Sankarapuram Village vs Lakshminarayana Naicker, Janakirama Naicker and Jayarama Naicker

G. Rajasuria, J.—Inveighing the order dated 13.9.2004 passed in I.A. No. 189 of 2003 in O.S. No. 796 of 1993 by the Addl.District

Munsif, Kancheepuram, this civil revision petition is focussed.

The gist and kernal, the pith and marrow of the relevant facts, which are absolutely necessary and germane for the disposal of this revision

petition, would run thus:

The revision petitioners, as plaintiffs, filed the suit O.S. No. 796 of 1993 before the District Munsif, Kancheepuram, seeking the following reliefs:

i) to declare that the order of assignment in respect of the suit property, in favour of the 1 to 3 defendants, is unlawful, illegal, null and void.

ii) to declare the title of the suit property in favour of the plaintiffs/villagers by way of adverse possession and enjoyment against the defendants 1 to

3.

iii) to grant consequential injunction against the defendants 1 to 3 restraining them, their men or agents from in any way interfering with the peaceful

possession and enjoyment of the suit property by the plaintiffs/villagers.

D1 to D3 entered appearance and filed collectively one written statement and D4 filed written statement separately; while so, the plaintiffs filed the

I.A. No. 189 of 2003 under Order 6 Rule 17 of C.P.C. to get the plaint amended for effecting certain changes in the averments and in the prayer

as well; after hearing both sides, the lower Court dismissed the I.A. Being disconcerted and aggrieved by the order of the lower Court, this

revision is focussed on various grounds by the plaintiffs, inter alia thus:

the order of the lower Court is against law and weight of evidence, as it had held erroneously as though the amendment sought, if allowed, would

change the very nature of the suit and the cause of action as well and that the new pleadings and the new prayers are antithetical to the earlier ones.

Accordingly, the plaintiffs prayed for setting aside the order of the lower Court and for allowing the I.A.

Heard both sides.

A plain poring over and perusal of the typed set of papers, including the order of the lower Court, would display and exemplify that earlier the

plaintiffs filed the suit with the prayer to get set aside the assignment made by the Government in favour of D1 to D3 and for declaring the title of

the plaintiffs over the suit property by adverse possession etc., and for consequential injunction. Perhaps understanding the sea change in the law;

the said I.A. was filed by the plaintiffs under Order 6 Rule 17 of C.P.C., so as to get some changes effected in the averments and also changes in

the prayer, for the purpose of getting the suit property declared as Government land, but the pond shall be continued to be used by the

plaintiffs/villagers exclusively. The lower Court felt that the change sought for in the prayer would tantamount to changing the cause of action and

changing the suit itself.

In my considered opinion such a view taken by the lower Court is untenable. The Court has to see the pith and marrow, the gist and kernal of

the suit. The plaintiffs/villagers approached the Court with the avowed intention to use the suit property for themselves and for that they initially

relied upon certain facts that they have been in possession and enjoyment of the same and that they virtually acquired prescriptive title over it by

adverse possession and such like, perhaps, after understanding the change in law that so easily the prescriptive title and adverse possession cannot

be proved and that Section 14-A of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 is to the effect that all ponds and

water bodies shall stand vested in the Government, irrespective of any pre-existing right in favour of any one. Now the prayer of the plaintiffs is to

get the suit property declared as the Government property, over which the plaintiffs/villagers are having exclusive right to use it. It is for the lower

Court to decide, after entertaining evidence on both sides during trial. It would be prematured to decide whether the plaintiffs would succeed in

their plea or not.

I am also fully aware of the fact that by virtue of the amended order 6 Rule 17 of C.P.C., in a casual manner amendments of the plaint should

not be allowed. But here what I could understand is that the amendment sought, if allowed, would prevent multiplicity of proceedings and the

Court could once and for all decide comprehensively the actual dispute between the parties. Put simply, the lower Court could have allowed the

application au fait with law. In this view of the matter, the order of the lower Court is set aside by allowing this civil revision petition and

consequently, the I.A.189 of 2003 shall stand allowed. I make it clear that the allowing of this I.A. would in no way connote or denote that the

contention of the plaintiffs have been upheld by this Court. Untrammelled and uninfluenced by any of the observations made by this Court in this

order, the lower Court shall proceed with the matter while adjudging the original suit. Consequently, connected miscellaneous petition is closed.