An amendment of the plaint seeking a relief not connected with the original prayer at all cannot be allowed. A title to the property and a right of easement on it are conceptions totally distinct and contradictory to each other.

1. Heard the learned counsel for the petitioner and the learned counsel for respondent No. 1 who is the contesting respondent.

2. This revision petition is directed against an order dated 9.2.1995 in I.A. No. 572 of 1992 in O.S. No. 1231 of 1984 dismissing the application filed seeking amendment of the plaint.

3. On an earlier occasion the said I.A. No. 572 of 1992 was allowed by the trial court on 4.12.1992. The said order was challenged in C.R.P. No. 402 of 1992. This Court allowed the revision petition on 8.10.1993 and set aside the order passed by the trial court and remanded the case to the trial court for a fresh consideration and disposal in accordance with law. It is thereafter the impugned order is passed by the court below.

3-A. The plaintiffs originally filed the suit for declaration seeking declaration that the plaintiffs have easementary right to discharge the waste water and eaves-drops from their property into a portion belonging to the defendant marked as A-B-C-D in the plaint. The suit was filed in the year 1984. In the said suit a Commissioner was appointed. He made a report. According to the learned counsel for the petitioner, on the basis of the report of the Commissioner, the plaintiffs came to know that the property over which easementary right was claimed really belonged to the plaintiffs, and hence a necessity arose for the plaintiffs to seek an amendment of the prayer so as to seek declaration of title to the property, in respect of which declaration is sought as to easementary right.

4. The court below having heard the learned counsel for the parties, passed the impugned order observing that the plaintiffs having filed the suit in the year 1984 claiming adverse possession, thereafter on measuring the suit property with the help of Surveyor, have sought to amend the plaint claiming title. According to the court below the amendment sought for could not be granted having regard to the nature of the amendment sought for.

5. The learned counsel for the petitioner contended that even though the amendment was sought raising an inconsistent plea or prayer, it could be allowed as such amendment was sought having regard to the subsequent development, viz., in the light of the report of the Commissioner indicating that it is the plaintiffs who are the owners of the property in question. He urged that if the amendment as sought for is not allowed it would essentially lead to multiplicity of proceedings and such a course could be avoided.

6. The learned counsel for the first respondent argued in support and justification of the impugned order. He submitted that the amendment which runs contrary to the original pleading, and in other words an amendment to raise inconsistent plea, cannot be permitted.

7. I have considered the submissions made by the learned counsel for the parties.

8. In the translated copy of the impugned order, it is stated that the court below proceeded on the basis that the original claim of the plaintiffs was one on adverse possession. In my opinion, this observation of the court blow is not correct because the original prayer made in the plaint is one for easementary right.

9. Be that as it may, having regard to the application made for amendment and the counter filed by respondent No. 1, and looking to the nature of the amendment of the plaint sought for, it is clear that the amendment of the prayer now sought for is plainly inconsistent with the original prayer. The prayer for declaration made originally is one of easementary right by the plaintiffs, and the plaintiffs now want to amend the prayer in the plaint by seeking a declaration of title over the very property.

10. The learned counsel for the petitioner drew my attention to Order 6, Rule 7, C.P.C. and also placed reliance on two decisions in support of his submission viz., (i) Nair Service Society v. K.C. Alexander and others (A.I.R. 1968 S.C. 1165) and (ii) Akshaya Restaurant v. P. Anjanappa (A.I.R. 1995 S.C. 1498) to conte