The right to seek amendment of the plaint to obtain a declaration of ownership and partition may be justified even in the face of a claim of adverse possession, if the defense does not challenge the applicant's right of ownership.

JUDGEMENT - Dr. E.S. DA SILVA, J.:---Rule, by consent, taken up for final hearing. This revision is directed against the order of the learned Civil Judge, Senior Division, Mapusa, dated 20th February, 1993 in Civil Miscellaneous Application No. 8/93/A in Special Civil Suit No. 119/1982/A whereby the learned Civil Judge has dismissed an application for amendment of the plaint. The case of the applicants is that they had filed against the respondents a suit for partition on the ground that they are in possession of half share. The respondents 1 and 2 admitted their ownership but raised a plea of adverse possession and a cloud was cast on there title because their names did not figure in the record of rights. Therefore the applicants sought to amend the plaint in order to incorporate therein a prayer seeking a declaration that they are the owners of half share of the property and that they are in joint possession of the same seeking therefore for a decree of partition and separation of shares. The respondents opposed the amendment claiming that the same was not available in view of the decision of this High Court in the case of (Cruz Fernandes and another v. Smt. Gregorina Estefania Sofia Fernandes and others)1, III-1992(1) Current Civil Cases 569. Besides the said amendment was not necessary to decide the dispute in controversy. It was further stated by the respondents that if the Court allowed the amendment the parties would be required to lead additional evidence.

2. I have heard learned Counsel and in my view the reason adopted by the learned Judge does not appear to be justified. Indeed the judgment relied by the learned Judge to which I was a party has held that no suit for physical partition of a common and undivided property lies unless previously the rights of the parties have been established and determined either judicially or by a competent public deed under the provisions of Portuguese Civil Code. In the instant case it seems that the applicants have applied for division of undivided property claiming to be the co-owners in possession of half of that property. The learned Judge acknowledged that respondents admitted this co-ownership but contended that the entire property was acquired by them by adverse possession and that their names do not figure in the record of rights. Being so it was open for the applicants to seek a declaration with regard to their title and ownership in respect of half of the suit property and for that purpose an amendment was required. It is thus seen that here is not a case in which the respondents challenged the fact that the applicants are not in a position to claim any right of ownership in respect of the property but their defence is that their right if any has to be deemed as forfeited because the respondents had secured the possession and ownership of the property by adverse possession. Be that as it may the fact remains that the respondents have to establish this right of theirs and being so the applicants are entitled to amend and obtain such a declaration. Needless to say that only if they succeed in getting such declaration that they are the owners of half of the property that the prayer for partition would lie and the Judge will have therefore to pass a preliminary decree in this regard followed by an act of actual partition by a Commissioner to be appointed. In my view the judgment cited by the respondents and relied by the learned Judge does not come into the way of the present amendment to be granted which in the facts and circumstances of the case appears to be justified and is to be carried on by the applicants in order to get their right of ownership with regard to half of the share of the suit property which is contested by the respondents adjudicated.

3. In the result the petition is to succeed. The order of the learned Civil Judge is hereby quashed and set aside. The learned trial Judge is directed to allow the amendment and proceed with the suit as per the law and observat

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