IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 34231 of 2008(A) -------------------------------------- OS.339/2006 of MUNSIFF COURT, TRIVANDRUM .................... PETITIONER(S): --------------------- SEETHA, W/O P.M.SENAN, RESIDING AT MIDHILA, MODEL ENGINEERING COLLEGE ROAD, THRIKKAKKARA.P.O, KOCHI-21, REP; BY HER POWER OF ATTORNEY HOLDER P.M.SENAN, S/O.S.MADHAVA PANICKER AGED 63 YEARS, RESIDING AT MIDHILA,MODEL ENGINEERING COLLEGE ROAD,THRIKKAKARA.P.O,KOCHI-21. BY ADV. MR.R.S.KALKURA MR.M.S.KALESH MR.HARISH GOPINATH MR.V.VINAY MENON SMT.KVP.JAYALEKSHMY MR.M.AJAY (IRUMPANAM) RESPONDENT(S): ------------------------ 1. ABDUL REHMAN, S/O.SAINULABDEEN, T.C.49/397(1),KUTHUKALLUMOOTTIL, MANACAUD.P.O, THIRUVANANTHAPURAM. 2. NABEESATH BEEVI, W/O ABDUL REHMAN, RESIDING AT T.C.49/397(1), KUTHUKALLUMOOTTIL, MANACAUD.P.O, THIRUVANANTHAPURAM. 3. SURENDRAN, S/O VELUKUTTY PANICKER, 'SWARALAYAM',NEAR MANACAUD.P.O, THIRUVANANTHAPURAM. 4. SARATHCHANDRAN, S/O BHASKARAN NAIR, 'SUSANTHI', K.P.9/496,CHETTIKUNNU, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM. 5. CHRISTOPHER DICRUZ,S/O RAIMOND DICRUZ, RESIDING AT 'KUNNU BUNGLOW', PULIKUZHIKONATH, MEDICAL COLLEGE.P.O, KADAKAMPALLI VILLAGE, THIRUVANANTHAPURAM (DIED). R1 & R2 BY ADV. MR.J.HARIKUMAR, MR.HARIKUMAR.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34231/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.1463/71 DATED 21/06/1971. EXT.P2: COPY OF THE SETTLEMENT DEED NO.3533/1983 DATED 31/10/1983. EXT.P3: COPY OF THE TAX RECEIPT DATED 05/02/1982 EVIDENCING PAYMENT OF TAX. EXT.P4: COPY OF THE REPORT DATED 08/08/2005 SUBMITTED BY THE VILLAGE OFFICER TO THE RDO, THIRUVANANTHAPURAM. EXT.P5: COPY OF THE O.S.339/2006 ON THE FILE OF THE II ADDL. MUNSIFF'S COURT, TRIVANDRUM. EXT.P6: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANTS 1 AND 2 IN O.S.339/2006. EXT.P7: COPY OF THE ENCUMBRANCE CERTIFICATE IN RESPECT OF THE SAID PROPERTY BELONGING TO THE PETITIONER FOR A PERIOD COMMENCING FROM 01/01/1964 TO 31/12/1999. EXT.P8: COPY OF THE LETTER DATED 29/08/2005 ISSUED BY THE 5TH RESPONDENT TO THE REVENUE DIVISIONAL OFFICER. EXT.P9: COPY OF THE SWORN AFFIDAVIT EXECUTED 5TH DEFENDANT BEFORE THE NOTARY PUBLIC. EXT.P10: COPY OF THE REPORT NO.H7/5238/07 DATED 20/06/2007 SUBMITTED BY THE TALUK SURVEYOR. EXT.P11: COPY OF THE COMMISSION REPORT IN O.S. NO.339/2006 OF THE MUNSIFF'S COURT, TRIVANDRUM. EXT.P12: COPY OF THE ENCUMBRANCE CERTIFICATE PERTAINING TO THE PETITIONER'S PROPERTY FOR THE PERIOD COMMENCING FROM 01/01/1970 TO 16/05/2005. EXT.P13: COPY OF THE SALE DEED NO.1999/2000 DATED 20/05/2000. EXT.P14: COPY OF THE SALE DEED NO.2577/2000 DATED 28/06/2000. EXT.P15: COPY OF THE SALE DEED NO.3670/2000 DATED 14/09/2000. EXT.P16: COPY OF THE SALE DEED NO.1603/2005 DATED 23/03/2005. EXT.P17: COPY OF THE APPLICATION FOR AMENDMENT IN OS. NO.339/2006. EXT.P18: COPY OF THE OBJECTION SUBMITTED BY THE 3RD DEFENDANT TO THE APPLICATION FOR AMENDMENT FILED BY THE PETITIONER. EXT.P19: COPY OF THE ORDER DATED 13/10/2008 IN I.A.8135/2008 IN OS.339/2006. (P.T.O.) WP(C) NO. 34231/2008-A EXT.P20: COPY OF THE JUDGMENT DATED 03/11/2008 IN WP(C) NO. 32212/2008. EXT.P21: COPY OF THE APPLICATION FOR AMENDMENT DATED 16/10/2008. EXT.P22: COPY OF THE ORDER DATED 29/10/2008 DISMISSING THE I.A.8646/2008 IN OS.339/2006. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.34231 OF 2008 -------------------------- Dated this the 17th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or any other appropriate writ order or direction of the nature of certiorari quashing Ext.P22 as absolutely illegal and wrong and direct the court below to permit the plaintiff to carry out the amendments. ii) Grant such other reliefs which are appropriate and incidental to this proceeding and which this Hon'ble Court deems fit and proper. W.P.(C).No.34231 OF 2008 Page numbers 2. Petitioner is the plaintiff and respondent the defendant in O.S No. 339 of 2006 on the file of the Munsiff Court, Thiruvananthapuram. Suit is for declaration of title and possession and for consequential injunction. The defendants resisted the suit claim filing a written statement in which among other contentions, in the alternative he claimed of prefecting his title over the suit property by adverse possession. Plaintiff had previously moved an application for amendment so as to set aside some documents contending that those documents do not relate to the plaint property. The trial court dismissed that application against which a writ petition was filed before this court. That writ petition was disposed upholding the order of the trial court but with an observation that it is open to the plaintiff to seek for an amendment that, the documents are not binding on her, but not for setting them aside. Pursuant thereto the plaintiff moved an application for amendment that the documents do not bind her. W.P.(C).No.34231 OF 2008 Page numbers That application was dismissed by the learned Munsiff against which the writ petition is filed seeking the aforementioned reliefs invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. At the time of hearing, the learned counsel for the respondent submitted, he is not standing on technical objection, but, the amendment if allowed, should not relate back to the date of suit but only from the date of allowing it. Apprehension expressed by the counsel is that since the defendants have raised a plea of adverse possession if the amendment relate back to the date of the suit it may affect the validity of their claim. I do not find any reason for such an apprehension. The case advanced by the plaintiff as per the proposed amendment is to the effect the documents mentioned are not binding her or the suit property. If the documents do not relate to the W.P.(C).No.34231 OF 2008 Page numbers suit property, then it cannot affect the plea of adverse possession raised by the plaintiff over that property. Further more the defendant can also show that the documents are binding on the plaintiff and it relates to the suit property. On both grounds, there is no reason for any apprehension that allowing the proposed amendment and that taking effect from the date of the suit would cause prejudice and injury to the defendants. Setting aside Ext.P22 order the learned Munsiff is directed to permit the plaintiff to carry out the amendment sought under Ext.P21 application, in the plaint, and thereafter to give opportunity to the defendant to file additional written statement. Subject to the above directions, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv