ORDER: The revision petitioner is the plaintiff in O.S.No.47 of 1998 on the file of the District Munsif Court, Villupuram. The revision is filed against the dismissal of the amendment petition I.A.No.304 of 2000 in A.S.No.131 of 1999 on the file of the II Additional Sub Court, Villupuram, to amend the plaint for delivery of vacant possession of the plaint ‘B’ schedule property and stating that it was trespassed by the defendant after filing of the suit, as per order dated 15.2.2001.

2. In the affidavit filed in support of the said amendment petition, the plaintiff has stated that after filing of the suit, the respondent/defendant trespassed into a portion of his property on the South and therefore, recovery of possession is

also to be sought for, for which purpose, the plaintiff filed the amendment petition as stated in the petition.

3. The amendment petition was opposed in the counter that though the plaintiff was fully aware, even at the stage of trial that the defendant is in possession of ‘B’ schedule property, no step has been taken to amend the plaint at that stage. No petition was filed to amend the plaint seeking recovery of possession before evidence was let in or before the judgment was pronounced in the suit. After filing of the written statement, the plaintiff filed a petition seeking police help and the petition was dismissed, against which no appeal has been filed. Even in the said petition, the plaintiff has stated that the defendant has dug up the foundation for construction of the brick built house. The amendment now sought for will change the character of the suit. The suit ‘A’ schedule property has been sub divided as 480/12 and the ‘B’ schedule property has been sub divided as 480/13. The amendment petition is filed to delay the proceedings.

4. The trial Court on consideration of the materials available on record, ultimately dismissed the petition. The order is challenged in this revision petition.

5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

6. The learned counsel for the revision petitioner/plaintiff argued that the defendant has trespassed into the suit property after filing of the suit and as such, the plaint is to be amended seeking the relief of recovery of possession for which purpose, the amendment petition I.A.No.304 of 2000 was filed. The learned counsel for the revision petitioner also pointed out that such amendment can be ordered at any stage.

7. The learned counsel for the respondent/defendant argued reiterating the stand taken in the counter that despite the fact, written statement was filed clearly stating that the defendant is in possession of the ‘B’ schedule property and even though the plaintiff as P.W.1 admitted in his evidence that after filing of the suit, the defendant had trespassed into the suit ‘B’ schedule property, no petition was filed to amend the plaint suitably seeking the relief of possession at the trial stage and even before pronouncement of the judgment in the suit.

8. The plaintiff filed the suit O.S.No.47 of 1998 on 6.2.1998 for permanent injunction and stating that he is in possession of the suit property, viz., 0.03 cents in G.N.S.No.63/1A, Kedar village, Villupuram Taluk. It is further stated in the plaint that the suit property was assigned to the plaintiff as Inam on 16.3.1983. The defendant filed the written statement on 6.10.1998 setting out the clear case that by including the suit property which belongs to the defendant, patta was obtained by the plaintiff for 0.03 cents in 1983 and latter in the year 1984 patta was granted in respect of 0.01 cent North of the temple to the defendant. The plaintiff also constructed house in 0.03 cents North excluding the land to which the patta was granted in favour of the defendant and as such it is only the defendant, who is in possession of the suit property.

9. On perusal of records, it appears, I.A.No.2230 of 1998 was filed on 27.8.1998 to direct the Sub Inspector of Police

Click Here to Read the rest of this document