Jomi George v. Kunjumon Thomas and George Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932** **OP(C).NO. 301 OF 2010(O)** **--------------------------------------** **AGAINST THE ORDER DATED 13/09/2010 IN IA 543/2010 IN OS.110/2009 OF MUNSIFF COURT, ETTUMANOOR** **....................** ## **PETITIONER/PLAINTIFF:** **----------------------------------** **JOMI GEORGE, S/O. GEORGE, MANNASSERY VEETTIL, KANAKKARI.P.O., KANAKKARIKARA, KANAKKARI VILLAGE, KOTTAYAM.** **BY ADV. SRI.MATHEW KURIAKOSE** **RESPONDENT(S): DEFENDANTS** **----------------------------------------------** **1. KUNJUMON THOMAS, S/O. THOMAS, MULARKATTU VEETTIL, KANAKKARI.P.O., KANAKKARI KARA, KANAKKARI VILLAGE, KOTTAYAM PIN-686632.** **2. GEORGE THOMAS, S/O. THOMAS, MULARKATTU VEETTIL, KANAKKARI.P.O., KANAKKARI KARA, KANAKKARI VILLAGE, KOTTAYAM. PIN-686632.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **---------------** **PETITIONER'S EXHIBITS: ---------------------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.110 OF 2009. EXHIBIT P2 TRUE COPY O THE INJUNCTION ORDER DATED 5.6.2009. EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT. EXHIBIT P4 TRUE COPY OF THE AMENDMENT PETITION DATED 26.6.2010 I.A. NO.543 OF 2010.** **EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED 13.9.2010 IN I.A. NO.543 OF 2010.** **RESPONDENT'S EXHIBITS: ----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.301 of 2010 ==================================== Dated this the 03[rd] day of November, 2010** ## **J U D G M E N T** Respondents though served by Special Messenger sufficiently early, remain absent. I have heard learned counsel for petitioner. 2. This petition is in challenge of Ext.P5, order passed by the learned Munsiff, Ettumanoor on I.A. No.543 of 2010 in O.S. No.110 of 2009. Petitioner filed O.S. No.110 of 2009 against respondents for a declaration that respondents have no right to construct canal destroying lateral support for item Nos.1 and 4, for restoration of item No.5 which is the collapsed portion of item No.4 (stone wall), fixation of boundary of item No.1 and for consequential relief of injunction. Case of petitioner in the plaint is that item No.1 of plaint schedule belongs to him and that item No.4 (as originally stated in the plaint schedule) formed western boundary of item No.1 and forming part of item No.1. Item Nos.2 and 3 situate on the west of item No.4 (stone wall) belonged to respondent Nos.1 and 2-defendant Nos.1 and 2, respectively. ## **O.P(C) No.301 of 2010** ## -: 2 :- Respondents started removal of earth from the western side of item No.4 (stone wall) due to which a portion of that stone wall was collapsed (item No.5). It is accordingly that declaration and other reliefs were prayed for in the suit. During the course of suit the Advocate Commissioner inspected property and measured the same with the assistance of a Surveyor. Then it was revealed that a portion of the property on the west of item No.4 (stone wall) also belonged to the petitioner. Thereon petitioner filed I.A. No.543 of 2010 for amendment of the plaint the purport of which was to incorporate in the plaint schedule portion of the property now found in the possession of the respondents (situated on the west of item No.4 – stone wall) recover possession of the said item and to claim lateral support for item No.4 and portion thus to be recovered instead of the original claim for lateral support for item Nos.1 and 4. Petitioner also wanted the portion to be recovered to be scheduled in the plaint as item No.5 and portion of the stone wall (item No.4) collapsed shown as item No.5 in the plaint schedule originally to be renumbered as item No.6. Application was opposed by the respondents on the ground that going by the averments in the original plaint boundary of the property which belonged to the petitioner is the stone wall (item ## **O.P(C) No.301 of 2010** ## -: 3 :- No.4), there was no case for petitioner that he has any property on the west of the stone wall and that amendment if allowed would alter the nature and character of the suit. Learned Munsiff accepted that objection and held that amendment if allowed would even affect prayer for lateral support claimed by petitioner from item No.3 allegedly belonging to respondent Nos.1 and 2. Observing so, application was dismissed. That order is under challenge in this petition. Learned counsel for petitioner contends that it was from the report and plan submitted by the Advocate Commissioner that it was revealed that portion of the property on the west of the stone wall (item No.4) also formed part of property belonging to the petitioner which is now sought to be recovered. Learned counsel contends that to avoid multiplicity of suits and for determination of the real dispute between parties it is necessary to amend the plaint as prayed for. 3. I have gone through the records produced before me including the rough sketch and survey plan submitted by the Advocate Commissioner. The question whether petitioner is entitled to recover possession of the portion on the west of item No.4 on the strength of title now he claims based on the report and plan is a matter to be decided by the trial court after **O.P(C) No.301 of 2010** ## -: 4 :- evidence. The court while considering prayer for amendment need not go into the merit of the claim sought to be incorporated by amendment. Learned Munsiff observed in paragraph 5 of the order that a reading of plaint would show that petitioner has admitted that property on the western side of his property – stone wall (item No.4) is the property of respondents where they have done excavation work. I must bear in mind that an admission cannot confer or extinguish title. Though it is the position of law that a party cannot be allowed to resile from an admission by amendment, this Court in **Kunhaliumma v. Rabiumma** (1997 [2] KLT 936) held that so far as admission regarding title is concerned, since admission cannot confer title it is possible to seek amendment withdrawing such admission. The same principle has to apply in the case of admission regarding lack of title also. Hence I am persuaded to think that merely because petitioner had stated in the plaint originally that the stone wall formed the western boundary of his property, he is prevented from claiming that he has title over a portion of property on the west of item No.4 (stone wall). Therefore learned Munsiff was not correct in disallowing prayer for amendment based on the so called admission in the original plaint that western boundary of property ## **O.P(C) No.301 of 2010** ## -: 5 :- belonging to the petitioner is the stone wall (item No.4). That petitioner allegedly has right over property on the west of item No.4 came to his notice, according to him, from the report and plan submitted by the Advocate Commissioner after measurement of properties. It is in the light of that, request for amendment was made. Having regard to the facts and circumstances and the nature of the reliefs sought for I am persuaded to think that it is necessary to permit petitioner amend the plaint to avoid multiplicity of suits and for determination of the real dispute between parties. So far as prayer for recovery of possession sought to be incorporated by amendment is concerned I make it clear that it will be open to the respondents to raise a plea of limitation if any, regarding that part of the prayer. Amendment is being permitted to the extent it concerned recovery of possession of property situated on the west of item No.4 subject to the plea of limitation that respondents may raise in their additional written statement. Resultantly, this petition is allowed in the following lines: (i) Exhibit P5, order dated September 13, 2010 on I.A. No.543 of 2010 in O.S No.110 of 2009 of ## **O.P(C) No.301 of 2010** ## -: 6 :- the court of learned Munsiff, Ettumanoor is set aside and that application will stand allowed with the observation that so far as prayer for recovery of possession of item No.5 (as shown in the application for amendment) is concerned it will be open to respondents to raise plea of limitation if it is available to them, in which case learned Munsiff shall decide that question after trial of the suit. (ii) Petitioner shall carry out amendment in the plaint within fourteen (14) days from the date of receipt of a copy of this judgment in the trial court. Needless to say that on carrying out amendment learned Munsiff shall grant opportunity to the respondents to file additional written statement if any, in answer to the amended plaint. ## **THOMAS P. JOSEPH, JUDGE.** vsv