O R D E R

The Civil Revision Petition is directed against the order passed in I.A.No.516 of 2019 in O.S.No.266 of 2013, dated 20.12.2019 on the file of the District Munsif Court, Vadipatti, allowing the petition filed under Order 6 Rule 17 CPC.

2.The revision petitioners are defendants and the first respondent/ plaintiff has filed the suit in O.S.No.266 of 2013 on the file of the District Munsif Court, Vadipatti, claiming permanent injunction, restraining the defendants and their men, as per the Easements Act and Easement Rights, from making any construction so as to prevent the peaceful convenient enjoyment of the plaintiff over the suit property.

3.The suit property is a 5 feet width lane lying on the east of the houses of the plaintiff and the defendants. According to the plaintiff, himself and her predecessors in title have been using the suit lane from time immemorial to reach the main road and that thereby, the plaintiff has claimed easement by prescription. The defendants 1 and 2 have filed the written statement disputing the easementary right claimed by the plaintiff over the suit property and also specifically stating that long before filing of the suit, they had constructed a septic tank in the suit lane.

4.It is evident from the records that the plaintiff has filed an application under Order 20 Rule 9 C.P.C., in I.A.No.40 of 2015 for appointment of Commissioner to measure the suit property with the help of a surveyor and for filing of report and that the learned District Munsif after enquiry, has passed an order on 28.10.2015, dismissing the said petition.

5.It is further evident that subsequently the temporary injunction petition filed under Order 39 Rule 1 and 2 C.P.C., along with the plaint was taken up and after enquiry, the same was also ordered to be dismissed by the learned District Munsif vide order, dated 16.02.2018. Thereafter, the above petition under Order 6 Rule 17 came to be filed, seeking permission to amend the plaint and whereunder she has sought to replace the existing relief of permanent injunction by two prayers for declaration and for mandatory injunction and the proposed prayers are extracted hereunder for better appreciation :

“Add the prayer a(a) and a (b) instead of a 'a(a) To declare the suit mentioned property is a common pathway.

a(b) Direct the defendants by way of mandatory injunction to remove the construction of septic tank mentioned as 'MNOP' in Rough sketch in the suit pathway so as to make convenient to plaintiff for peaceful and uninterrupted enjoyment of the suit pathway property mentioned as ABCD in rough sketch”

6.Despite the serious objections raised by the defendants 1 and

2, learned District Munsif, after enquiry, has passed the impugned order dated 20.12.2019, allowing the amendment petition on costs.

7.As already pointed out, the plaintiff has claimed right over the suit property on the basis of easement by prescription in the plaint and she has also reiterated the same version in the affidavit filed in support of the amendment petition. But, in para '3' of the affidavit as well in the proposed prayer, she has claimed as a “common pathway.”

8.It is pertinent to note that claiming right over the suit property on the ground that it is a common pathway, is entirely different and contradictory to the stand taken earlier, that she has been claiming only on the basis of the easement by prescription. As rightly contended by the learned counsel for the petitioners, the plaintiff, through the proposed amendment for the declaratory prayer is attempting to change the nature of the suit itself and that cannot be permitted.

9.The plaintiff, by alleging that the defendants 1 and 2 are taking steps for constructing septic tank in the suit property, has claimed preventing injunction restraining the defendants from making any construction. The defendants 1 and 2, as already pointed out, in their written statement has specifically averred that long before filing of the suit, septic tank was construct