IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 367 of 1996(B)
1. CLARAMMA
... Petitioner
Vs
1. THRESIAMMA
... Respondent
For Petitioner :SRI.P.R.VENKATESH
For Respondent :SRI.A.KRISHNAN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :05/02/2009
O R D E R
P.N.RAVINDRAN, J.
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S.A.No.367 of 1996
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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
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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
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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
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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
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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,
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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
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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
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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
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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,
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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
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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
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