Madras High Court
L.Murugesan vs Chinna Mara Naicker on 30 April, 2021
CRP (PD) No.3253 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.04.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP (PD) No.3253 of 2018
and CMP.No.18497 of 2018
1.L.Murugesan
2.L.Shanmugam
3.Balasubramaniam ..Petitioners
Vs.
1.Chinna Mara Naicker
2.Ganesan
3.Bhagyalakshmi
4.Dhanalakshmi
5.Rukmani
6.M.Kalimuthu
7.Manickam
M.Rajan (Died)
8.Shyla Devi
9.S.Ranganathan
10.Baby
11.S.Chinnasamy
12.Rajeswari
13.Rathinam
14.M.Ravi
15.M.Radhakrishnan
16.Saroja
17.Malarvizhi
18.S.Gayathiri
19.R.Shobana
20.Rajammal
21.Minor R.S.Karthikeyan
Rep by his mother and guardian Shobana ..Respondents
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1/6
CRP (PD) No.3253 of 2018
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the fair and decreetal order dated 30.08.2018 made in
I.A.No.1317 of 2017 in O.S.No.337 of 2013 on the file of the IV Additional
District Munsif, Coimbatore.
For Petitioners : Mr.Ayyapparaja
For R1 to R7 : No appearance
For R8 to R12 : Mr.S.Mukund
ofr M/s.Sarvabhauman Associates
For R13 to R21 : No appearance
ORDER
This Civil Revision Petition is filed against the fair and decreetal
order dated 30.08.2018 made in I.A.No.1317 of 2017 in O.S.No.337 of 2013 on
the file of the IV Additional District Munsif, Coimbatore, thereby allowing the
application for amendment.
2. The petitioners are the defendants and the respondents are the
plaintiffs. The respondents filed a suit for declaration and permanent injunction
in respect of the suit property comprised in S.F.No.5/1 ad-measuring 1.20 acres
in patta No.339 situated at Madukarai Village, Coimbatore.
3. On receipt of the summons, the petitioners appeared through
their counsel and filed their written statement stating that the respondents have
intentionally suppressed the fact of sub-division of S.F.No.5/1 which was
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CRP (PD) No.3253 of 2018
divided as 5/1A, 5/1B and 5/1C. In fact, before filing the suit, the 9th
respondent herein filed a petition before the Revenue Divisional Officer,
Coimbatore for cancellation of patta stands in the name of the petitioners and to
issue patta in their favour and the same was dismissed by an order dated
15.10.2012. In the said order, the Revenue Divisional Officer categorically
stated that the land in S.F.5/1 is sub divided as S.F.No.5/1A and 5/1B.
Therefore, the respondents have knowledge about the sub division and even at
the time of filing the suit for declaration and describing the property as
S.F.No.5/1 ad-measuring 1.20 acres. Even after filing their written statement in
the year 2013, the respondents did not file any petition to amend the prayer
within the period of three years from the date of filing of the suit. He further
submitted that the amendment petition is not filed under bonafide reason and as
such, the amendment is not automatic. Therefore, it is liable to be dismissed.
In support of his contention, he relied upon a judgment reported in
2007 (6) MLJ 1703.
4. Per contra, the learned counsel for the respondents would
submit that admittedly, the suit property is comprised in S.F.No.5/1 ad-
measuring 1.20 acres. According to the respondents, the property comprised in
S.F.No.5/1 is ad-measuring 4.18 acres. While dividing the property in the
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CRP (PD) No.3253 of 2018
partition deed among the family members ad-measuring 2.98 acres only divided
and the remaining property ad-measuring 1.20 acres was un-divided and kept in
common among the parties. While being so, the petitioners are being
neighbours were tried to encroach the suit property. Therefore, they filed the
suit in respect of the suit property comprised in S.F.No.5/1 ad-measuring 1.20
acres. Even according to the petitioners, the property comprised in S.F.No.5/1
was sub-divided into 5/1A, 5/1B and 5/1C, as such, the amendment sought for
by the petitioners would not cause any prejudice to the petitioners and also
would not change the nature of the suit and the cause of action.
5. Heard Mr.Ayyapparaja, learned counsel for the petitioners and
S.Mukund, learned counsel appearing for the respondents 8 to 12.
6. The respondents filed a suit for declaration and injunction in
respect of the suit property comprised in S.F.No.5/1 ad-measuring 1.20 acres.
The respondents filed their written statement stated that the property comprised
in S.F.No.5/1 was already sub-divided as 5/1A, 5/1B and 5/1C. Therefore, the
respondents filed a petition to amend the suit schedule property as follows :
“The property is presently comprised in
S.F.Nos.5/1A and 5/1B of Madukkari Village,
Coimbatore District”.
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CRP (PD) No.3253 of 2018
7. The amendment sought for by the respondents is nothing but to
include the sub-division viz., the suit property comprised in S.F.No.5/1 after
sub-division situated in S.F.No.5/1A and 5/1B according to the plaintiff.
Therefore, the amendment sought for by the respondents would not change the
nature of the suit and also would not change the cause of action.
8. That apart, the title in respect of the suit schedule property will
be decided only at the time of trial not in the amendment petition. Therefore,
the Court below rightly allowed the petition for amendment and this Court
finds no illegality or infirmity in the order passed by the Court below.
Accordingly, the Civil Revision Petition is dismissed. However, the
petitioners are permitted to file their additional written statement and the Trial
Court is directed to dispose of the suit within a period of six months from the
date of receipt of a copy of this order. It is also made clear that all the issues
raised by the petitioners herein including the limitation will be considered by
the Trial Court during the trial. No costs. Consequently, connected
miscellaneous petition is closed.
30.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lpp
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CRP (PD) No.3253 of 2018
G.K.ILANTHIRAIYAN.J,
lpp
To
The IV Additional District Munsif,
Coimbatore
CRP (PD) No.3253 of 2018
and CMP.No.18497 of 2018
30.04.2021
https://www.mhc.tn.gov.in/judis/
