Kerala High Court
Rajendra Prasad vs Nadarajan on 8 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 8TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
OP(C).No.1628 OF 2020
AGAINST THE ORDER DATED 08.09.2020 IN IA 1/2020 IN OS 91/2016 OF
ADDITIONAL MUNSIFF'S COURT-II, THIRUVANANTHAPURAM
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PETITIONERS:
1 RAJENDRA PRASAD
AGED 68 YEARS
S/O.APPAVU ACHARI, RESIDING AT KUZHIYIL VEEDU, TC
29/1481, M.K.K. NAIR ROAD, PALKULANGARA, PETTAH
VILLAGE, PETTAH TALUK, THIRUVANANTHAPURAM.
2 SAJILA,
AGED 58 YEARS
D/O.APPAVU ACHARI, RESIDING AT KUZHIYIL VEEDU, TC
29/1481, M.K.K. NAIR ROAD, PALKULANGARA, PETTAH
VILLAGE, PETTAH TALUK, THIRUVANANTHAPURAM.
3 SHAJI,
AGED 45 YEARS
S/O.APPAVU ACHARI, RESIDING AT KUZHIYIL VEEDU, TC
29/1481, M.K.K. NAIR ROAD, PALKULANGARA, PETTAH
VILLAGE, PETTAH TALUK, THIRUVANANTHAPURAM.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.M.J.BENNY
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
RESPONDENTS:
1 NADARAJAN
AGED 78 YEARS
S/O.RAMANKUTTY ASARI, RESIDING AT SANTHINIKETHAN
VEEDU, TC 32/1272(1), KARIKKAKOM DESOM, KARIKKAKOM
P.O., KADAKAMPALLY VILLAGE, KADAKAMPALLY TALUK,
THIRUVANANTHAPURAM-695 021.
OP(C).No.1628 OF 2020 -2-
2 RADHAMMAL,
AGED 68 YEARS
D/O.KAMALAKSHI AMMAL, RESIDING AT PUTHUVAL PUTHEN
VEEDU, TC 79/1512, KARIKKAKOM DESOM, KARIKKAKOM
P.O., KADAKAMPALLY VILLAGE, KADAKAMPALLY TALUKM,
THIRUVANANTHAPURAM-695 021.
3 LALITHAMMAL,
AGED 66 YEARS
D/O.KAMALAKSHI AMMAL, RESIDING AT LAL NIVAS,
KADAKKAVOOR DESOM, KEEZHATTINGAL VILLAGE,
KEEZHATTINGAL P.O., CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM-695 306.
4 RAMANI AMMAL,
AGED 61 YEARS
D/O.KAMALAKSHI AMMAL, RESIDING AT BHAGAVATHY
THERUVU, PALAKKAD MUNICIPALITY, PMC 40/314,
PALAKKAD DESOM, PALAKKAD VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001.
5 LAILA BEEVI,
AGED 62 YEARS
W/O.LATE SAMBASIVAN, RESIDING AT TC 79/1557,
KAYYALATHU VILAKATHU VEEDU, KARIKKAKOM DESOM,
KARIKKAKOM P.O., KADAKAMPALLY VILLAGE, KADAKAMPALLY
TALUKM, THIRUVANANTHAPURAM-695 021.
6 DILEEPAN,
AGED 27 YEARS
S/O.LATE SAMBASIVAN, RESIDING AT TC 79/1557,
KAYYALATHU VILAKATHU VEEDU, KARIKKAKOM DESOM,
KARIKKAKOM P.O., KADAKAMPALLY VILLAGE, KADAKAMPALLY
TALUKM, THIRUVANANTHAPURAM-695 021.
7 DEEPAN,
AGED 25 YEARS
S/O.LATE SAMBASIVAN, RESIDING AT TC 79/1557,
KAYYALATHU VILAKATHU VEEDU, KARIKKAKOM DESOM,
KARIKKAKOM P.O., KADAKAMPALLY VILLAGE, KADAKAMPALLY
TALUKM, THIRUVANANTHAPURAM-695 021.
8 SAJIKUMAR,
S/O.DEVARAJAN, AGED ABOUT 40 YEARS, RESIDING AT SS
NIVAS, MELEVILA, KADAKKAVOOR DESOM, KEEZHATTINGAL
VILLAGE, KEEZHATTINGAL P.O., CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM-695 306.
OP(C).No.1628 OF 2020 -3-
9 SANTHOSH,
S/O.DEVARAJAN, AGED ABOUT 35 YEARS, RESIDING AT SS
NIVAS, MELEVILA, KADAKKAVOOR DESOM, KEEZHATTINGAL
VILLAGE, KEEZHATTINGAL P.O., CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM-695 306.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.1628 of 2020
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Dated this the 8th day of January, 2021
JUDGMENT
Order allowing amendment of the plaint is under
challenge in this original petition filed by
defendants 3 to 5.
2. The suit as instituted is one for partition
between the plaintiffs and the first defendant, and
for eviction of defendants 2 to 5. Pending the
suit, the first defendant-co-sharer expired. Since
the plaintiffs are the legal heirs of the first
defendant, the relief of partition has become
infructuous. Defendants 2 to 5 filed a written
statement challenging the title of the plaintiffs.
In the said circumstances, the plaintiffs sought
for amendment of the plaint to incorporate a prayer
for declaration of their title and recovery of
possession, and to delete the averments and relief
relating to the claim for partition.
3. The first defendant, co-sharer, against whom
the relief of partition was sought, having expired,
O. P. (C) No.1628 of 2020
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the rights devolved on the plaintiffs. As rightly
pointed out by the trial court, the relief of
partition, sought in the plaint, no more survives.
The title of the plaintiffs having been denied by
the defendants, it is only proper that they seek
for recovery of possession on the strength of their
title. Appropriate averments in the said regard are
necessary to be incorporated. The trial court was
right in allowing the amendment application.
The original petition lacks merit and is
accordingly dismissed.
SATHISH NINAN
JUDGE
kns/-
OP(C).No.1628 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.91/2016
DATED 13.01.2016 PENDING BEFORE THE
ADDITIONAL MUNSIFF COURT-II,
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED
MAY 2016 FILED BY THE PETITIONERS HEREIN IN
OS NO.91/2016 OF THE ADDITIONAL MUNSIFF
COURT-II, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE AMENDMENT PETITION IN IA
NO.1/2020 DATED 04.03.2020 FILED BY THE
RESPONDENTS IN IN OS NO.91/2016 OF THE
ADDITIONAL MUNSIFF COURT-II,
THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE COUNTER DATED 24.08.2020
FILED BY THE PETITIONERS IN IA NO.1/2020 IN
IN OS NO.91/2016 OF THE ADDITIONAL MUNSIFF
COURT-II, THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 08.09.2020 IN
IA NO.1/2020 IN IN OS NO.91/2016 OF THE
ADDITIONAL MUNSIFF COURT-II,
THIRUVANANTHAPURAM.
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