IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 157 of 2008()
1. KUNJAMMA, W/O.SUNDARESAN, VILAYIL
... Petitioner
2. SUNDARESHAN, RESIDING AT DO.DO.
3. KUTTAPPAN, THALUNKAL HOUSE, DO.
4. RAJANKUTTY, THOTTAKARA HOUSE
5. THANKAMMA ALIAS CHINNAMMA, DO.DO.
6. CHELLAPPAN, THOTTAKKARA, PANKUNNAL,
Vs
1. P.J.KUTTAPPAN, T.C.3/321(5),
... Respondent
2. MATHAN, PONKUNNEL HOUSE, PUTHUKKATTU
3. THANBKACHAN, RESIDING AT DO.DO.
4. BABY, RESIDING AT DO.DO.
5. PONNAMMA, VAZHAKALA HOUSE
6. MARY, W/O.KUNJUMON, MOOLAYIL
For Petitioner :SRI.V.G.ARUN
For Respondent :SRI.P.GOPAL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/11/2008
O R D E R
M.N.KRISHNAN, J
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FAO No.157 OF 2008
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Dated this the 3rd day of November 2008
JUDGMENT
This appeal is preferred against the judgment of the Addl.District
Court(Spl.), Kottayam in A.S.No.31 of 2002. The said appeal was preferred
against the judgment and decree of the Munsiff’s Court, Kanjirappally in
O.S.No.156 of 1999. The trial court dismissed the case of the plaintiffs and
the plaintiffs filed the appeal in which they moved an application for
amendment which was allowed by the appellate court and was remanded
back to the trial court for fresh consideration of the case. It is against the
said order of remand, the FAO is filed before this Court.
2. The brief facts are necessary to understand the dispute between the
parties. There are 3 items in the plaint schedule property. Item 1 is having a
extent of 1 acre 15 cents of property and item 2 is about 5 cents of property
on the south western portion and item 3 is the building situated in item 2 of
the plaint schedule property. The suit is one for recovery of possession of
item 2 of the plaint schedule property after demolition of the building
situated therein, which is item 3 and for injunction with respect to the
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remaining portion of item 1 of the plaint schedule property and also for
damages. It is the contention of the plaintiffs that one Kutty and Yohannan
@ Kutty Mooppan were the children of one Azhakan. Plaintiffs are the
children, who are claiming through Yohannan @Kutty Mooppan. The other
son of Azhakan, viz., Kutty had a son, namely Gopidas and a daughter
Aleykutty @ Thankamma. Defendants 4 to 6 are the children of Gopidas
and defendants 1 and 3 are the children of Aleykutty @ Thankamma. The
2nd defendant is the husband of the first defendant. The contention of the
defendants is that they were living along with their grandfather and they had
been in continuous possession of the property and therefore plaintiffs do
not have any right over the plaint schedule property and so they request for
non-suiting the plaintiffs. The trail court found that item 2 of the plaint
schedule property is not identifiable and therefore refused the prayer with
respect to item 2 and demolition of the building in item 3 and thereafter
further proceeded to hold that the remaining part, viz., item 1 is not proved
to be in possession of the plaintiffs and therefore non-suited the plaintiffs. It
is against that decision the plaintiffs preferred the appeal before the
appellate court.
3. Plaintiffs in the appellate stage moved an application for
amendment as I.A.No.1582 of 2007. A perusal of the affidavit in support of
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the said amendment application would reveal that they wanted to amend the
plaint so as to incorporate a prayer for recovery of possession of item 1 of
the plaint schedule property also on the strength of their title. The appellate
court in order to avoid multiplicity of suits and for adjudication of the suits
in an effective manner remanded the case for fresh trial. Aggrieved by that
decision, defendants in the suit have come up with this FAO.
4. A perusal of the decision of the Apex Court in the decision
reported in Puran Ram v. Bhaguram(2008(4) KLT 233(SC) would show
that the courts are having discretion in allowing application for amendment
of plaint even where the relief sought to be added by amendment is
allegedly barred by limitation. At that stage, no court may be in a position to
find out regarding the actual question whether it is barred by limitation
unless there are admitted facts before a court to render a finding on the
same. Now, it has been the consistent case of the plaintiffs that they were in
possession of the property, viz., item 1 of the plaint schedule property even
on the date of the institution of the suit and according to them the
amendment is necessitated only on account of the finding of the court
below that they are not in possession of the property. So far as item 2 is
concerned, it is their case that defendants had been permitted to put up a
building therein and they had done so and it being only a permissive
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possession they are entitled to recovery of possession of the property. The
question of limitation is a mixed question of fact and law and when an
application for amendment is allowed, it is necessary to permit the
defendants to file an additional written statement raising all the contentions
which is permissible under law. It is also a settled principle that defendants
in their written statement are even permitted to raise consistent pleas but
ultimately has to choose one at the trial stage. The larger question of
adverse possession or limitation is a matter that will arise for consideration
only when the pleadings are amended and written statement is filed and
issues are raised. So I do not want to further discuss the matter and
express a view so as to shut out the case of either of the parties. I do not
find any ground to interfere with the decision rendered by the District Court
in remanding the case and therefore I dismiss the FAO making it clear that
defendants in the case are permitted to raise all the contentions in their
additional written statement they want to raise which is permissible under
law.
M.N.KRISHNAN, JUDGE
Cdp/-
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