BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/08/2010 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CRP NPD(MD)No.510 of 2005 and CMP(MD)No.2419 of 2005 Thimmai Venkatachalam .. Petitioner/Appellant Vs. R.D.Sigamani .. Respondent/Respondent Civil Revision Petition filed under section 115 of CPC against the order dated 09.11.2004 passed in I.A.No.9 of 2004 in Appeal Suit No.3 of 2003 by the Principal Sub court, Thanjavur. !For Petitioner ... Mr.V.K.Vijayaraghavan ^For Respondent ... Mr.D.R.Murugeshan :ORDER
This civil revision petition has been preferred against the order dated
09.11.2004 passed in I.A.No.9 of 2004 in Appeal Suit No.3 of 2003 by the
Principal Sub court, Thanjavur.
2. The revision petitioner herein as plaintiff has instituted Original
Suit No.59 of 1998 on the file of the District Munsif Court, Thiruvaiyaru for
the relief of perpetual injunction, wherein the present respondent has been
shown as sole defendant. The trial Court has dismissed the suit. Against the
Judgment and decree passed by the trial court, Appeal Suit No.3 of 2003 has been
preferred on the file of the Court below. During pendency of the same, the
petition in question has been filed in I.A.No.9 of 2004 under Order 6 Rule 17 of
the Code of Civil Procedure, 1908 praying to permit the revision petitioner
/petitioner/plaintiff to make amendment in the plaint as set out in the
petition. The Court below after considering all the divergent contentions raised
on either side has dismissed the petition. Against the dismissal order the
present civil revision petition has been filed at the instance of the
petitioner/plaintiff as revision petitioner.
3. Before considering the rival submissions made on either side, it would
be apropos to look into the averments made in the plaint filed in Original suit
No.59 of 1998. In paragraph – 1 of the plaint it is stated like thus:
“The suit property morefully described hereunder is the ancestral property
of the plaintiff. The plaintiff’s father Thimmi Ramasamy and his brother
Renganathan, son of his paternal uncle Rajamannar has acquired the property and
the said Renganathan Chettiar has left very long back to Patteswaram by leaving
the entire property to the exclusive enjoyment of the plaintiff’s father. Thus
the plaintiff’s father has solely acquired the property by ousting his brother
S.Renganathan chettiar. The said Renganathan chettiar has died. After his death
his son Rajaraman has given a registered release deed in favour of the plaintiff
by attorning and informing the relinquishment made by his father. The other
heirs are predeceased and the said Renganathan chettiar and one Adilakshmi wife
of Srinivasan who has predeceased his father has also left the village and set
up her family at Patteswaram along with her mother. The plaintiff files the
above mentioned release deed dated 30.10.81 into the Court and prayed that the
same may be treated as part and parcel of the plaint. Thus the exclusive
enjoyment and ouster of other sharers to the property has been clearly mentioned
in the above said document. ….”
4. From the close reading of the main averments made in the plaint, it is
easily discernible that the plaintiff has claimed exclusive title to the suit
property by virtue of the alleged relinquishment made by S.Renganathan chettiar
and his son by name Rajaraman under a release deed dated 30.10.1981.
5. Now the Court has to look into the petition filed in I.A.No.9 of 2004
under Order 6 Rule 17 of the Code of Civil Procedure, 1908.
6. Order VI Rule 17 of the said Code reads as follows:
“The Court may at any stage of the proceedings allow either party to alter
or amend his pleadings to such manner and on such terms as may be just, and all
such amendments shall be may as may be necessary for the purpose of determining
the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the
commencement of trial.
7. From the close reading of the said provision, it is made clear that
amendment of pleadings can be allowed at any stage of proceedings. But at the
same time, amendment of pleadings shall not be allowed after trial has
commenced, unless the Court comes to a conclusion that inspite of due diligence,
the concerned party could not have raised the matter in question before
commencement of trial.
8. In the petition in question, the proposed amendment has been stated
like thus:
“The defendant herein claims title over the northern portion in the front
and the kollai portion further north and west of plaintiff’s portion of the suit
property adjoining the road by means of a purchase from one A.N.G.Kanakiraman.
The defendant relies upon a registered sale deed dated 01.12.1996. The plaintiff
submits that the vendor of the defendant Janakiraman is none other than the
blood brother of Ambujakshi Ammal who claims to have purchased the suit property
in Court auction in execution of a decree in E.P.No.25/1963. The defendant is
the son in law of the said Ambujakshi Ammal. The sale deed dated 20.06.1974 said
to have been executed by Ambujakshi Ammal in favour of the vendor of the
defendant will not confer any title and neither Ambujakshi ammal nor her vendee
Janakiraman and his successor the defendant has ever been in possession of any
portion of the suit property. In fact the alleged court auction purchaser
Ambujakshi Ammal has not taken delivery of the property and it continues to be
in possession of the plaintiff since 1961. Hence on the date when the first
portion of the suit property was put up in court-auction Ranganathan chettiar
himself had no title over the same, he having lost it by the plaintiff having
been in continuous possession in assertion of his own right adverse to title. As
such the plaintiff had perfected title to that portion by being in adverse
possession. Hence assuming Ranganathan chettiar had any title he had lost it to
the plaintiff who has been openly asserting his title to the same. In the
circumstances, neither the defendant nor his predecessors in interest have title
to the portion purchased by the defendants. In the circumstances neither the
defendant nor his predecessors in interest have title to the portion purchased
by the defendants. In the circumstances the plaintiff is entitled to the relief
of declaration in respect of an area of 3686 sq.feet in the northern portion of
the suit property which is mentioned as schedule ‘B’ hereunder. In view of the
fact that the defendant does not claim any right over any other portion except
the area of 3686 sq.feet in the northern potion which is described as schedule
‘B’ hereunder. No relief is asked for in respect of the remaining area which
admittedly belongs to the plaintiff.”
9. The sum and substance of the proposed amendment is that the plaintiff
has perfected title to the suit property by adverse possession.
10. In the main averments made in the plaint it has been specifically
stated that the plaintiff has derived exclusive title to the suit property by
virtue of relinquishment made by S.Renganathan chettiar and registered release
deed executed by his son. If really the plaintiff has acquired exclusive title
to the suit property by way of ouster he need not obtain a deed of
relinquishment from the son of the said S.Renganathan chettiar. Therefore, it is
quite clear that the plaintiff has claimed exclusive title to the suit property
only by way of relinquishment alleged to have been made by the said Renganathan
chettiar and his son.
11. The amendment sought to be included in the plaint is that the
plaintiff has perfected title to the suit property by adverse possession.
Therefore, it is pellucid that by way of proposed amendment, an attempt has been
made on the part of the plaintiff to change source of title to the suit
property. It is an everlasting principle of law that by way of amendment, source
of title to suit property cannot be allowed. In the instant case, as narrated
earlier, in the plaint it has been specifically stated that the plaintiff has
derived exclusive title to the suit property by virtue of the alleged
relinquishment. But in the present petition, an attempt has been made to change
source of title by way of introducing the plea of adverse possession. Since the
plaintiff has attempted to change source of title to the suit property by way of
filing the present petition, it is needless to say that the same is liable to be
thrown out in limini.
12. The learned counsel appearing for the revision petitioner has made
inert attempts by arguing that the plea of ouster has been properly pleaded in
the plaint. Under the said circumstances, plea of adverse possession can easily
be admitted and the Court below has erroneously dismissed the present petition
and further the revision petitioner/petitioner/plaintiff has attempted to
withdraw the suit by way of filing a petition in I.A.No.6 of 2003, wherein a
detailed counter has been filed on the side of the respondent. In the counter,
the respondent has clearly stated that the plaintiff ought to have sought for
declaration in respect of the suit property. Under the said circumstances the
present petition has been filed and the Court below has failed to look into it
and therefore, the entire order passed by the Court below is liable to be
interfered with.
13. In order to repudiate the arguments advanced by the learned counsel
appearing for the revision petitioner, the learned counsel appearing for the
respondent has also equally contended that in the present petition an attempt
has been made on the part of the plaintiff to change source of title to the suit
property and the Court below after considering all the rival contentions raised
on either side has rightly dismissed the petition and therefore, the dismissal
order passed by the Court below need not be interfered with.
14. It has already been narrated in detail that in the main averments made
in the plaint it has been initially stated that the plaintiff has ousted his
brother by name S.Renganathan chettiar and subsequently in categorical terms it
is averred that the plaintiff has become exclusive owner of the suit property by
way of relinquishment alleged to have been made by the said S.Renganathan
chettiar and his son. If really the plaintiff has claimed exclusive title to the
suit property by way of ouster, he need not introduce the deed of relinquishment
alleged to have been executed by the son of S.Renganathan chettiar. Therefore,
the definite case of the plaintiff is that he is having exclusive title to the
suit property by way of relinquishment alleged to have been made by the said
S.Renganathan chettiar and his son. Further, it has already been pointed out
that a faint attempt has been made by way of filing the present petition so as
to change source of title and the same cannot be allowed in law.
15. Of course it is true that the revision petitioner has made an attempt
to withdraw the suit by way of filing the petition in I.A.No.6 of 2003 wherein
on the side of the respondent a detailed counter has been filed. In paragraph –
6 of the counter it has been simply stated that “when the petitioner contend
that in the suit for permanent injunction, question of title cannot be decided,
then nothing prevents him to go for any comprehensive suit as stated in the
affidavit without withdrawing the present suit.”
16. From the averments made in the counter, the Court can easily come to a
conclusion that on the side of the respondent it has been stated that the
plaintiff can very well file a comprehensive suit. That itself has not paved the
way for changing source of title on the part of the plaintiff. Therefore,
viewing from any angle, the entire argument advanced by the learned counsel
appearing for the revision petitioner cannot be accepted and whereas the
argument advanced by the learned counsel appearing for the respondent is really
having subsisting force.
17. The learned counsel appearing for the revision petitioner has drawn
the attention of the Court to the following decisions:
(a) In Rajesh Kumar Aggarwal & others V. K.K.Modi & others (2006 – 2 –
L.W. 776), the Hon’ble Supreme Court has held that “it is settled law that the
merits of the amendment sought to be incorporated by way of amendment are not to
be adjudged at the stage of allowing prayer for amendment.”
18. In the case referred to supra, it is stated that the beneficiaries of
the trust were not derived any benefit from the trust and were constrained to
file suit for declaration, permanent injunction and mandatory injunction and
subsequently defendant No.1 has been removed from office. Under the said
circumstances the amendment in question has been sought for and the Honourable
Apex Court has held as indicated above.
(b) In N.Chellan Vs. S.Nagaraja Perumal (2009 (1) T.N.C.J. 481 (Mad (MB),
this Court has held that “since no new cause of action has arisen and no
prejudice caused to other side, amendment can be allowed.”
(c) In Naduri Yogananda Lakshminarasimhachari and others V. Sri
Agastheswaraswamivaru (AIR 1960 Supreme Court 622), the Honourable Apex Court
has held that “amendment can be allowed even in appeal stage for adding a new
prayer.”
19. In the instant case, it has already been pointed out in many places
that on the part of the plaintiff, an attempt has been made by way of filing the
present petition so as to change source of title to the suit property.
Considering the fact that source of title to suit property cannot be changed by
way of amendment, it is needless to say that the aforesaid propositions of law
settled by the Honourable Apex Court as well as this Court cannot be applied in
the present petition. Therefore, viewing from any angle the order passed by the
Court below is perfectly correct and the same need not be interfered with.
20. In fine, this civil revision petition deserves dismissal and
accordingly is dismissed without cost. Connected Miscellaneous petition is also
dismissed. The order passed in I.A.No.9 of 2004 in Appeal Suit No.3 of 2003 by
the Principal Sub court, Thanjavur is confirmed.
mj
To
The Principal Sub court,
Thanjavur