Muthiah v. Sivakumari

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.06.2017 (Reserved on 15.06.2017) CORAM :

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN CRP(PD)(MD)No.1125 of 2017 and CMP(MD)No.5142 of 2017 Muthiah ... Petitioner/Petitioner/Plaintiff vs.

1)Sivakumari 2)Nagarajan ... Respondents/Respondents/Defendants Petition filed under Article 227 of the Constitution of India, to call for the records relating to the fair and decreetal order passed by the learned District Munsif, Nilakottai, dated 28.03.2017 in I.A.No.853 of 2016 in O.S.No.46 of 2014 and set aside the same and allow the said application.

For Petitioner : Mr.N.Dilip Kumar

ORDER

The revision petitioner is the plaintiff in the suit filed for permanent injunction in respect of suit schedule well and land appurtenant to it.

2.According to the plaintiff, the suit property is his ancestral property. In the year 1947 while he was minor, partition was effected between his grand father Ponnappa Nadar, his sons Rangasamy Nadar and Valliappa Nadar. In the said partition, 'A' schedule property to an extent of 2 acres 15 cents in S.No. 420 was jointly allotted to him and his junior paternal uncle Valliappa Nadar. Later, in the year 1967, oral partition between him and his junior paternal uncle Valliappa Nadar was effected. He was allotted Southern portion and Valliappa Nadar was allotted Northern portion of the land. The well, channel and the land appurtenant to the well to an extent of 5 cents were kept in common for joint use and enjoyment. After alienating portion of land allotted to him, he is using the suit property to store his agricultural tools and produce.

While so, the defendants who are the daughter and son-in-law of Valliappa Nadar threatened him that he will be forcible evicted. 3.In the written statement, the defendants have admitted the oral partition of the year 1967.

Nadar, the Northern portion where the well is located in 11⁄2 cents was allotted. After equally sharing the 2 acres 15 cents, the plaintiff had stopped cultivating his share but sold away the land by plotting it out. In those sale deeds, he has mentioned that he was allotted 1 acre and 71⁄2 cents through oral partition and sold away nearly 1 acres 111⁄2 cents which is 4 cents over and above the extent allotted to him under the oral partition. When this fact came to the notice of the defendants, they questioned the plaintiff's action and requested him to settle the issue amicably.

Instead of resorting to amicable settlement with his buyers in respect of land sold in excess to his entitlement, the plaintiff has filed the suit for bare injunction with frivolous claim of common enjoyment of well, channel and 5 cents of land appurtenant to the well. It is also alleged in the written statement that taking advantage of the exparte interim injunction, the plaintiff has encroached upon 11⁄2 cents of defendants land and had put up structure. 4.The Trial Court based on the pleadings has framed issues and had taken up the suit for examination of witnesses. The plaintiff has failed to commence the trial and allowed the suit to be dismissed for default. Later, on costs the suit has been restored on file at the instance of the plaintiff.

Thereafter, the application to amend the prayer to include additional relief of declaration to declare the plaintiff is entitled for 1/2 share in the suit property is filed.

5.The Trial Court after considering the pleadings and the relief sought in the petition to amend the plaint has held that having sought for permanent injunction claiming title over the 1/2 share in the suit property based on oral partition, amending the prayer to add declaration of 1/2 share in the suit property will change the character of the suit.

6.Aggrieved by the dismissal order, the revision petition is filed on the ground that the dispute is in respect of well situated in survey No.420 as mentioned in the plaint schedule. In the written statement, the defendants have denied the right of the plaintiff over the well and the plea of plaintiffs namely, common enjoyment. Therefore, the amendment to include the prayer for declaration is sought to avoid multiplicity of proceedings. 7.The above submission of the revision petitioner is devoid of merit and unworthy for considering for the following reasons:- The plaint averment is that 5 cents of land in 2.15 acres were held in common when the oral partition effected in the year 1967. In the said 5 cents of land, a well and channel is located which is used for drawing water for irrigation and to store agricultural tools and produce.

The said right is now disturbed by the defendants. These averment is denied by the defendants in their written statement. The case of the defendants is that the well falls exclusively on the Northern portion allotted to Valliappa Nadar. The plaintiff had stopped cultivating his land since 25 years.

plotted out his share of property and had sold it to various persons. In response to the averment in the written statement, the plaintiff seeks amendment to include the declaratory prayer. 8.Any relief without pleadings or cause of action is unsustainable. Through the amendment, virtually the plaintiff seeks partition of the plaint schedule property which according to him left undivided in the oral partition. The said relief should have been sought at the inception of insituting the suit or should have obtained leave of the court while filing the present suit for injunction stating out the reason why he is not filing the suit for the whole claim which he is entitled to make in respect of the cause of action. Certainly the amendment sought to the plaint by adding additional relief after the filing of written statement besides altering the nature of the suit pending will amount to circumventing the statutory bar under Order II Rule 2 of CPC. Therefore this court finds no error in the order impugned.

In the result, this Civil Revision Petition is dismissed. No order as to costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(Writs) /True Copy/ Sub Assistant Registrar To The District Munsif, Nilakottai.

+1cc to M/s. N.DILIP KUMAR Advocate in SR. NO.61376 NBI JS/SKN.RSK/SAR.1/30.06.2017/3P-3C order made in CRP(PD)(MD)No.1125 of 2017 20.06.2017