 2011. JUDGMENT Respondent appears through counsel. 2. The challenge is to Ext.P7, order dated January 6, 2011 on I.A.No.2096 of 2010 in O.S.No.331 of 2007 of the court of learned Munsiff, Chalakudy to the extent learned Magistrate had allowed amendment of the written statement and counter claim as shown in paragraphs 1, 2 and 4 to 11 of I.A.No.2096 of 2010. 3. The suit is for fixation of boundary filed by the petitioner. Respondent filed Ext.P3, written statement with a counter claim. As per the counter claim he prayed for a decree for mandatory injunction based on a claim of easement by way of necessity over the disputed way and referred to in the written statement and counter claim. While so, respondent filed Ext.P5, application for amendment of the written statement and counter claim. That was objected by petitioner vide Ext.P6. According to the petitioner, respondent has made certain admissions in the written statement and counter claim which cannot be allowed to be withdrawn by way of amendment. Learned Munsiff heard the application and passed Ext.P7, order as per which contention of the petitioner regarding withdrawal of (alleged) admissions was disallowed and the rest of the prayer in I.A.No.2096 of 2010 was allowed. Learned Senior Advocate OP(C) No.662/2011 2 would contend that though learned Munsiff has accepted the plea of petitioner that respondent cannot withdraw from the admissions already made in the written statement and the counter claim, as the counter claim now stands even after Ext.P7, order in paragraph 11 of the written statement and counter claim, claim of respondent is one of title over the property but by the amendment application he has asked for a mandatory injunction by way of right of easement. It is contended by learned Senior Advocate that a plea of title and claim of easement by way of necessity cannot run together since the claims are mutually contradictory and inconsistent. I have heard learned counsel for respondent also. 4. The question whether reliefs prayed for by the respondent in the counter claim as it stands are allowable is a matter which the trial court has to decide. It is open to the petitioner to raise all his contentions as to the alleged inconsistency and disentitlement of the respondent to get a decree based on the plea of easement by way of necessity before learned Munsiff. Respondent also can address his arguments on the point before the learned Munsiff. In the circumstances it is not necessary to pass any order in this Original Petition. However I make it clear that parties can raise their respective contentions before learned Munsiff in the course of trial and hearing of the suit. OP(C) No.662/2011 3 With the above direction and observation this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks