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2003 DIGILAW 1003 (MAD)

S. Murukesan v. S. Nachammal and another

2003-07-08

S.K.KRISHNAN

body2003
ORDER: The respondent in the appeals has filed the above Civil Revision petitions against the fair and decretal order dated 30.1.2003 passed in I.A. Nos.60 and 61 of 2002 in A.S. Nos.64 and 65 of 2002 respectively by the Additional District Judge-cum-Chief Judicial Magistrate, Karur. 2. One Nachammal and Kannan have instituted a suit in O.S. No.309 of 1994 on the file of the District Munsif, Karur against Murukesan, who is the revision petitioner herein for the relief of declaration of title and injunction in respect of the suit property. Since they claim exclusive ownership over the suit property and also the title to that property, the defendant Murukesan also filed a suit in O.S. No.641 of 1995 before the same Court against the above said Nachammal and Kannan for the relief of declaration and consequential relief of recovery of possession. Since the suit properties mentioned in both the suits are one and the same and also the parties to the proceedings are one and the same, learned District Munsif tried both the suits together and passed a common judgment on 27.6.2002, by which, he dismissed the suit in O.S. No.309 of 1994 and decreed he suit in O.S. No.641 of 1995, against which, two appeals have been preferred by the plaintiffs in O.S. No.309 of 1994 before the Additional District Judge-cum-Chief Judicial Magistrate, Karur. When the said appeals are pending, the appellants, namely Nachammal and Kannan have filed I.A. Nos.60 and 61 of 2002 in A.S. Nos.64 and 65 of 2002 for amending the plaint in O.S. No.309 of 1994 and written statement in O.S. No.641 of 1995 respectively under O.6, Rule 17 of Civil Procedure Code. The said petitions were hotly contended by the revision petitioner herein. After enquiry, learned Judge allowed both the petitions. Against the said fair and decretal order, the present revisions have been filed by respondent. 3. The point that arise for consideration in this civil revision petition is: “Whether the fair and decretal order passed by the Learned Additional District Judge cum Chief Judicial Magistrate, Karur in I.A. Nos.60 and 61 of 2002 is in accordance with law.” 4. Against the said fair and decretal order, the present revisions have been filed by respondent. 3. The point that arise for consideration in this civil revision petition is: “Whether the fair and decretal order passed by the Learned Additional District Judge cum Chief Judicial Magistrate, Karur in I.A. Nos.60 and 61 of 2002 is in accordance with law.” 4. When these revision petitions were taken up for hearing before this Court, learned counsel appearing for the revision petitioner would vehemently contended that the order passed by the learned Additional District Judge is not sustainable in law and liable to be dismissed since these petitions have been filed in order to fill up the lacuna, in the sense, that though the respondents had originally raised only the vague averments regarding the adverse possession and now by amendment, they want to raise the specific plea of adverse possession, which is not at all permissible in law. It is to be noted that while passing the impugned order, the learned Additional District Judge has stated the reasons as hereunder: “On a perusal of the plaint as well as the written statement filed by the petitioners, the plea of adverse possession has been raised by the petitioners. Therefore, the amendment now sought for by the petitioners will not change the nature and character of the cases and not introduce a new case, because already the petitioners raised the plea of adverse possession. Further if the petitions are allowed, no prejudice will be caused to the respondent and in order to give an opportunity to put forth the case of the petitioners, and in the interest of justice, it is just and necessary for allowing this petitions.” 5. On a perusal of the said judgment passed by the learned district Munsif, it is stated that the plaintiffs in O.S. No.309 of 1994 have already taken the plea of adverse possession both in the plaint as well as in the written statement. While passing common order the learned Additional Judge has stated that since the plaintiffs have already taken the said plea in both the suits, the nature and character of the suit would not change. While passing common order the learned Additional Judge has stated that since the plaintiffs have already taken the said plea in both the suits, the nature and character of the suit would not change. Even though the plaintiffs sought for amendment on the basis of adverse possession, at the appeal stage, the proposed amendment sought for by the plaintiffs would not introduce a new case and the opposite parties to the proceedings may not be prejudiced. Based on the above said reasoning, leaned Judge allowed both I.As. in favour of the plaintiffs. 6. Since the plaintiffs sought for the relief of amendment at the appeal stage, it is necessary for this Court to disclose certain facts relating to the suit. It is to be noted that the plaintiffs/respondents have stated the plea of adverse possession in paragraph 4 of the plaint as here under: “The plaintiffs have perfected title to the suit property by adverse possession for well over the statutory period by running tea stall and petty shop therein and also residing in the suit property”. 7. With regard to the plea of adverse possession, the respondents/plaintiffs have raised similar plea in the written statement filed in O.S. No.641 of 1995. It is to be noted that in paragraph 8 of the written statement, it is stated as follows: “The defence and their predecessors-in-title have been enjoying the suit property openly, continuously, knowing to all including the plaintiff for more than the statutory period. Thus they have perfected title to the suit property by adverse possession and enjoyment for more than the statutory period”. 8. Apart from this, the respondents/plaintiffs have not stated anything about the plea of adverse possession elaborately. It is noted that the learned District Munsif while delivering the judgment, has not considered the factum of adverse possession. But, the learned District Munsif, while disposing the suit in O.S. No.306 of 1994, filed by the respondents herein, he has observed in his judgment in para 22 as follows: 9. Learned counsel Mr.Valliappan, appearing for the petitioner/defendant in this regard would contend that when the plaintiffs have claimed their exclusive right over the suit property as the absolute owner, they cannot claim right of adverse possession simultaneously as alternative right. Learned counsel Mr.Valliappan, appearing for the petitioner/defendant in this regard would contend that when the plaintiffs have claimed their exclusive right over the suit property as the absolute owner, they cannot claim right of adverse possession simultaneously as alternative right. It is pointed out that, originally the property belonged to one Govindasamy Naidu and after his demise, the father of the plaintiffs, namely, Subbaiya Naidu was in possession of the suit property till his life time and thereafter the plaintiffs were in possession and enjoyment over the property as absolute owners. It is pointed out by the learned counsel that the plaintiffs never claimed their right and title as the owner of the suit property and also the title of possession. It is also pointed out that the plaintiffs cannot claim the right of ownership over the suit property. Regarding the allegation of plea of adverse possession claimed by the plaintiffs over the suit property, learned Munsif dismissed the suit filed by the plaintiffs on merits. It is pointed out that even though plaintiffs have taken the plea of adverse possession, they have not adduced satisfactory oral and documentary evidence to prove the same. In such circumstances, the District Munsif dismissed the suit and that being the case, the plaintiff cannot raise the same plea again in appeal, and under such circumstance, the order passed by the learned Additional District Judge is not sustainable in law and liable to be set aside. 10. Learned counsel Mr.S.Kumaradevan, appearing for the respondents/plaintiffs would contend that while considering the necessity for amending the plaint and the written statement, learned judge has granted the relief sought for by the plaintiffs and it is pointed out by the learned Judge that it will not change the character of the suit and that proposed amendment would not be construed as introduction of a new case. It is further pointed out by the learned counsel that in order to establish their case before the Court of law, such relief has been granted by the learned Additional District Judge, Karur. Under such circumstances, the order passed by the learned District Judge would not be interfered with. 11. It is further pointed out by the learned counsel that in order to establish their case before the Court of law, such relief has been granted by the learned Additional District Judge, Karur. Under such circumstances, the order passed by the learned District Judge would not be interfered with. 11. On a careful consideration of the conventions raised by either side, this Court is not inclined to allow these civil revision petitions for the following reasons: (1) As rightly pointed out by the learned that the petitions have been filed by the respondents/plaintiffs to fill up the lacuna, in the sense that the respondents had originally raised only vague averments regarding adverse possession. (2) In introducing a new case in the sense, if the respondents are being allowed to raise specific plea regarding adverse possession, it is not permissible in law. (3) Though the respondents/plaintiffs have already raised the sufficient plea of adverse possession in the suit, they failed to establish their claim by adducing satisfactory oral and documentary evidence. In such circumstance, there is no necessity for them to raise the same plea by way of seeking amendment at the appeal stage. (4) The said petition is being filed for amending the plaint only to protract the proceedings further. 12. In view of the above, this Court finds that the order passed by the learned Additional District Judge is not sustainable in law and there are sufficient reasons to interfere with the conclusion arrived at by the learned Additional District Judge, Karur and hence, the order of the additional District Judge is liable to be set aside and accordingly, it is set aside. 13. In the result, the civil revision petitions are allowed. No costs. Consequently, connected C.M.Ps. are allowed.