Dismissed

Paily v. Ouseppachan

Kerala HC16 Feb 2016OP(C)/465/2016

Case brief

AI extract

What is this about?

The High Court dismissed an original petition seeking to amend a plaint in a property suit. The court held that for an alleged 1986 sale, the transaction was complete, so claiming a sale deed was impermissible. Furthermore, seeking specific performance via amendment was not pleaded and would alter the suit's character, warranting dismissal.

What did the court decide?

Application to amend plaint incorporating prayer for sale deed execution was dismissed; original petition dismissed.

Paily Vs Ouseppachan — Partition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937

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OP(C).No. 465 of 2016 (O)

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IA NO. 1449/2014 IN OS 509/2013 of MUNSIFF COURT, ALUVA

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PETITIONERS :

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--------------------

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1. PAILY, AGED 78 YEARS, S/O. RAPPAI, KARINGEN HOUSE, NADUVATTAM KARA, MALAYATTOOR VILLAGE, ALUVA TALUK.

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2. ANTONEY, AGED 46 YEARS,S/O. PAILY, KARINGEN HOUSE, NADUVATTAM KARA, MALAYATTOOR VILLAGE, ALUVA TALUK.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENT :

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---------------------

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OUSEPPACHAN, AGED 55 YEARS, S/O. RAPPAI, PULYADAN HOUSE, NADUVATTAM KARA, MALAYATTOOR VILLAGE, ALUVA TALUK.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 465 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: - TRUE COPY OF THE PLAINT IN OS NO. 509/2013 ON THE FILES OF THE MUNSIFF'S COURT, ALUVA.

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P1(A) (2 IN NOS):TRUE COPIES OF THE COMMISSION REPORTS.

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P2: - TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN OS NO. 509/2013 ON THE FILES OF THE MUNSIFF'S COURT ALUVA.

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P3: - TRUE COPY OF IA NO. 1449/14 IN OS NO. 509/2013 ON THE FILES OF THE MUNSIFF'S COURT, ALUVA.

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P4: - TRUE COPY OF THE OBJECTION TO EXT. P3.

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P5: - TRUE COPY OF THE ORDER DT. 23.12.2015 IN IA NO.1449/14 IN OS NO. 509/13 ON THE FILES OF THE MUNSIFF'S COURT, ALUVA.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

K.ABRAHAM MATHEW J.

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O.P.(C) No.465 of 2016

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Dated this the 16^th day of February, 2016

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JUDGMENT

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First petitioner is the plaintiff in O.S.No.509 of 2013 of Munsiff Court, Aluva. Plaint A schedule property is in the ownership of first petitioner/first plaintiff. But it is looked after by his son, the second petitioner/second plaintiff. The respondent/defendant is the owner of the adjoining northern property. In the plaint it is alleged that in or about 1986 the first petitioner purchased from the respondent half a cent described in the plaint B schedule for Rs.90/- and since then the former has been in possession of B schedule property. The further allegation in the plaint is that the petitioners had constructed a wall along the northern boundary of the plaint B schedule property separating their property from the respondent's property, but the respondent destroyed a portion of it, which is the reason for filing the suit. In the plaint the petitioner prays for a perpetual injunction restraining the respondent from trespassing into plaint A and B schedule properties and for a mandatory injunction directing the respondent to restore the northern wall to its original condition. In the written statement the respondent denied the allegation that in or about 1986 he sold plaint B schedule property to the first petitioner as well as the other allegations against him. The petitioners filed an application to amend the plaint to incorporate a statement that as in the written statement the respondent denied

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O.P.(C) No.465 of 2016 2

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the sale of plaint B schedule property they are entitled to get a sale deed executed in respect of the plaint B schedule property. They also wanted to incorporate the relief of mandatory injunction directing the respondent to execute a sale deed in respect of plaint B schedule property. That has been dismissed by the trial court.

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Heard.

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Going by the averments in the plaint the sale became complete in or about 1986. The petitioners again cannot claim that they are entitled to get a sale deed executed by the respondent. That apart, the prayer which is sought to be incorporated is for a mandatory injunction to execute a sale deed. In fact, the relief is specific performance of an agreement of 1986, which is not pleaded in the plaint. Since the transaction is complete according to the petitioners, no cause of action for this relief can arise in their favour. Moreover, the amendment will alter the nature and character of the suit. survives in favour of the petitioners. In any view of the matter the petitioners' application could not have been allowed. The trial court rightly dismissed it.

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In the result, this Original petition is dismissed.

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Sd/- K.ABRAHAM MATHEW JUDGE

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cms

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/True copy/ P.S.to Judge

Paily v. Ouseppachan

Case brief

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Paily v. Ouseppachan

Case brief

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