Kerala High Court
Suresh vs Sumangala on 4 June, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
OP(C) NO. 936 OF 2022
OS NO.829 OF 2019 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA
PETITIONER/RESPONDENT/DEFENDANT:
SURESH
AGED 61 YEARS
S/O.MUNDAKKAL SUBRAMANIAN, MUNDAKKAL HOUSE,
KOLATHUR DESOM, NELLAYI VILLAGE AND POST,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.,
PIN - 680305 (AGE OF THE PETITIONER IS MISTAKENLY
SHOWN IN THE ORDER IMPUGNED AS 51 INSTEAD OF HIS
CORRECT AGE 61 AS SHOWN ABOVE)
BY ADV R.SREEHARI
RESPONDENT/PETITIONER/PLAINTIFF:
SUMANGALA
AGED 63 YEARS
W/O.KANADIVEETTIL SIVANANDAN, KIZHAKKUMURI DESOM,
PERINGOTTUKARA VILLAGE AND POST,
THRISSUR DISTRICT., PIN - 680565
BY ADVS.
ANIL PRASAD
SABU P.JOSEPH(K/1406/1998)
C.N.SREEKUMAR(K/716/1996)
MANJU PAUL(K/362/1998)
LIJO VARGHESE(K/338/2021)
BEYON T. VARGHESE(K/2609/2021)
ARYA K.K.(K/1275/2022)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 936 OF 2022
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JUDGMENT
Exhibit-P15 order allowing an application for amendment of the plaint under Order 6 Rule 17 of Code of Civil Procedure (for short, the 'CPC') is under challenge in this original petition.
2. The petitioner is the defendant and the respondent is the plaintiff in O.S.No.829 of 2019 on the files of the Principal Munsiff Court, Irinjalakuda (for short, 'the trial court').
3. The suit is one for partition of plaint A, B and C schedule properties into two equal shares, and to allot one such share to the plaintiff and the remaining one share to the defendant, who is the brother of the plaintiff. The case of the plaintiff is that the plaint schedule property belonged to the father of the plaintiff and defendant and on the death of their parents, it devolved upon her and the defendant. In the written statement filed by the defendant, he contended that a registered partition deed No.4359/1998 dated 26.09.1998 SRO Nellayi has been executed between the plaintiff, defendant and their parents OP(C) NO. 936 OF 2022
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in respect of the plaint schedule properties and thereafter, the property allotted to the parents as per the said partition deed were assigned by parents in favour of the defendant as per the registered deed No.3692/2000 and 2694/2011 of SRO Nellayi. On the basis of the said contention raised in the written statement, the plaintiff filed I.A.No.1 of 2020 to amend the plaint, incorporating a prayer to cancel the three documents mentioned above and also to incorporate pleadings regarding those documents. The learned Munsiff allowed the amendment application, as per Ext.P15 order. Challenging the said order, the defendant has approached this Court.
4. Heard both sides.
5. As stated already, the suit is one for partition of plaint A, B and C schedule properties. The plaintiff and defendant are sister and brother, and the property sought to be partitioned admittedly belongs to their father. The case of the plaintiff is that on the death of their father and mother subsequently, the plaint OP(C) NO. 936 OF 2022
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schedule property devolved upon her and defendant equally. On the other hand, the defendant contended in his written statement that the properties were already partitioned, and the items of property allotted to the parents as per the said partition deed were assigned by them to him. The amendment application has been necessitated to incorporate the plea that those documents were procured by the defendant by exercising fraud and also to set aside the same. Since the defendant has set up title over the plaint schedule property by relying on three documents, which is disputed by the plaintiff, the amendment sought for is necessary for proper adjudication of the dispute between the parties. The amendment sought for will not alter or change the character of the suit. Hence, the trial court was justified in allowing the amendment application. I find no reason to interfere with the impugned order. Accordingly, the original petition is dismissed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE AS OP(C) NO. 936 OF 2022
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APPENDIX OF OP(C) 936/2022 PETITIONER EXHIBITS Exhibit P1 PHOTO COPY OF THE PLAINT FILED IN O.S.NO. 829/2019 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA BY THE RESPONDENT Exhibit P2 PHOTO COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENT HEREIN IN I.A.NO.3401/2019 IN O.S.NO.829/2019 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUD Exhibit P3 PHOTO COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN I.A.NO. 3401/2019 IN O.S.NO.829/2019 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA Exhibit P4 PHOTO COPY OF THE ORDER DATED 26/08/2019 PASSED IN I.A.NO. 3401/2019 IN O.S.NO.829/2019 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA Exhibit P5 PHOTO COPY OF THE PARTITION DEED NO.4359/1998 OF SRO NELLAYI DATED 26/09/1998 Exhibit P6 PHOTO COPY OF THE REGISTERED SALE DEED NO.3692/2000 OF SRO NELLAYI DATED 28/06/2020 Exhibit P7 PHOTO COPY OF THE SALE DEED NO.
2694/2011 OF SRO NELLAYI DATED
05/07/2011
Exhibit P8 PHOTO COPY OF THE LAND TAX RECEIPT DATED
03/07/2000 ISSUED FROM THE VILLAGE
OFFICE, NELLAYI, MUKUNDAPURAM TALUK IN FAVOUR OF THE PETITIONER OP(C) NO. 936 OF 2022
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Exhibit P9 PHOTO COPY OF THE LAND TAX RECEIPT DATED 29/05/2019 ISSUED FROM THE VILLAGE OFFICE, NELLAYI, MUKUNDAPURAM TALUK IN FAVOUR OF THE PETITIONER Exhibit P10 PHOTO COPY OF THE LAND TAX RECEIPT DATED 16/05/2019 ISSUED FROM THE VILLAGE OFFICE, NELLAYI, MUKUNDAPURAM TALUK IN FAVOUR OF THE PETITIONER Exhibit P11 PHOTO COPY OF THE POSSESSION CERTIFICATE DATED 04/06/2019 ISSUED FROM THE VILLAGE OFFICE, NELLAYI, MUKUNDAPURAM TALUK IN FAVOUR OF THE PETITIONER Exhibit P12 PHOTO COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER /DEFENDANT IN O.S.NO.829/2019 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA DATED 06/11/2019 Exhibit P13 PHOTO COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENT /PLAINTIFF IN I.A.NO.1 OF 2020 IN O.S.NO.829/2019 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA Exhibit P14 PHOTO COPY OF THE OBJECTION FILED BY THE PETITIONER /DEFENDANT IN IN I.A.NO.1 OF 2020 IN O.S.NO.829/2019 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA Exhibit P15 CERTIFIED COPY OF THE ORDER PASSED IN I.A.NO.1 OF 2020 IN O.S.NO.829 /2019 OF PRINCIPAL MUSNIFF COURT, IRINJALAKUDA DATED 07/04/2022