1. The defendant in O.S.No.257 of 2008 before the learned Subordinate Judge, Tiruchengode, aggrieved over the order of the said Court, made in I.A.No.376 of 2010, is before this Court by filing the present Civil Revision Petition.

2. The respondents herein, being the plaintiffs in the said suit have filed the same for declaration of their title over the suit property and for Permanent Injunction restraining the petitioners herein from in anyway encroaching on the suit land. In the said suit, they have filed an application in I.A.No.376 of 2010, for amendment of the plaint, incorporating the prayer for mandatory injunction, directing the petitioners herein from removing the construction put up in the common lane. The said application was allowed by the Court below and the present revision is directed against the said order.

3. The learned counsel appearing for the petitioners contended that the amendment which has been sought for by the respondents was barred by limitation on the date, when the application for amendment was filed. Hence, according to the learned counsel appearing for the petitioners, the amendment should not have been allowed by the Court below.

4. On the other hand, the learned counsel appearing for the respondents contended that as per Section 22 of the Limitation Act, it is the continuing offense made by the respondents and hence the question of limitation will not arise at all. On facts also, he has contended that the question of limitation is a mixed question of facts and law, which can be agitated only at the time of the trial of the suit.

5. I have carefully considered the submissions made by the learned counsel appearing for the petitioners and the respondents.

6. The respondents herein have filed the suit against the petitioners on 26.04.2005. An Advocate Commissioner was appointed at the time of moving of the suit and he has filed his interim report on 28.04.2005. Later, the final report was filed by the Advocate Commissioner on 30.09.2005. Even, in the interim report as well the final report filed by the Advocate Commissioner, he has mentioned about the construction put up in the common lane. Thereafter, the petitioners herein filed their written statement on 30.09.2005, wherein they have pleaded that the construction was already made before the filing of the suit. While so, the present application for amendment came to be filed by the respondents on 09.07.2010.

7. The first question that arises for consideration before this Court is whether the time barred relief could be allowed to be incorporated by way of amendment under Order 6 Rule 17 CPC. The second question that arises for consideration is whether the act of the respondents, namely the construction put up in the lane is a continuing offense that has been committed by them, so as to warrant invoking of Section 22 of the Limitation Act.

8. While considering the first issue, as stated already, the suit has been filed on 26.04.2005. The Advocate Commissioner has filed his interim report on 28.04.2005 and filed his final report on 30.09.2005. In his report, the construction put up by the petitioners was set out by the Advocate Commissioner. Admittedly, an application was filed by the respondents on 09.07.2010 for amendment of the pleadings, incorporating the prayer for mandatory injunction. In the affidavit in support of the application, the respondents have stated that after filing of the suit, the petitioners herein have put up the said construction. It is not stated in the affidavit, when such construction was put up, even though it is stated that after filing of the suit, the said construction was put up. Hence, the relief of mandatory injunction cannot be entertained.

9. As per Article 113, in a suit for which no limitation was provided else where in the schedule, the period of limitation is three years. Admittedly, in the case on hand, as stated already, even after the Advocate Commissioner had pointed out that the construction had