RAJENDRA PRASAD Vs. NADARAJAN

JUDGEMENT

(1.) Order allowing amendment of the plaint is under challenge in this original petition filed by defendants 3 to 5.

(2.) The suit as instituted is one for partition between the plaintiffs and the first defendant, and for eviction of defendants 2 to 5. Pending the suit, the first defendant-co-sharer expired. Since the plaintiffs are the legal heirs of the first defendant, the relief of partition has become infructuous. Defendants 2 to 5 filed a written statement challenging the title of the plaintiffs. In the said circumstances, the plaintiffs sought for amendment of the plaint to incorporate a prayer for declaration of their title and recovery of possession, and to delete the averments and relief relating to the claim for partition.

(3.) The first defendant, co-sharer, against whom the relief of partition was sought, having expired, the rights devolved on the plaintiffs. As rightly pointed out by the trial court, the relief of partition, sought in the plaint, no more survives. The title of the plaintiffs having been denied by the defendants, it is only proper that they seek for recovery of possession on the strength of their title. Appropriate averments in the said regard are necessary to be incorporated. The trial court was right in allowing the amendment application.