IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 21118 of 2006(L)
1. OMANA SASIDHARAN,
... Petitioner
Vs
1. SREEDHARANACHARI,
... Respondent
2. SREEKUMAR,
3. BIJU,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SRI.JOHNSON P.JOHN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) NO. 21118 OF 2006
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Dated this the 19th day January of 2007
JUDGMENT
Petitioner is plaintiff and respondents
defendants in O.S.27/04, on the file of Munsiff
Court, Adoor. Petitioner is the daughter of first
respondent. Plaint schedule property, was part of
the property, which originally belonged to first
respondent and his deceased wife. Subsequent to
her death on 24.7.02, as per registered partition
deed No.608/02 the properties were divided and the
western portion was allotted to first respondent
and eastern portion to petitioner. As per the
partition deed, the property allotted to the
petitioner is having an extent of 1.83 Ares.
Petitioner instituted the suit for fixation of the
western boundary which separate the property of
first respondent from her property. Respondents 2
and 3 were impleaded as a subsequent assignees from
first respondent. A Commission was appointed.
W.P.(C)21118/06 2
Commissioner submitted a report and plan. As per
the report and plan, plaint schedule property
allotted to petitioner is having only an extent of
1.64 Ares. There is a building encroaching upon
the said property. Petitioner therefore filed
I.A.2048/05, an application under Order VI Rule 17
of Code of Civil Procedure to amend the plaint. It
was opposed by respondents contending that the
building is aged more than 20 years and the claim
for its demolition is barred by time and therefore
the plaint cannot be allowed to be amended. Under
Ext.P3 order learned Munsiff dismissed the
application. It is challenged in this petition
filed under Article 227 of the Constitution of
India.
2. Learned counsel appearing for the
petitioner and respondents were heard.
3. Though learned counsel appearing for
respondents argued that, as the building is aged
more than 20 years petitioner is not entitled to
get a decree for demolition of the building on the
ground that the claim is barred by limitation,
that question is to be decided in the suit and
W.P.(C)21118/06 3
respondents are entitled to take up the contention
in the additional written statement to be filed.
Eventhough it was argued that the building is in
the property allotted to first respondent, under
the partition deed and therefore petitioner has no
right over the land where the building stands
that is also a question to be decided in the suit
and not in an application for amendment of the
plaint. Moreover, the plaint schedule property and
the eastern property were owned by petitioner and
first respondent till it was divided in 2002, as
per partition deed 608/02. If so the plea of bar of
limitation may not lie. In such circumstance,
Ext.P3 order is quashed. I.A.2048/05 stands
allowed. Petitioner is permitted to amend the
plaint as sought for. Respondents are entitled to
file a written statement raising all available
contentions.
Writ Petition disposed as above.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006