Hariharan Nair v. Omana Amma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 **RSA.NO. 777 OF 2010()** --------------------{AS.167/2003 OF THE SUB COURT,NEYYATTINKARA IN OS.69/2000 OF II ADDL.M.C., NEYYATTINKARA} .................... APPELLANT (S): APPELLANT/PLAINTIFF --------------------------------------------- HARIHARAN NAIR,S/O.THANUVAN THAMPI, AGED 89,RESIDING AT HARI MANDIRAM,PANAVILA DESOM, KOLLAMKODE VILLAGE,KANYAKUMARI DISTRICT. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): DEFENDANTS ------------------------- 1. OMANA AMMA,AGED ABOUT 50,RESIDING AT KALIYALKETTIYA MOOLA,MEKKEPUTHEN VEEDU, ANCODE DESOM,PERUMKADAVILA VILLAGE-695124. 2. BENSON,S/O.PONNAMMA,AGED ABOUT 48, RESIDING AT ADUPPUPARAYADI KALIYALKETTIYA MOOLAYIL PUTHEN VEEDU,ANKODE DESOM, PERUMKADAVILA VILLAGE-695124. 3. THANKAN,S/O.PONNAMMA,AGED ABOUT 47 YEARS RESIDING AT LAVANIYA VIHAR,NARANI,KUNNATHUKAL DESOM,KUNNATHUKAL VILLAGE-695504. 4. THANKAPPAN NAIR,AGED ABOUT 66 YEARS, RESIDING AT PARAKUDIVILA VEEDU,CHENNILODE, MEDICAL COLLEGE,KANNAM MOOLA, THIRUVANANTHAPURAM-695011. 5. K.SREEDHARAN,AGED ABOUT 42,TEMPLE LINE, THOZHUVANCODE,VATTIYOORKAVU, THIRUVANANTHAPURAM-695 013. **RSA.NO. 777 OF 2010 :: 2 ::** 6. RAJA RETHINAM,S/O.N.R.K.RAVEENDRA, AGED ABOUT 40 YEARS,RESIDING AT 'ARUNACHALAM', SIVAKASI ROAD,KAMARAJ DISTRICT,MADURAI-626123. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN** **----------------------------------------** ## **R.S.A.No.777 of 2010** **----------------------------------------Dated this the 14[th] day of September, 2010** ## **JUDGMENT** Plaintiff is the appellant. Suit for declaration of title and injunction was dismissed by the trial court, which was upheld by the lower appellate court. Concurrent decision so rendered by the two courts below, negativing the suit claim is challenged in the second appeal. 2. Plaintiff claimed title and possession over 2 acres 37 cents of land under Ext.A1 sale deed executed in his favour by two persons Kamalakshy Amma and Valliamma Pillai. Exts.A2 to A5 are the prior title deeds relating to the above property. It is his case that under Ext.A4 partition deed properties taking in the plaint schedule property had been allotted to Narayana Pillai Kochummini Pillai and Narayana Pillai. Property obtained by Kochummini Pillai was conveyed by him to one Kumara pillai as per Ext.A5 document. The above said Kumara Pillai died unmarried and on his death, the property **2** ## **R.S.A.No.777 of 2010** devolved upon his mother Valliamma Pillai. Narayana Pillai, the other sharer under Ext.A4 deed, transferred one half of the right over the property obtained by him in favour of Kalliani Pillai Lakshmi Pillai and later her daughter Kamalakshy Pillai obtained the right over the property under Ext.A3 deed. The above said Kamalakshy Pillai and Valliamma Pillai jointly executed Ext.A1 sale deed in favour of the plaintiff and thereby he obtained title and possession over the property comprising the plaint schedule property was the case of the plaintiff. Plaint schedule description showing an extent of 2 acres 37 cents of land, in respect of which title was claimed under Ext.A1 deed tracing the title as described above under Exts.A2 to A5 documents, was the property left behind after the transfer of a portion of the property under Ext.A1 effected by the plaintiff and acquisition of 15 cents from such property for constructing a channel. Defendants 1 and 2 are stated to be eastern property owners, the 3[rd] defendant the northern property **3** ## **R.S.A.No.777 of 2010** owner and defendants 4 to 6 persons claiming under defendants 1 to 3. The plaint schedule property and neighbouring properties are rocky area and in the property of defendants 1 to 3, quarrying works are going on and, to facilitate such works, they are making attempts to cut open a road through the plaint schedule property was urged to lay the suit for the relief of declaration of title and injunction against the defendants in respect of the plaint schedule property. 3. The 2[nd] defendant separately and defendants 4 to 6 jointly filed written statements resisting the suit claim. Other defendants remained ex parte. The contesting defendants denied the title of the plaintiff over the suit property disputing the right of the family which entered into Ext.A4 partition deed. The case of the plaintiff that Kumara Pillai, was a transferee of Kochummini Pillai, one of the sharers under Ext.A3 partition deed, and he died as a bachelor and that his right over the property devolved upon **4** ## **R.S.A.No.777 of 2010** his mother, was impeached by these defendants. The description of the plaint property was also challenged contending that there is no such property. These defendants in their respective written statement also set forth claims over portions of the property under certain registered sale deeds, in the same survey number of the plaint property, contending that the plaintiff has no property adjacent to the properties obtained by them under such deeds. 4. On the issues settled based on the pleadings of the parties, the plaintiff examined himself as PW.1 and exhibited Exts.A1 to A9. An advocate commissioner, after local inspection, filed a report and plan as Exts.C1 and C1 (a). No evidence was tendered by the defendants. 5. On the materials placed, the trial court found that under Ext.A4 partition deed, the allotment made in favour of Kochummini Pillai and Narayana Pillai was only of Oodukoor rights in the properties, and under Ext.A5 sale **5** ## **R.S.A.No.777 of 2010** deed executed by Kochummini Pillai, a larger extent than what was allotted to him is shown as having been conveyed in favour of the transferee. Similar was the case of Ext.A3 sale deed as well which also disclosed that a larger extent of property than that was allotted as Oodukoor rights under Ext.A4 partition deed, was conveyed by such sale. Apart from the above material circumstance that Ext.A4 partition deed made allotments only of Oodukoor rights over specific properties to the sharers and that the transfers effected by them was more than the allotment made, from report and plan prepared by the advocate commissioner, it was also found that there is no property as described in the plaint schedule, which according to the plaintiff was lying contiguously as a single part. Though the plaintiff claimed possession and enjoyment of the property pursuant to Ext.A1 sale deed in his favour, the non-production of any revenue receipt evidencing payment of land revenue, which was sought to be explained away stating that he had lost **6** ## **R.S.A.No.777 of 2010** such records in floods, was also taken note of by the courts below to conclude that the declaration of title sought for by the plaintiff cannot be granted. The plaintiff as PW.1 in his evidence had stated that sixty cents of the property covered by the plaint schedule property had been trespassed upon by the defendants. No relief of recovery of possession was canvassed despite admitting trespass as indicated above, also weighed with the trial court in non-suiting the plaintiff. 6. In the appeal against the decree dismissing the suit, the plaintiff moved an application to amend the pleadings to set up a case that pursuant to Ext.A4 partition deed allotting property in Oodukoor, there was an oral partition between the sharers by which they obtained properties separately with exclusive possession, and also to correct plaint schedule reducing its extent to 1 acre and 1/6 cents. That application was resisted by the contesting respondents/defendants in the appeal, as highly belated and meritless. The lower appellate court, after considering **7** ## **R.S.A.No.777 of 2010** the totality of the the facts and circumstances involved in the case, with reference to the materials produced, taking note and observing that it is highly belated and it will change the nature and character of the suit, dismissed that application. After re-appreciating the evidence with reference to the pleadings, the court below found that no case has been made out to interfere with the decision of the trial court dismissing the suit and accordingly, the appeal was dismissed. 7. Learned counsel for the appellant relying on a number of authorities viz., Rajesh Kumar Aggarwal & ors v. K.K.Modi & ors {2006 SAR (Civil) 356}, State Bank of Hyderabad v. Town Municipal Council {2007 SAR (Civil) 25}, Ramachandra Sakharam Mahajan v. Damodar Trimbak Tranksale (D) & ors {2007 SAR (Civil) 707} and Usha Devi v. Rijwan Ahamd & Ors {2008 SAR (Civil) 209}, contended that the dismissal of the amendment application (I.A.No.859/08) preferred in the appeal by the lower **R.S.A.No.777 of 2010** **8** appellate court was improper and unjustified. The amendment application can be filed at any stage of the suit, even in appeal, and without anything on record indicating that the amendment sought for is unworthy of any merit, and only intended to prolong the litigation, that application should have been allowed enabling the plaintiff to prove his case on the basis of such amendment especially where the suit is for protecting his title over the immovable property is the submission of the counsel. The reasons stated by the lower appellate court, that the application for amendment was belated and that it would change the character of the suit, at any rate, cannot be justified, according to the counsel, and that too where the defendants has not let in any counter evidence either orally or documentary to resist the claim of the plaintiff over the plaint property. 8. On the facts involved and submissions made by the counsel for the appellant, needless to state, the merit of the second appeal solely rests upon the **R.S.A.No.777 of 2010** **9** correctness of the order passed by the lower appellate court rejecting the amendment application moved by the plaintiff in his appeal. The application for amendment was moved nearly five years after the filing of the appeal weighed with the lower appellate court to hold that it was highly belated. Suit being one for declaration of title, such delay could have been condoned, if there are justifiable reasons persuading this court that the amendment applied for is necessary for a proper and fair adjudication of the disputes involved in the suit. The learned counsel is also well justified in contending that the amendment as such would not change the character of the suit, which was the other reason stated by the lower appellate court in rejecting the application for amendment. But still, where the plaintiff seeks an amendment of the pleadings in the appeal, after disposal of his suit, setting forth a case inconsistent with the plea already made for the declaration of title applied over the suit property, necessarily, the totality of the **10** ## **R.S.A.No.777 of 2010** facts and circumstances, and the materials produced, deserve to be taken note of in deciding the merit of the amendment applied for. 9. Plaintiff has filed a suit on the basis of the Ext.A1 sale deed claiming title and exclusive possession over 2 Acres and 36 cents of land described in the plaint schedule. He did not produce any tax receipt showing payment of revenue charges over the property as the title holder. The documents produced by him, Exts.A2 to A5, merely demonstrated that the allottees under Ext.A4 got only Oodukoor rights over the properties allotted to them and the transfer deed executed, Ext.A3, by one of the allottees was for a larger extent than what was obtained under the partition deed. The case of the plaintiff that the plaint schedule property is lying contiguously as a compact plot was belied by the report of the commissioner. It is also seen that Ext.C1(a) plan was only a rough sketch which indicates that no attempt was made by the plaintiff to **11** ## **R.S.A.No.777 of 2010** identify the suit property, despite the challenge raised by the defendants claiming title and right over portions of the property. In evidence plaintiff also stated that defendants had trespassed upon a portion of the property about 60 cents, and reduced that property into their possession. 10. When that be the position, it goes without saying that the proposed amendment, whatever be the worth of it, would not enable the plaintiff to obtain the reliefs canvassed in the suit. 11. The decisions relied on by the learned counsel for the appellants has no application to the facts of the case. In Rajesh Kumar Agarwal's case {2006 SAR (Civil) 356} and Usha Devi's case {2008 SAR (Civil) 209}, in both of them the application for amendment was moved before the trial court, on the facts involved in the respective case, the amendment proposed was found necessary for resolving the real question involved between the parties. In Ramachandra's case {2007 SAR (Civil) 707} also, the **12** ## **R.S.A.No.777 of 2010** amendment application was filed before the trial court, which was, however, dismissed as belated. There also noticing that the proposed amendment would enable the court to pinpoint the real dispute, it was held, such amendment could not be dismissed for the reason that it has been belatedly filed. In State Bank of Hyderabad's case {2007 SAR (Civil) 25}, an application for amendment of the plaint moved in the first appellate court being allowed and the case remitted to the trial court for fresh trial, its correctness being challenged before the High Court the order allowing the amendment was found to be bad by the High Court with reference to the proviso brought into Order VI Rule 17 of the Code of Civil Procedure placing interdictions in entertaining such amendments except on satisfaction of the circumstances indicated thereunder. The suit in which the amendment was allowed having been instituted much earlier to the commencement of the proviso brought into Order VI Rule 17 of the Code, the apex **R.S.A.No.777 of 2010** **13** court held that the High Court was not justified in interfering with the order allowing the amendment passed by the first appellate court. 12. None of the above decisions can be of any assistance to the plaintiffs, where, as discussed earlier, the claim of title set up over the suit property by the plaintiffs riddled with inherent contradictions was against th title deeds relied upon and tendered in evidence before the court. The concurrent decision rendered by the courts below that the plaintiff is not entitled to the relief canvassed resulting in the dismissal of the suit, in such circumstances, is unassailable. The appeal lacks merits, and it is dismissed. **Sd/(S.S.SATHEESACHANDRAN) JUDGE** _**sk/-**_ ## _**//true copy//**_ ## _**P.S. to Judge.**_