IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 23087 of 2007(W)
1. MAVELI DEVASYA'S WIFE ROSAMMA,
... Petitioner
2. XAVIER, S/O.MAVELI DEVASYA, RESIDING
3. MAVELI MATHEW'S WIFE ANNAMMA MATHEW,
Vs
1. P.N.VENKIDA SUBRAHMANIAYYAR (LATE)
... Respondent
2. P.V.NARAYANAN, S/O. P.N.VENKIDA
3. P.V.SESHADRI, S/O. P.N.VENKIDA
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/07/2007
O R D E R
M.N.KRISHNAN, J.
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WP(C)No. 23087 OF 2007 W
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Dated this the 27th July, 2007.
JUDGMENT
This writ petition is filed seeking to set aside the
order of the learned Subordinate Judge, Manjeri in
I.A.1273/06 in O.S.145/2002. It was an application filed
by the plaintiff for amendment of the plaint. A suit was
pending before the Hon’ble High Court of Madras and during
its pendency a compromise was entered into between the
parties and it is averred that items 210 to 282 of the
plaint schedule property therein was set apart to the share
of the plaintiffs jointly and therefore the plaintiffs are
claiming right over that property. They had given
description of the property in that fashion and when a
commissioner appointed by the court visited the property he
found that the survey numbers, description etc. are
incorrect and he had plotted the plaint schedule property
as shown by the plaintiffs which takes in a different
survey number, description etc. Whatever it may be, in
order to succeed in a case of this nature the plaintiff has
to establish that the property now claimed were obtained by
them in pursuance of the decree passed by the High Court of
Madras and until and unless they are able to establish that
the property now incorporated by amendment is the property
WPC 23087/07 2
which they had obtained under the decree, the plaintiff
will not be entitled to any decree. It has to be
understood that at a point of time when thousands of acres
of property were involved in a suit and a receiver was
appointed and the receiver giving the schedule of
properties, naturally there would have been omissions and
commissions. Therefore that shall not be used as a weapon
to dislodge the case of a party if really the party is
entitled to the property in law. Therefore, by the
amendment no special right is conferred on the plaintiff
but it is made easier for the court to consider the
question whether the property as amended and incorporated
is obtained by the plaintiff by virtue of the document of
title relied on by them. So far as adverse possession is
concerned, it is a settled law that there must be an
admission of title of the person against whom adverse
possession is claimed. I am not going much into the
details because it may prejudice the right of the party at
a later stage. Therefore, by allowing the amendment no
undue hardship is caused, it will not change the character
of the suit but it is really necessary for resolving the
controversy between the parties. I make it clear that the
defence in their additional written statement can take all
the defence available including the plea of adverse
WPC 23087/07 3
possession and limitation and the identity of the property
and the court has to dispose of the matter after permitting
both sides to adduce evidence in support of their
respective contentions. Therefore, I am not inclined to
interfere with the order passed by the learned Subordinate
Judge and therefore this writ petition is dismissed.
M.N.KRISHNAN
Judge
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