ORAL ORDER

The defendants in O.S.No.20/2013 on the file of Senior Civil Judge, Sedam are before this Court challenging the correctness of an order dated 02.04.2019 by which an application filed by the plaintiff (I.A.No.IV) under Order VI Rule

17 of Code of Civil Procedure (CPC) was allowed.

2. The suit in O.S.No.20/2013 was filed for declaration of title and for perpetual injunction in respect of land bearing Sy.No.822 of Sedam Taluk measuring 27 acres 19 guntas. 3. The plaintiff now deceased, claimed that his father was the absolute owner of the suit property and was in possession of it until he died on 08.06.2000. The plaintiff, now deceased, alleged that defendant Nos.1 to 3 were interfering with his possession they had no manner of right, title or interest therein. He alleged that the defendants disclosed that they had purchased the suit property in terms of sale-deeds that were registered as document Nos.113/2000-2001, 114/2000-2001 and 115/2000-2001. The deceased plaintiff obtained copies of the documents and contended that he was not a party to the sale-deeds and therefore was not bound by them. He therefore sought for a declaration that sale deeds referred to above do not bind his interest and sought for perpetual injunction.

4. The suit was contested by defendant No.1 who contended that they have purchased the suit property from the father of plaintiff and that they were placed in possession of the suit property. He therefore claimed that the sale-deeds were binding upon the plaintiff also. He contended that he and others had filed a suit in O.S.No.64/2007 for perpetual injunction and that the said suit was decreed against the plaintiff and his son. Therefore, he contended that the present suit was not maintainable.

5. (i) Based on these contentions, the Trial Court framed issues and set down the case for trial. After issues were framed, the suit was set down for evidence. At that stage, the plaintiff filed an application for amendment of plaint to incorporate an additional relief of recovery of possession. In the affidavit accompanying the application, plaintiff claimed that after the decree of suit in O.S.No.64/2007, the defendants with the help of police dispossessed him in the 3^rd week of April 2012. Therefore, he contended that he was entitled to recover the possession of suit property.

(ii) The application was contested by the defendants who claimed that the possession of the property was always with defendants and therefore the defendants had raised a contention in their written statement that the suit without seeking the relief of possession was not maintainable. They contended that the suit filed by them in O.S.No.64/2007 was decreed which made it more than evident that they were in possession of the suit property. Therefore, they contended that the application filed by the plaintiff to amend the plaint at a belated stage of the proceedings, is not maintainable.

6. The Trial Court after considering the application as well as the objections filed to the application held that the plaintiff had categorically stated in the application that he was dispossessed from the suit property during the pendency of W.P.No.82020/2010 and therefore it was upon him to prove that he was dispossessed from the suit property. The trial Court held that since the trial in the suit had not begun and the plaintiff had sought for declaration of title, the relief of recovery of possession was necessary in view of the claim of plaintiff that he was dispossessed during the pendency of the suit. Consequently, it allowed the application in terms of the impugned order. Being aggrieved by the same, the defendants have filed this writ petition.

7. Learned counsel for defendants submitted that the plaintiff has not produced any material to justify that he was dispossessed from suit property in the third week of April 2012, during the pendency of W.P.No.82020/2010. He also contended that since suit was initially filed for declaration and perpetual in