Sarojam and others v. Government of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 3057 OF 2019** **OS 341/2014 OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA** ## **PETITIONER/S:** 1 SAROJAM AGED 63 YEARS W/O.RAJAYYAN, SIYON SADANAM, MULLUR DESOM, MULLUR VILLAGE, THIRUVANANTHAPURAM-695 521. 2 SANTHINI, AGED 37 YEARS D/O.THANKAPPAN NADAR, PULINGUDI POTTAVILA ROADARIKATHU VEEDU, MULLUR DESOM, MULLUR VILLAGE, THIRUVANANTHAPURAM-695 521. 3 SANTHOSH KUMAR, AGED 39 YEARS S/O.SREEDHARAN, PULINGUDI POTTAVILA ROADARIKATHU VEEDU, MULLUR DESOM, MULLUR VILLAGE, THIRUVANANTHAPURAM-695 521. 4 MOHANAN, AGED 41 YEARS S/O.PONNAYYAN NADAR, PULINGUDI POTTAVILA ROADARIKATHU VEEDU, MULLUR DESOM, MULLUR VILLAGE, THIRUVANANTHAPURAM-695 521. 5 CHANDRAN, AGED 43 YEARS S/O.PONNAYYAN NADAR, POTTAVILA VARUTHATTU VEEDU, MULLUR DESOM, MULLUR VILLAGE, THIRUVANANTHAPURAM-695 521. BY ADVS. G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ## **RESPONDENT/S:** 1 GOVERNMENT OF KERALA REPRESENTED BY DISTRICT COLLECTOR, OP(C) No.3057 of 2019 -2- COLLECTORATE, THIRUVANANTHAPURAM-695 001. 2 TAHSILDAR, TALUK OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM-695 001. 3 ADDITIONAL TAHSILDAR, TALUK OFFIE, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121. 4 VILLAGE OFFICER, VILLAGE OFFICE, VIZHINJAM, THIRUVANANTHAPURAM-695 521. 5 RE SURVEY SUPERINTENDENT, MINI CIVIL STATION, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121. 6 RAVINDRAN, S/O.APPU NADAR, PLAVILA VEEDU, MULLUR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM-695 521. BY ADVS. R6 - SMT.JOHN NELLIMALA SARAI SRI.ISAC T.PAUL ## **OTHER PRESENT:** R1 TO R5 GP S.UNNIKRISHNAN **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2021, THE COURT ON 10.12.2021, DELIVERED THE FOLLOWING:** OP(C) No.3057 of 2019 -3- ## **JUDGMENT** Dated this the 10[th] day of December, 2021 **Petitioners are the plaintiffs in O.S.No.341 of 2014 on the files of the Additional Munsiff's Court-II, Neyyattinkara. The suit was originally filed against the State of Kerala and its officers, arrayed as defendants 1 to 5. As per the plaint averments, petitioners are in ownership and possession of plaint A to D schedule properties. While so, pursuant to resurvey, a new plot was incorporated in the resurvey plan of Vizhinjam Village as R.S.No.772/7, by taking in portions of the properties belonging to the petitioners and others. Based on resurvey, attempts were made to demolish the structures in the petitioners' properties. Thereupon, the suit was filed for a permanent** OP(C) No.3057 of 2019 -4- **prohibitory injunction restraining the defendants from demolishing the constructions in plaint schedule properties, from cutting trees and from manner altering the lie and nature of the properties, except through due process of law.** **2. The defendants filed written statement refuting the allegations in the plaint, contending that the property comprised in ReSy.No.772/7 having an extent of 2.20 Ares is Government land and the petitioners have effected construction by encroaching upon that land. The Government land had initiated proceedings under the Land Conservancy Act and the petitioners had challenged the proceedings by filing writ petition before this Court. The writ petition having been dismissed, petitioners filed writ appeal, which culminated in Ext.P3 judgment,** OP(C) No.3057 of 2019 -5- **dismissing the appeal and declaring that the rights of the parties will abide by the decision of the civil court in O.S.No.341 of 2014.** **3. After Ext.P3 judgment, the petitioners filed Ext.P4 application for amending the plaint by bringing about certain corrections to the averments and for incorporating a prayer to declare the plaintiffs' title over plaint schedule properties. The application for amendment was stoutly opposed by the original defendants and the 6[th] respondent herein, who was impleaded as the 6[th] defendant in the suit based on the direction in Ext.P3 judgment. The main contention urged was that the relief of declaration is barred by limitation and that the attempt of the petitioners is to retract from their admissions in the plaint. By Ext.P7 order, the trial court dismissed the amendment** OP(C) No.3057 of 2019 -6- **application finding that, even if calculated from the date of filing written statement, the prayer for declaration of title is barred by limitation as per Section 58 of the Limitation Act. Aggrieved, this original petition is filed.** **4. Heard Adv.Shinod G.P, learned Counsel for the petitioners, learned Government Pleader respondents 1 to 5 and Adv.John Nellimala Sarai, learned Counsel for the 6[th] respondent.** **5. Learned Counsel for the petitioner contended that the trial court committed a manifest illegality in having dismissed the application for amendment on the ground that the relief of declaration is barred by limitation. It is pointed out that the question of limitation is** **a mixed question of law and fact and moreover, when the relief of declaration is sought, coupled with the other reliefs, Article 65 and not** OP(C) No.3057 of 2019 -7- **Article 58, of the Limitation Act would apply. In support of this proposition, learned Counsel relied on the decisions of the Apex Court in** _**Ragu Thilak D.John v. S.Rayappan and others [(2001) 2 SCC 472] and Sopanrao and another v. Syed Mehmood and others [(2019) 7 SCC 76]**_ **. The further contention is that the scope of the suit got enhanced by Ext.P3 judgment of this Court and hence, limitation ought to be computed only from that date. It is submitted that the essential ingredients for seeking the relief of declaration is mentioned in the plaint itself. Being so, the trial court committed a grave mistake in holding that, through the amendment, petitioner is seeking to alter the nature of the suit.** **6. Learned Government Pleader contended that the relief of declaration is hopelessly barred by limitation, the defendants having filed** OP(C) No.3057 of 2019 -8- **their written statement denying title of the plaintiff on 16.07.2015 and the application for amendment having been filed only on 04.06.2019, beyond the period of three years prescribed in Article 58.** **7. Learned Counsel for the 6[th] respondent contended that the conduct of the petitioners should deter this court from granting them relief. It is submitted that the 6[th] respondent had complaint regarding illegal occupation of Government land by the petitioners had resulted in the Government initiating proceedings under the Land Conservancy Act. The constructions effected by the petitioners in Government land is causing obstruction to a public way being used by the 6[th] defendant and others. The petitioners were fully aware of this fact and had deliberately not arrayed the 6[th] respondent as** OP(C) No.3057 of 2019 -9- **party to the suit. It was only after this Court directed impleadment of the 6[th] respondent that she was made a party to the suit.** **8. A reading of the impugned order shows that the application is rejected mainly for the reason that the relief of declaration of title sought to be incorporated through the amendment, is barred by limitation. In this regard, it may be pertinent to consider the decision of the Honourable Supreme Court in** _**Sopanrao (supra).**_ **Therein, the suit was for declaration of title and possession based on title. The question arose whether limitation would be governed by Article 58 or 65 of the Limitation Act. The question was answered by holding that, in a suit filed for possession based on title, the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the** OP(C) No.3057 of 2019 -10- **suit land and the main relief being of possession, the suit will be governed by Article 65 of the Limitation Act. In** _**Ragu Thilak D.John**_ **(supra), the Apex Court held that the dominant purpose of allowing an amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time being a disputed question could be made a subject matter of the issue after allowing the amendment prayed for. The position has been further clarified in** _**Pankaja and another v. Yellappa [(2004) 6 SCC 415]**_ **by holding that there is no absolute rule that amendment should not be allowed if the relief is barred by limitation. Discretion in such cases depends on the facts and circumstances of the case and will have to be exercised on judicial evaluation of the facts and circumstances in which the amendment is sought.** OP(C) No.3057 of 2019 -11- **If the granting of an amendment really subserves the ultimate cause of justice and avoid further ligation, the same should be allowed.** **9. Herein, the petitioners had raised contentions regarding their exclusive possession in the plaint itself. The plaint was sought to be amended on realising that the petitioner will not be able to sustain the relief of injunction without seeking a declaration. Going by the dictum laid down in** _**Sopanrao**_ **(supra), the question arises whether limitation would be governed by Article 58 or 65 of the Limitation Act. That being a mixed question of law and fact, the trial court should not have succinctly dismissed the application for amendment.** **In the result, the original petition is allowed. Exhibit P7 order is set aside. I.A.No.3190 of 2019 in O.S.No.341 of 2014 of the** OP(C) No.3057 of 2019 -12- **Additional Munsiff's Court-II, Neyyattinkara is allowed. The petitioners shall carry out the amendment within two weeks of receipt of a copy of this judgment. Being a suit of the year 2014, the trial court shall take earnest efforts to decide the suit at the earliest.** Sd/- **V.G.ARUN JUDGE** Scl/ OP(C) No.3057 of 2019 -13- ## **APPENDIX OF OP(C) 3057/2019** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO.341 OF 2014 ON THE FILES OF THE COURT OF THE ADDITIONAL MUNSIFF-II, NEYYATTINKARA. EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 TO 5 BEFORE THE ADDITIONAL MUNSIFF-II, NEYYATTINKARA IN OS NO.341 OF 2014. EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 13.06.2018 OF THIS HONOURABLE COURT IN WA NO.881 OF 2018. EXHIBIT P4 A TRUE COPY OF THE PETITION IA NO.3190 OF 2019 IN OS NO.341 OF 2014 FILED BY THE PETITIONER BEFORE THE ADDITIONAL MUNSIFF-II, NEYYATTINKARA. EXHIBIT P5 A TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 TO 5 TO EXHIBIT P4. EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY SIXTH RESPONDENT TO EXHIBIT P4. EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 03.07.2019 IN IA NO.3190 OF 2019 IN OS NO.341 OF 2014 OF THE COURT OF THE ADDITIONAL MUNSIFF-II, NEYYATTINKARA. RESPONDENT EXHIBITS EXHIBIT R6 A PHOTOGAPHS (4 NOS) TAKEN AT SITE ON 14.12.2020 INDICATING THE ILLEGAL CONSTRUCTION ON GOVERNMENT PORAMBOKKE LAND TO ENCROACH ILLEGALLY UPON THE PORAMBOKKE PUBLIC PATHWAY