JUDGMENT

Orders allowing amendment of the plaint and dismissing the application for issuance of a survey commission, are under challenge in this original petition, by the defendants in the suit.

2. The suit as originally filed was for a prohibitory injunction against trespass into the plaint 'A' schedule property belonging to the plaintiff, for declaration of prescriptive easment right of way over the plaint 'C' schedule and for a prohibitory injunction not to interfere with the user of the plaint 'C' schedule way.

3. The plaintiff alleges that, pending the suit, the defendant who is the owner of the 'B' schedule property which lies adjacent on the northern side of 'A' schedule, trespassed into the 'B' schedule and reduced a portion thereof into his possession. Thereupon the plaintiff filed IA 4313/2012 seeking amendment of the plaint. By the :- 2 :-

amendment, the plaintiff sought to incorporate a relief for declaration of his title over the plaint 'A' schedule, for recovery of possession of the trespassed portion which is sought to be incorporated as 'D' schedule to the plaint, for a mandatory injunction to demolish the compound wall and the building portion alleged to have been constructed trespassing into the 'A' schedule property, and also for the relief of fixation of boundary between the plaint 'A' and 'B' schedule properties. As per Ext.P10 order the trial court allowed the application.

4. Noticeably the application for amendment was necessitated in view of the alleged subsequent events that occurred pending the suit. There is no change in the nature and character of the suit. The amendment sought for is necessary for proper and final determination of the rights involved and to avoid multiplicity of litigations. The trial court was right in having allowed the application for amendment. I am sure that, on the amendment being carried out, the trial court will afford :- 3 :-

opportunity to the defendant to file additional written statement to the amended plaint.

5. The defendant filed an application as IA

2627/2012 seeking the issuance of a survey commission, essentially to measure out the property of the defendants. According to the defendant, the said application was necessitated since, while preparing the Commissioner's Report dated 12.06.2012 the property of the defendant was not measured. The said application was dismissed by the trial court for the reason that already a survey plan on measuring out the plaint schedule property is available.

6. I do notice that while preparing the report dated 12.06.2012 the property of the defendant was not measured. The defendant has filed Ext.P7 objections to the Commissioner's Report dated 12.06.2012. The objections are pending consideration by the court. I think it appropriate that the trial court reconsiders the application, IA 2627/2012 in the light of the reliefs claimed by the plaintiff, the objections filed by the :- 4 :-

defendant to the Commissioner's Report dated 12.06.2012 and also the matters sought for in the present application. The order in IA 2627/2012 dated 12.11.12 is to be set aside.

In the result, this original petition is allowed in part. The challenge against Ext.P10 order allowing amendment fails and the order in IA 4313/2012 is affirmed. The order in IA 2627/2012 dated 12.11.2012 (commission application) is set aside. The trial court shall reconsider the application and pass fresh orders in the light of the observations made above. I am sure that the trial court will take into consideration the fact that the suit is of the year 2009 and expedite the proceedings.

Sd/-

SATHISH NINAN JUDGE kns/-

//True Copy// P.S. to Judge OP(C).No.1053 OF 2013(O)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 EXHIBIT P1: TRUE COPY OF THE PLAINT IN O.S.NO.365 OF 2009 AND WRITTEN STATEMENT SUBMITTED BY THE 1ST AND 2ND DEFENDANTS.

EXHIBIT P2 EXHIBIT P2: TRUE COPY OF THE PLAINT IN O.S.NO.365 OF 2009 AND WRITTEN STATEMENT SUBMITTED BY THE IST AND 2ND DEFENDANTS.

EXHIBIT P3 EXHIBIT P3: TRUE COPY OF TH