Question of limitation ought not to be decided while allowing amendment.

Plaintiff in O.S.No.629 of 1990 on the file of District Munsif, Madurai aggrieved against the Order in I.A.No.667 of 1995 in dismissing his petition for amendment, has filed the present revision before this Court.

.2. The petitioner herein/plaintiff has filed the said suit, viz., O.S.No.629 of 1990 against the first respondent herein (first defendant) to declare the suit property as common lane of the petitioner and consequently grant a decree for a permanent injunction restraining him from putting latrine, septic tank or any other construction in the suit property. It is further seen that originally the trial Court decreed the suit and at the instance of the first defendant, in the appeal the suit was remanded to the trial Court once again to implead the second defendant (2nd respondent herein) as a necessary party. Now the second defendant has already been impleaded and filed a written statement. It is further seen from the affida-vit.filed in support of the said petition that suit property is a common lane and there was no construction therein. The said suit property has been used by the plaintiff and the Ist defendant only as a passage and there was no construction or any structure. It is further averred that the 1st respondent during the month of January, 1991 in the absence of the plaintiff, has dug out in the suit property and has put up a septic tank, latrine and also flush out basin. As already stated, the plaintiff has originally filed the suit for declaration and consequently relief of injunction. Though the defendant has not proceeded with further construction, he has not removed the septic tank, latrine and flush out basin put up by him. In those circumstance, the petitioner seeks the relief of mandatory injunction directing the first respondent to remove the septic tank, latrine, and flush out basin put up by him in the suit property. The first defendant/first respondent herein has filed a counter-affidavit disputing the various averments made by the petitioner. He also raised an objection that the present claim is barred by limitation.

3. The court below by Order dated 7. 1996, after considering the case of all the parties, dismissed I.A.No.667 of 1995 as barred by limitation. Aggrieved by the said Order, the petitioner/Plaintiff has filed the present revision.

4. I have heard Mr.S.Kadarkarai, learned counsel appearing for the petitioner and Mr.S.Subbiah for the respondent.

.5. In this case, originally the plaintiff has filed a suit for declaration declaring the suit property shown as “AGHEA” in the plaint plan as common lane, consequently granting a decree for permanent injunction restraining the defendant from putting up latrine or any obstruction in the suit property. In view of the fact that in January, 1991, according to the plaintiff, the defendant has put up a septic tank, latrine and also flush out basin in the suit property, without a relief of mandatory injunction directing the first defendant to remove the said obstructions put up by him, it is not possible to use the common lane even if he ultimately succeeds in the decree for declaration and injunction. The learned counsel appearing for the petitioner has also relied on Seva Nilayatn represented by its Secretary, T.V.Thailammal Coimbatore v. Narayanaswami Naidu, (1993)1 M.L.J. 17 (N.R.C.) and Bank of India v. Dr.Sainathan, (1995)2 L. W. 25 in support of his argument.

6. On the other hand, Mr.S.Subbiah, learned counsel for the respondents reiterating the same defence, namely, if the amendment sought for is allowed, the defence of limitation would be lost to the defendant has relied on The Correspondent Amervlal Advert Mission School v. Jeevanarlam, (1989)2 L. W. 249.No doubt, in the decision referred to by Mr.S.Subbiah, the Division Bench of this Court has held that the plea of limitation raised by the defendant cannot be ignored. The facts in the Division Bench decision is that the plaintiff sought for declaration that the order of de