IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21780 of 2006(P)
1. LATHA DEVADAS, W/O. B.N. DEVADAS,
... Petitioner
2. B.N. DEVADAS, S/O. B. NARAYANA RAO,
Vs
1. SULOCHANA SHARMA,
... Respondent
For Petitioner :SRI.JOBY JACOB PULICKEKUDY
For Respondent :SRI.S.B.PREMACHANDRA PRABHU
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :14/11/2008
O R D E R
K.P. BALACHANDRAN, J.
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W.P(c) No. 21780 of 2006
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Dated this the 14th day of November, 2008
JUDGMENT
The petitioners are wife and husband and the respondent is the
sister of the second petitioner. Petitioners were plaintiffs in O.S.
No.862 of 2005 on the file of the Munsiff’s Court, Ernakulam and the
respondent was the sole defendant. Only prayer in the suit was for a
decree for permanent prohibitory injunction restraining the defendant,
her men and agents from alienating or otherwise transferring or
encumbering the plaint B schedule property to any strangers. It is
submitted that though another injunction petition had been filed no
order has been obtained. The suit was filed on 18/06/2005. It is not
disputed before me that the respondent/defendant transferred the
property to 3rd person under Sale deed No.39 of 2006 of Sub Registry
Office, Ernakulam on 4/01/2006. Naturally, the suit has thus become
infructuous as the relief sought for would not be granted after the
transfer is effected. On 7/03/2006, the plaintiffs filed an application
for amendment of the plaint supported by an affidavit sworn by the
second plaintiff incorporating further averments as stated therein as
W.P(c) No. 21780 /2006
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para 4(a) to the plaint and consequently to amend the prayer coloum as
well for redeclaring that the plaintiffs have become the absolute
owners in possession of plaint B schedule property by way of adverse
possession. The case of the plaintiffs was that the mother of the second
plaintiff and the defendant namely Smt. Sarojini had executed a gift
deed in favour of the defendant as Gift Deed No.631 of 1976 of
Edappally Sub Registry Office. However the same was neither known
to the defendant nor has she accepted the same and the plaintiffs
continued to be in possession of B schedule property along with A
schedule property which belonged to them and he is taking all income
therein and on death of his father in 1987, he was in absolute
possession of the B schedule property. It is further alleged that the
defendant was sent away in marriage before 1976 and thereafter she
never used to visit the schedule property and she had abandoned the
same and the original title deed itself was in the custody of the
plaintiffs. According to the petitioners, they were maintaining B
schedule property and taking income from therein for the last more
than 20 years peacefully, openly, continuously without interruption and
as of right and that the defendant has not objected to the absolute
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possession of the plaintiff at any point of time during the last 20 years.
The plaintiff who sought for relief of injunction on the above
averments sought for amendment of the plaint, setting up a plea of
adverse possession. The trial court was of the view that the amendment
sought for is inconsistent with the original plea and therefore the
amendment is not allowable. It is contended before me by the learned
counsel for petitioners that substantial plea in the plaint was one of
adverse possession though the word “adverse” had not been used as
such while attempting to fasten their claim over B schedule property. It
is worthy to note that the specific plea of the plaintiffs/petitioners was
that the gift deed was not accepted by the defendant she having been
married even before the execution of gift deed involved and she never
used to visit the schedule properties and she had abandoned schedule
properties and that he is in possession of the gift deed as well. When
that is the plea in the original plaint, it cannot be contended even for a
moment that to the knowledge of the defendant, the plaintiffs were
holding B schedule property adversely to the interest of the defendant
openly and as of right so as to fasten the claim of absolute title by way
of adverse possession and limitation. If at all the inconsistent plea is
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allowed to be incorporated in the plaint, it naturally relates back to the
date of the plaint and affects adversely the interest of the
defendant/respondent. Further, even as on today the transferee of the
schedule property is not sought to be impleaded. This is not a fit case
where the plaintiffs can be allowed to amend the plaint advancing plea
of adverse possession when the case originally set up by them was that
the defendant was not even aware of the gift deed or possession of the
properties and was not even in the place after her marriage in 1976 and
as such the plaintiffs were in possession. The inconsistent plea
attempted to be set up by amendment of plaint was being rightly
rejected by the court below vide Exhibit P4 order. There is no reason
why this court is to interfere with the said order and allow amendment
of the plaint sought for.
This Writ Petition is devoid of merit and is hence, dismissed.
K.P. BALACHANDRAN, JUDGE
scm