Ramasamy Pandithar vs Ramalinga Kounder

S. Sardar Zackria Hussain, J.—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.

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.

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.

The trial Court on consideration of the materials available on record, ultimately dismissed the petition. The order is challenged in this revision

petition.

Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

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.

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.

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.

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 22.12.1997 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.

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 0.01 cent out of ''A'' schedule property, viz., 0.03 cents.

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.

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.