( 1 ) THE petitioner herein is the plaintiff in OS No. 3 of 1991 on the file of Addl. Junior Civil Judge, Punganur. The petitioner filed a suit for declaration of his easement of necessity on he road which is marked by alphabet cd to gh of the plaint plan.

( 2 ) DURING the pendency of the suit, the petitioner/plaintiff got the Commissioner appointed for noting down the physical features of the road in existence. The advocate-Commissionerhad filed his report along with a rough sketch. Thereafter it appears that at the instance of the defendants, the Commissioner was asked to visit the suit schedule site, once again, he filed another report showing the location of the road on the second occasion. It was also observed by the Advocate-Commissioner that between the point st to gh road is existing rest of the portions were merged into their cultivable land meaning thereby that some road was encroached upon. This report was filed in the year 1991. Now at the stage of the trial, the petitioner herein filed IA No. 325 of 1997 seeking amendment of the plaint. The said application was rejected. Hence, the petitioner filed this revision petition.

( 3 ) HEARD the learned Counsel for the petitioner and the learned Counsel for the respondents. Sri S. V. Bhatt, learned Counsel for the petitioner submitted at the Bar that the learned Judge wrongly refused the amendment application presuming that the claim of the plaintiff petitioner herein is barred by limitation. The learned Counsel for the petitioner invited my attention to the section 22 of the Limitation Act which speaks as under:"section 22. Continuing Breaches and torts :-In the case of a continuing breach of contract in the case of a continuing tort, a fresh period of limitation begins to run at every moment or the time during which the breach or the tort, as the case may be continues. "

( 4 ) THEREFORE, it was submitted that it was a specific case of the plaintiff in the amendment application that the defendants have extended their fields so as to make encroachment over the cart track and thereby narrowing the cart track as shown in the map as submitted by the advocate-Commissioner.

( 5 ) WHILE rebutting the aforesaid argument, Sri R. Radhakrishna Reddy, learned Counsel for the respondents, submitted that the claim of the plaintiff is barred by limitation and such an application for amendment was rightly dismissed by the learned Judge. Relying upon the ruling in shaik Pedda Adam and others v. Shik Adam and others, 1995 (3) ALT 581 and also in nss Sarma v. P. Venkateswar Rao, 1997 (1) alt 147. With reference to the above rulings, it was emphatically submitted by the learned Counsel for the respondents that if the relief claimed is barred by limitation. The amendment should not be allowed and it was rightly rejected by the trial Court. The learned Counsel for the respondents also relied upon the ruling in radhika Devi v. Bajrangi Singh, AIR 1996 sc 2358, wherein it was held by their lordships is as follows:"we find no force in the contention of the appellant. No doubt, the amendment of the plaint is normally granted and only in exceptional cases where the accrued rights are taken away by amendment of the pleading, the Court refuse the amendment. This Court in laxidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarvala, (1964) 2 scr 567 at 582, held thus: "it is, no doubt, true that, save in exceptional cases, leave to amend under order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations added or fresh reliefs sought by way of amendment. Where, for instance, as amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such