Madras High Court
L.Devaraj vs Selvam on 3 February, 2023
C.R.P.No.1870 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.No.1870 of 2019
and C.M.P.No.12303 of 2019
L.Devaraj .. Petitioner
Vs.
1. Selvam
2. Muniappan
3. Harikrishnan .. Respondents
Prayer:- Civil Revision Petition filed under Article 227 of Constitution
of India to set aside the fair and decreetal order dated 15.03.2019 made in
I.A.No.692 of 2018 in O.S.No.360 of 2013 on the file of the learned
Additional District Munsif (Full Additional Charge), Villupuram by
allowing this Civil Revision Petition.
For Petitioner : Mr.N.Manokaran
For R1 to R3 : Mr.E.Sathiyaraj
ORDER
This Civil Revision Petition has been filed as against the fair and
decreetal order dated 15.03.2019 made in I.A.No.692 of 2018 in
O.S.No.360 of 2013 on the file of the learned Additional District Munsif
(Full Additional Charge), Villupuram, thereby dismissing the petition
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
seeking amendment of plaint to include the prayer of recovery of
possession in respect of the suit property.
2. The petitioner is the plaintiff and the respondents are the
defendants. Originally, the petitioner filed a suit for declaration and
permanent injunction in respect of the suit schedule property. The case of
the petitioner is that the suit property and other properties originally
belong to one Lakshmana Gounder, who is none other than the father of
the petitioner herein. He had two other sons by name Murugayyan and
Deivasigamani. The respondents are the sons of the said Murugayyan.
After the death of the father of the petitioner, his properties were orally
divided between the petitioner and his other brothers. Accordingly, the
first item of the property was allotted in favour of the petitioner. After
sub division, he also obtained separate patta. The adangal was also issued
in his favour and he is continuously paying kist for the properties. Out of
the share allotted in favour of the petitioner, ad-measuring 2 acres, one
acre was sold out in favour of one Sowbagyammal by a registered sale
deed dated 03.05.1978. While being so, the respondents herein disturbed
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
the peaceful possession and enjoyment of the subject property. Hence,
the suit.
3. Resisting the same, the respondents filed their written statement
stating that after the partition between the father of the petitioner as well
as the father of the respondents, the suit property was exchanged by way
of an exchange deed for the reason, the properties which were allotted in
favour of the petitioner's father has no water irrigation. Therefore, the
property which was allotted in favour of the father of the respondents
herein was exchanged in front of the Panchayatars and an exchange deed
dated 21.12.1987 was also executed. Accordingly, the property which
was originally allotted in favour of the petitioner's father was exchanged
in favour of the respondents' father. After the demise of their father
Murugayyan on 03.03.2008, the respondents had partitioned the property
and they are in possession and enjoyment of their respective shares. In
fact, they also mortgaged the said property and borrowed loan from third
party. After the settlement of the entire loan they had redeemed their
respective properties. In fact, the petitioner herein also mortgaged the
property which was exchanged by his father with Indian Bank and
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
obtained loan. They were also issued patta and annexed all the
documents from the year 1952 in their written statement. The suit was
filed on 30.10.2013 and thereafter, the respondents filed their written
statement on 10.04.2014.
4. Even then, the petitioner did not come forward with any
petition to amend the plaint, seeking the prayer of recovery of
possession. Only after examination of P.W.1, the petitioner had come
forward with a petition seeking amendment of plaint to include the
alternative prayer of recovery of possession in respect of the suit
property.
5. A perusal of affidavit filed in support of the amendment
petition, the petitioner stated that the respondents have been contesting
the suit admitting his title to the suit properties, but contending that they
have been in possession of the same on exchange of their property to
him. However, he has been in physical possession and enjoyment of the
suit properties and patta was issued in his name and he is paying kist to
the Government. Therefore, according to the petitioner, he is in
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
possession and enjoyment of the suit property. Even then, he is seeking
amendment of plaint to include alternative prayer of recovery of
possession.
6. It is also seen that by the exchange deed dated 21.12.1987, the
suit property was allotted in favour of the respondents' father. Thereafter,
they had partitioned the property by partition deed dated 13.06.2005 and
they are in possession and enjoyment of their respective shares. In fact,
they were also issued patta and thereafter, they mortgaged the property
by registered mortgage and availed loan for their respective shares.
Thereafter, they redeemed the same after repayment of the entire loan
amount. In fact, the petitioner also mortgaged the property which was
already exchanged in favour of his father with the Indian Bank by the
registered mortgage deed. Therefore, if at all the petitioner denied the
contention made in written statement, the petitioner ought to have filed a
petition seeking amendment to include the prayer of recovery of
possession immediately after the written statement was filed. However,
the petitioner did not file any application to include alternative prayer of
recovery of possession. That apart, the petitioner claims the suit property
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
through the oral partition between the petitioner's father and his brother
i.e, the father of the respondents herein. Thereafter, by the exchange
deed, dated 21.12.1987, the property was exchanged between the father
of the petitioner and the father of the respondents herein. Therefore, the
petitioner cannot maintain the prayer of recovery of possession in respect
of the suit property.
7. The learned counsel for the petitioner relied upon the Judgment
of the Hon'ble Supreme Court of India in 2022 SCC OnLine SC 1128 in
the case of Life Insurance Corporation of India Vs. Sanjeev Builders
Private Limited and Another in which it was held that all amendments
ought to be allowed which are necessary for determining the real
question in controversy provided it does not cause injustice or prejudice
to the other side. This is mandatory, as is apparent from the use of the
word “shall”, in the latter part of Order VI Rule 17 of the CPC.
8. In the case on hand, as stated supra, the respondents had
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
resisted the suit by filing their written statement itself, they categorically
stated by the exchange deed dated 21.12.1987, the property which was
alloted by oral partition in favour of the petitioner's father has been
exchanged between them and the respondents are in possession of the
suit property and they have also issued patta. Therefore, the amendment
sought for by the petitioner would cause injustice and prejudice them.
Therefore, the judgment cited by the learned counsel for the petitioner is
not helpful to the case on hand.
9. In view of the above, this Court finds no infirmity or illegality in
the order passed by the Court below and this revision is liable to be
dismissed.
10. Accordingly, this Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous petition is closed. No costs.
03.02.2023
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
mn
https://www.mhc.tn.gov.in/judis
C.R.P.No.1870 of 2019
G.K.ILANTHIRAIYAN,J.
mn
To
The Additional District Munsif (Full Additional Charge), Villupuram.
C.R.P.No.1870 of 2019
and C.M.P.No.12303 of 2019
03.02.2023
https://www.mhc.tn.gov.in/judis
