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Mangammal Vs. Rengappa Naicker and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad137
AppellantMangammal
RespondentRengappa Naicker and ors.
Cases ReferredIn Abdul Kader v. Md. Esuf Rowther
Excerpt:
- - but after {paying my best attention to the matter land considering anything which might the said in support of the order, i am of opinion that the amendment was one which under the circumstances of the case should have been allowed. in that case it might well have been urged that 'adverse possession' is a very different thing, or rather requires a very different degree of proof :when it is as between divided and when it is as between undivided members of a family. after giving my best attention to the matter, i consider the amendment is one which should have been allowed......in possession and enjoyment of the same. the defendants admitted the partition but denied that the suit lands were ever family property. before, the suit came on for trial the plaintiff asked leave to amend her plaint by further basing her title on adverse possession against the defendants for 12 years, and asking for a declaration that the suit properties belong to the plaintiff and are in her possession and enjoyment. the petition was opposed and was refused. against this order the present petition is filed.2. the defendants are unfortunately not represented before me. i regret this because i think that something might have been urged in support of the lower court's order, which at first sight i was (inclined to think reasonable. but after {paying my best attention to the matter land.....
Judgment:

Walsh, J.

1. Plaintiff filed the suit for an injunction against the defendants from trespassing on her land. Defendant 1 is the brother of plaintiff's deceased husband and the other defendents are sons of defendant 1. Plaintiff's case was that her husband was divided from his brother, defendant 1, about 35 years ago, that the land in question fell to his share and he had been enjoying it, and after his death she had been in possession and enjoyment of the same. The defendants admitted the partition but denied that the suit lands were ever family property. Before, the suit came on for trial the plaintiff asked leave to amend her plaint by further basing her title on adverse possession against the defendants for 12 years, and asking for a declaration that the suit properties belong to the plaintiff and are in her possession and enjoyment. The petition was opposed and was refused. Against this order the present petition is filed.

2. The defendants are unfortunately not represented before me. I regret this because I think that something might have been urged in support of the lower Court's order, which at first sight I was (inclined to think reasonable. But after {paying my best attention to the matter land considering anything which might the said in support of the order, I am of opinion that the amendment was one which under the circumstances of the case should have been allowed. If the defence had been a denial of the partition the matter might have been other wise. In that case it might well have been urged that 'adverse possession' is a very different thing, or rather requires a very different degree of proof : when it is as between divided and when it is as between undivided members of a family. In an undivided family nothing short of proof of 'ouster' will establish adverse possession by one member against another. That the nature of the defence can be looked into in the matter of allowing an amendment of the plaint, is seen from Saral Chand Mitter v. Sreemuthy Mohun Bibi (1898) 25 Cal. 371. The following cases have also been quoted before me in support of the petition. Ismail Bibi Ammal v. Moideen Abdul Kader 1929 Mad. 273, Somasundara Bhattar v. Muthu thevar 1925 Mad. 188 and Abdul Kader v. Md. Esuf Rowther 1926 Mad. 909. The first is a decision by myself. I pointed out there that Order 6, Rule 17, is much wider than the corresponding Section 53 of the previous Code. I also made a remark which I consider applies to this case equally:

There is nothing in the proposed amendment of the plaint which really adds anything to the rights which plaintiff has stated in the plaint.

and I held that the plaintiff should not be driven to a new suit. In the present case the plaintiff says that her husband got the land many years ago in partition and had been in undisturbed enjoyment afterwards, an enjoyment in which she succeeded him. The amendment puts forward the same fact of undisturbed enjoyment for more than 12 years adversely to the defendants, in view of their defence that the land was not family property at all. In Somasundara Bhattar v. Muthu Thevar 1925 Mad. 188, Jackson, J. allowed a plaintiff, who had stated in his plaint that having just attained majority his youth was imposed on to get him to execute a sale-deed, to alter it by saying that he was actually minor at the time of the execution. The learned Judge remarked, that there is no objection to amendments which justly develop the original cause of action so long as they do not vary it, and he held that there was little variation between the two statements. He also pointed out that if the amendment was refused there was nothing to prevent the plaintiff from getting leave to withdraw his suit and bringing a fresh one on the plea of minority so that defendants were not much affected. In Abdul Kader v. Md. Esuf Rowther 1926 Mad. 909, a plaintiff whose suit as framed for exclusive ownership was barred by res judicata, was allowed to amend it into a suit for partition of the property.

3. In the present case, I am unable to see how defendants will be prejudiced by the proposed amendment, and the fact that they have not appeared to oppose this revision petition perhaps indicates that they have no serious objection to its being allowed. After giving my best attention to the matter, I consider the amendment is one which should have been allowed. This revision petition is therefore allowed with costs in this Court. Costs in lower Court to abide the result of the suit.


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