Court dismissed the second appeal where the appellant challenged the dismissal of a suit for declaration of title. The High Court held the amendment application for alter plea was belated and meritless, and the underlying suit was rightly dismissed due to contradictions in title and lack of evidence.
The second appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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
RSA.NO. 777 OF 2010
:: 2 ::
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S.S.SATHEESACHANDRAN
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R.S.A.No.777 of 2010
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Dated this the 14th 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.
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
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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 3rd defendant the northern property
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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.
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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.
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.
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
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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
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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.
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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.
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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.
by the counsel for the appellant, needless to state, the merit of the second appeal solely rests upon the
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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
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facts and circumstances, and the materials produced, deserve to be taken note of in deciding the merit of the amendment applied for.
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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.
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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
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court held that the High Court was not justified in interfering with the order allowing the amendment passed by the first appellate court.
The appeal lacks merits, and it is dismissed.
Sd/(S.S.SATHEESACHANDRAN) JUDGE
sk/-
//true copy//
P.S. to Judge.
3 issues framed by the court
Whether the lower appellate court rightly dismissed the appellant's application to amend pleadings in appeal regarding the extent of suit property and oral partition.
Whether the appellant is entitled to declaration of title and injunction given the contradictions in title deeds and lack of revenue receipts.
Whether the concurrent decision of courts below dismissing the suit is unassailable.
Colour shows how this judgement treated each authority
Rajesh Kumar Aggarwal & ors v. K.K.Modi & orsDistinguished¶74
Rajesh Kumar Aggarwal & ors v. K.K.Modi & ors {2006 SAR (Civil) 356}
State Bank of Hyderabad v. Town Municipal CouncilDistinguished¶75
State Bank of Hyderabad v. Town Municipal Council {2007 SAR (Civil) 25}
Ramachandra Sakharam Mahajan v. Damodar Trimbak Tranksale (D) & orsDistinguished¶74
Ramachandra Sakharam Mahajan v. Damodar Trimbak Tranksale (D) & ors {2007 SAR (Civil) 707}
Usha Devi v. Rijwan Ahamd & OrsDistinguished¶74
Usha Devi v. Rijwan Ahamd & Ors {2008 SAR (Civil) 209}
Hariharan Nair
Omana Amma
Benson
Thankan
Thankappan Nair
K Sreedharan
S.S.Satheesachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
