A party cannot amend a plaint to include a time-barred claim, and a decree passed against a deceased person is a nullity in law.

JUDGMENT

The 3rd defendant in O.S.No.399 of 2000 on the file of the Court of Munsiff, Kottarakkara is the appellant in this appeal. Plaintiff in the suit preferred R.F.A.No.55 of 2004 before the Court of Subordinate Judge, Kottarakkara, challenging the dismissal of a suit for fixation of boundary and partition. The lower appellate court allowed the appeal and remanded the case with certain directions. Aggrieved by the directions in the remand order, the 3^rd defendant has come up in appeal.

2. Heard the learned counsel for the appellant/3^rd defendant and the 1^st respondent/plaintiff.

3. Plaintiff is sister of the defendants. The plaint schedule properties belonged to their father Sulaiman Rawather. He executed a settlement deed bearing No.949 of 1980 of the Sub Registrar Office, Oyoor (Ext.A1). According to the plaint averments, the property shown in E schedule to Ext.A1 was allotted to the plaintiff. Although, there was a life interest created in favour of Sulaiman Rawather, on his death, she got absolute right over the property. There was no boundary put up to separate the properties included in Ext.A1. Since the defendants raised FAO(R) No.160/2014 2 untenable contentions, the plaintiff approached the court for the reliefs mentioned above.

4. The 1^st defendant remained absent. The defendants 2 to 7 filed a joint written statement. They contended that the suit is not maintainable. They admitted the execution of Ext.A1 by Sulaiman Rawather. However, they contended that Ext.A1 did not take effect. If is further contended that deceased Sulaiman Rawather subsequently cancelled Ext.A1 by executing a document bearing No.1921 of 1985 of the same Sub Registrar's Office, which is marked as Ext.B4. Ext.A1 settlement deed never came into force and the plaintiff has not obtained any title or possession as per Ext.A1. The suit is a misconceived action and therefore liable to be dismissed.

5. The trial court framed issues and tried the suit. Exts.A1 to A4 and B1 to B13 are the documents marked. PW1 and DW1 testified before the court. The trial court found that prayer for fixation of boundary was not allowable for the reason that the plaintiff has not even taken out a commission to identify the properties. It also found that deceased Sulaiman Rawather had executed several documents in respect of the plaint schedule properties after cancellation of Ext.A1. Therefore the suit as framed was found to be not maintainable.

6. The 1^st respondent/plaintiff took up the matter in appeal. The FAO(R) No.160/2014 3 lower appellate court, after considering the evidence in the case, agreed with the finding of the trial court that the suit as framed is not maintainable. However, the lower appellate court accepted the contention of the counsel for the plaintiff that they must be given an opportunity to amend the plaint, by incorporating a relief of declaration of title and recovery of possession. Further, the lower appellate court found that an opportunity to take out a commission also should be given to the plaintiff. It is pertinent to note that no application for amendment of the plaint was filed before the lower appellate court. Still the court remanded the case to the trial court for affording the plaintiff an opportunity to make suitable amendments to the plaint.

7. Learned counsel for the appellant contended that the remand order passed by the lower appellate court is legally unsustainable. According to him, the lower appellate court failed to consider that the request made by the 1^st respondent/plaintiff could not have been granted for the reason that it is hopelessly barred by the law of limitation. My attention is drawn to certain averments in the written statement. In paragraph 3 of the written statement, following averments are made:

“The averments in para 2 of the plaint are not fully correct. It is true that Sulaiman Rawther had executed a settlement deed No.949/1980. But the said settlement deed was cancelled by FAO(R) No.160/2014 4 Sulaiman Rawther