J U D G M E N T

This is an original petition filed under Article 227 of the Constitution of India by the petitioner, who is the plaintiff in O.S.No.324 of 2008 on the file of the Munsiff's Court, Ottapalam, assailing order in I.A.No.1229 of 2016 dated

21.02.2019.

2. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent.

3. It is submitted by the learned counsel for the petitioner that initially, the suit was tried and disposed of holding that the joint ownership claimed by the plaintiff over the plaint schedule property, who sought partition of the same was not established. Against which, appeal preferred and the appellate court remanded the matter for fresh consideration permitting both parties to file documents and to adduce further evidence. He submitted further that the petitioner raised contention right from the very beginning that the property belonged to his father named Raman. However, the derivation of the property in the name of Raman not specifically disclosed in the plaint and later enquiry, it has been revealed that the plaint schedule property was originally owned by Ayyappan, the brother of Raman and since he died intestate without wife and children, property devolved upon Raman and consequently on the death of Raman, the petitioner and the respondent herein (siblings) succeeded the estate of Raman and accordingly, the property is liable to be partitioned as sought for in the plaint. It is argued further that, since the amendment sought for to incorporate the said plea of derivation was disallowed, the petition is put into difficulties and therefore, the order impugned is liable to be set aside.

4. The learned counsel for the respondent zealously opposed the prayer in this original petition and supported the order assailed by the petitioner. According to the learned counsel for the petitioner, the amendment was sought for at a belated stage, that too, after remanding this matter by the appellate court. He also submitted that in paragraph No.4 of the written statement, in continuation of the reply notice issued to the legal notice, the defendant disputed title of Raman in respect of the property and also partiable nature of the plaint schedule property. But the plaintiff/petitioner miserably failed to search out the derivation of title canvassed and co-ownership as contended. Therefore, the amendment sought for at a belated stage cannot be allowed.

5. It is argued further that now the petitioner introduced an entirely new case in deviation from the earlier pleadings that too after remanding this matter by the appellate court. Therefore, the same not liable to be allowed.

6. On perusal of the plaint produced herein, it could be gathered that the plaintiff sought partition of the plaint schedule property claiming that the property is one left by his father Raman. But he had not stated how Raman obtained title to the property, sought to be partitioned. Because of this, the trial court dismissed the suit and the appellate court remanded the matter for fresh consideration and thereafter, the present amendment application was filed. It is pointed out by the learned counsel for the petitioner that as per Ext.P5, the extract of thandaperu account, the plaint schedule property stands in the name of Ayyappan, who is none other than the brother of the father of the plaintiff. On perusal of Ext.P5, this fact could be noticed. If the contention raised by the petitioner to the effect that the property originally owned by Ayyappan and in turn, the same got inherited to Raman then, the joint ownership as contended by the plaintiff is having force, in this suit for partition, where the brother of the petitioner is the defendant(respondent herein). In matters of partition, there is recurring cause of action and the right to have separation of joint ownership is an absolute right and therefore, technicalities or mere laches shall not stand in the way of granting the relief, if the relief is enti