IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 22/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (NPD)No.73 of 2002
Ramasamy Pandithar. ... Petitioner.
-Vs-
Ramalinga Kounder. ... Respondent.
Civil Revision Petition filed under Section 115 C.P.C. against the
order and decretal order dated 15.2.2001 and made in I.A.No.304 of 2000 in
A.S.No.131 of 1999 on the file of the II Additional Sub Court, Villupuram.
!For petitioner : Mr.R.Yashod Vardhan.
^For respondent : Mr.K.Mani.
:ORDER
The revision petitioner is the plaintiff in O.S.No.47 of 1998 on the
file of the District Munsif Court, Villupuram. The revision is filed against
the dismissal of the amendment petition I.A.No.304 of 2000 in A.S.No.131 of
1999 on the file of the II Additional Sub Court, Villupuram, to amend the
plaint for delivery of vacant possession of the plaint ‘B’ schedule property
and stating that it was trespassed by the defendant after filing of the suit,
as per order dated 15.2.2001.
2. In the affidavit filed in support of the said amendment petition,
the plaintiff has stated that after filing of the suit, the
respondent/defendant trespassed into a portion of his property on the South
and therefore, recovery of possession is also to be sought for, for which
purpose, the plaintiff filed the amendment petition as stated in the petition.
3. The amendment petition was opposed in the counter that though the
plaintiff was fully aware, even at the stage of trial that the defendant is in
possession of ‘B’ schedule property, no step has been taken to amend the
plaint at that stage. No petition was filed to amend the plaint seeking
recovery of possession before evidence was let in or before the judgment was
pronounced in the suit. After filing of the written statement, the plaintiff
filed a petition seeking police help and the petition was dismissed, against
which no appeal has been filed. Even in the said petition, the plaintiff has
stated that the defendant has dug up the foundation for construction of the
brick built house. The amendment now sought for will change the character of
the suit. The suit ‘A’ schedule property has been sub divided as 480/12 and
the ‘B’ schedule property has been sub divided as 480/13. The amendment
petition is filed to delay the proceedings.
4. The trial Court on consideration of the materials available on
record, ultimately dismissed the petition. The order is challenged in this
revision petition.
5. Heard the learned counsel for the revision petitioner and the
learned counsel for the respondent.
6. The learned counsel for the revision petitioner/plaintiff argued
that the defendant has trespassed into the suit property after filing of the
suit and as such, the plaint is to be amended seeking the relief of recovery
of possession for which purpose, the amendment petition I.A.No.304 of 2000 was
filed. The learned counsel for the revision petitioner also pointed out that
such amendment can be ordered at any stage.
7. The learned counsel for the respondent/defendant argued
reiterating the stand taken in the counter that despite the fact, written
statement was filed clearly stating that the defendant is in possession of the
‘B’ schedule property and even though the plaintiff as P.W.1 admitted in his
evidence that after filing of the suit, the defendant had trespassed into the
suit ‘B’ schedule property, no petition was filed to amend the plaint suitably
seeking the relief of possession at the trial stage and even before
pronouncement of the judgment in the suit.
8. The plaintiff filed the suit O.S.No.47 of 1998 on 6.2.1998 for
permanent injunction and stating that he is in possession of the suit
property, viz.,0.03 cents in G.N.S.No.63/1A, Kedar village, Villupuram Taluk.
It is further stated in the plaint that the suit property was assigned to the
plaintiff as Inam on 16.3.1983. The defendant filed the written statement on
6.10.1998 setting out the clear case that by including the suit property which
belongs to the defendant, patta was obtained by the plaintiff for 0.03 cents
in 1983 and latter in the year 1984 patta was granted in respect of 0.01 cent
North of the temple to the defendant. The plaintiff also constructed house in
0.03 cents North excluding the land to which the patta was granted in favour
of the defendant and as such it is only the defendant, who is in possession of
the suit property.
9. On perusal of records, it appears, I.A.No.2230 of 1998 was filed
on 27.8.1998 to direct the Sub Inspector of Police, Kedar Police Station, to
help to implement the interim injunction dated 27.4.1998 granted in I.A.No.401
of 1998. In the affidavit, the plaintiff has stated that the defendant has
started construction in the property and also made pits and holes in the suit
property to the extent of 3 feet in depth and 2 feet in width for the purpose
of foundation for construction on 20.8.1998. That petition was dismissed on
8.2.1999 after contest recording finding that pursuant to the order passed on
22.1 2.1997 by the State Government, the defendant had handed over possession
of the property as early in the year 1998 for the purpose of construction of
the house in the house site allotted to him to the contractor and as such, the
case of the plaintiff that the defendant trespassed into the suit property is
unacceptable. As pointed out by the trial Court, the plaintiff was fully
aware of the fact that the defendant was in possession of the suit property,
which, according to him, the defendant trespassed after filing of the suit.
In his evidence, P.W.1, the plaintiff also admitted that the defendant
trespassed into the suit property after obtaining an order of interim
injunction and he also stated so in I.A.No.2230 of 1998 filed for police help.
Though the said petition I.A.No.2230 of 1998 seeking police help was dismissed
after contest on 8.2.1999, no appeal was filed against the said order. It is
not stated in the petition I.A.No.304 of 2000 as to when the defendant
trespassed into the suit property and it is only stated that after filing of
the suit and during the pendency of the suit. But, the plaintiff did not file
the petition for amendment seeking recovery of possession, despite the fact,
it is his definite case that after filing of the suit, the defendant
trespassed into the suit property.
10. No new case is set up in the amendment petition, in that
declaration sought for in respect of the suit property as it was originally
and now sought to be amended as ‘A’ schedule property and in seeking recovery
of possession of ‘B’ schedule property, viz., the area trespassed by the
defendant after filing of the suit to the extent of 0.0 1 cent out of ‘A’
schedule property, viz., 0.03 cents.
11. Considering the fact that the plaintiff has come forward with the
specific case that he is in possession of the suit property in respect of
which patta was assigned to him as early as in the year 1983 and that
subsequent to the filing of the suit, the defendant has trespassed into the
suit property, for which purpose, he did not take steps during the pendency of
the trial and has filed the petition I.A. No.304 of 2000 seeking recovery of
possession of the suit property at the appellate stage, it would be just and
proper if an opportunity is given to the plaintiff to amend the plaint with
regard to the relief of possession on his depositing cost to the defendant.
12. In the result, this Civil Revision Petition is allowed on
condition, the revision petitioner/plaintiff deposits a sum of Rs.3,000/- to
the credit of A.S.No.131 of 1999 in the II Additional Sub Court, Villupuram on
or before 8.6.2004, failing which, the order dated 15.2 .2001 passed in
I.A.No.304 of 2000 in A.S.No.131 of 1999 will stand. On such deposit the
Subordinate Judge is directed to dispose the appeal by August, 2004. The
respondent/defendant is permitted to withdraw the above amount out of Court.
Index :Yes.
Internet:Yes.
ts.
To
1) The II Additional Subordinate Judge,
Villupuram.
2) The District Munsif,
Villupuram.
3) The Section Officer,
V.R. Section,
High Court,
Madras.