In suits for declaration and injunction regarding immovable property, the limitation period is 12 years under Article 65, not 3 years under Article 58 of the Limitation Act.

ORDER

The Civil Revision Petition is directed against the order passed in I.A.No.1052 of 2018, in O.S.No.442 of 2014, dated 05.04.2019, on the file of the Additional District Munsif Court, Dindigul allowing the petition filed under Order VI Rule 17 C.P.C.

2. The respondent as plaintiff has filed the above suit claiming permanent injunction restraining the defendant and his men from any manner encroaching or interfering with the enjoyment of the common lane for proceeding to his house. The revision petitioner has filed a written statement and is contesting the suit. Pending trial, the plaintiff has filed an application under Order VI Rule 17 C.P.C., seeking permission to amend the plaint in I.A.No.1052 of 2018. The revision petitioner / respondnet has filed the counter statement raising serious objections. The learned District Munsif, after enquiry, has passed the impugned conditional order allowing the petition on payment of costs. Aggrieved by the impugned order, the defendant has preferred the present revision.

3. The case of the respondent/plaintiff is that the Advocate Commissioner has filed his report and plan and through that, the plaintiff came to know that the portion of the defendant's property and his encroachment are in common lane, that the defendant alone has encroached common lane portion and made constructions therein, that the defendant has also raised a defence that the plaintiff has never used the common lane and the plaintiff is not having any right over the common lane and that therefore, the plaintiff was constrained to file the above petition to amend the plaint for including the reliefs of declaration and mandatory injunction.

4. The defence of the revision petitioner / defendant is that the defendant has never encroached any portion in the common lane, that the plaintiff or his father have never used the common lane, that the plaintiff has not even mentioned the measurements with regard to the common lane and the extent of the alleged encroachment made by the defendant, that the Advocate Commissioner has failed to find out the survey stones and hence, he measured the property on the basis of the compound wall of the houses situated therein, that the Advocate Commissioner has also not mentioned about the length and breadth of the lane, that the plaintiff due to previous enmity has been attempting to grab the property from the defendant and that the above petition has been filed only to cause loss and hardship to the defendant and that therefore, the petition has to be dismissed.

5. It is not in dispute that the revision petitioner / defendant has filed the written statement on 06.02.2015, that the Advocate Commissioner has filed his report on 10.08.2015 and that the present amendment petition came to be filed on 02.08.2018. The learned Counsel for the revision petitioner would submit that since the plaintiff has filed the suit originally for permanent injunction, the proposed amendment seeking reliefs of declaration and mandatory injunction, after lapse of 4 years from the filing of the suit are beyond the period of limitation and as such, the same cannot be permitted. The learned Counsel for the revision petitioner has relied on the judgment of the Hon'ble Supreme Court in L.C.Hanumanthappa (since dead) represented by his LRs., Vs. H.B.Shivakumar reported in 2016 (1) SCC 332 (Civil Appeal No. 6595 of 2015, dated 26.08.2015), wherein since the defendant denied title of the plaintiff in the written statement, the plaintiff has filed an application for amendment of the plaint to add the relief of title, after more than 20 years of filing written statement. The Hon'ble Apex Court, by observing that 3 years period is prescribed under Article 58 of the Limitation Act to amend from cause of action, that the cause of action arose on 16.05.1990 when the written statement was filed and that the limitation could not be extended under Section 22 of the as the wrong in that case was not a continuing wrong.

6. This Court