Hassan Vs. Habeeba - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD DAY OF JANUARY 2013 3RD MAGHA 193 OP(C).No. 274 of 2013 (O) ------------------------- AGAINST THE ORDER/JUDGMENT IN OS.94/2011 of MUNSIFF COURT,ATTINGAL PETITIONER(S): -------------------------- 1. HASSAN, AGED 4 YEARS S/O MOHAMMED MOIDEEN,VATTATTUVILA VEEDU,KAMBIKKAKOM KANIYAPURAM DESOM,KADINAMKULAM VILLAGE.

2. MARIYAMMA, D/O SULEKHA BEEVI,VATTATTUVILA VEEDU,KAMBIKKAKOM KANIYAPURAM DESOM,KADINAMKULAM VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): ---------------------------- HABEEBA, D/O NABEESA BEEVI,VATTATTUVILA VEEDU, KANIYAPURAM DESOM, KANIYAPURAM P.O. KADINAMKULAM VILLAGE-695028. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 274 of 2013 (O) APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT P1: TRUE COPY OF THE PLAINT, O.S.94/2011 BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED 17 2.2011. EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT WITH A COUNTER CLAIM DATED NIL IN O.S.NO.94/2011 BEFORE THE MUNSIFF'S COURT, ATTINGAL. EXHIBIT P3: TRUE COPY OF THE APPLICATION, I.A.1733/2012 DATED 30 7.2012 IN I.S.94/2011 BEFORE THE MUNSIFF'S COURT, ATTINGAL. EXHIBIT P4: TRUE COPY OF THE DETAILED OBJECTION DATED 6 8.2012 IN I.A.1733/2012 IN O.S.94/2011 BEFORE THE MUNSIFF'S COURT, ATTINGAL. EXHIBIT P5: TRUE COPY OF THE DETAILED ARGUMENT NOTE DATED 15 10.2012. EXHIBIT P6: TRUE COPY OF THE ORDER DTED 11 10.2012 IN I.A.1733/2012 IN O.S.94/2011 BEFORE THE MUNSIFF'S COURT, ATTINGAL. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE ds THOMAS P. JOSEPH, J.

- - - - - - - - - - - - - - - - - - - - - - - - - O.P.(C). No. 274 OF 201.- - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2013 JUDGMENT

Defendants in O.S.No. 94 of 2011 of the Munsiff's Court, Attingal are aggrieved by Ext.P6, order dated 11.10.2012 on I.A. No. 1733 of 2012 allowing amendment of the plaint to incorporate a plea of easement by grant as well over plaint C schedule as per a settlement deed relied on by the respondent/plaintiff.

2. Respondent filed the suit for a decree for prohibitory injunction against petitioners interfering with the right of access he claimed over plaint C schedule. In the plaint it was averred that petitioners had surrendered a portion of their property for the road and there was an agreement executed between the parties on 22.03.2004. Following that agreement, on the same day, petitioners constructed a compound wall separating the pathway.

3. Petitioners raised various contentions resisting the suit. While so, respondent filed I.A. No. 1733 of 2012 for amendment of the plaint to incorporate a plea of easement by grant as well. That application was resisted by the petitioners on various grounds but allowed by the learned Munsiff as per Ext.P6 order.

4. Learned counsel for petitioners, placing reliance on the decision in Ibrahimkutty v. Abdul Rahuman Kunju [1992 (2) KLT 775.has strenuously contended that since the respondent has already laid a claim for access through plaint C schedule as per agreement dated O.P.(C). No. 274 OF 201.-2- 23.03.2004 and alleged construction of compound wall separating the pathway, she cannot raise an inconsistent plea of easement by grant. Learned counsel contends that the decision above cited is clear that any claim of easement must contain specific and precise averment in the plaint as the right of easement is a precarious right. It is further pointed out by the learned counsel that in the concluding portion of the decision, since the allegations in the plaint were vague and inconsistent, plaintiff was given an opportunity to amend the plaint to raise specific and precise plea of easement which according to the learned counsel meant that only one type of easement can be claimed in the suit.

5. I am afraid that the decision does not say so. There, in the plaint the plaintiff had raised various claims of easement and the judgment and decree were found fault with by this Court for the reason that the plea of easement must be precise and specific. I think, there can be no quarrel with the said proposition. For, easement is a precarious right being a restriction on the proprietary right of the servient owner and a restriction on his right of enjoyment of his property. But, it is open to a plaintiff to raise inconsistent pleas in the plaint. So far as the claim of easement is concerned, various decisions say that it is open to the plaintiff to raise inconsistent pleas regarding the easement. But, when it comes to trial and before commencement of the evidence, plaintiff has to confine his claim to any one or other of the easement he has pleaded. (See Kallen Devi v. Raghavan [2012 (3) KLT 142]) O.P.(C). No. 274 OF 201.-3- 6. In this case the stage of recording evidence has not reached. May be, if the plea as originally made in the plaint and is incorporated by amendment are inconsistent, respondent may have to confine his claim to either of the two before recording of the evidence commences.

7. Learned counsel has invited my attention to Ext.P6, order to say that it is without sufficient reason that request for amendment is allowed. It is pointed out by the learned counsel that above stated aspects are not even referred.

8. True that what I have stated above do not find a place in Ext.P6, order. But, in the light of what I have stated above, if I find that amendment is necessary to decide the real controversy between the parties as sought for and allowed, I do not find reason to interfere with the ultimate order allowing amendment of the plaint. In that view of the matter, challenge to Ext.P6 order cannot be sustained. I make it clear that I have not expressed any opinion regarding the merit of the averments as originally made in the plaint or incorporated by amendment. Original Petition is dismissed. Sd/- THOMAS P. JOSEPH, JUDGE. ds