ABDULLA Vs. PATHUMMA

JUDGEMENT

(1.) THIS revision petition is filed by plaintiffs 2 to 5 against the order in I. A. No. 24 of 1998 in O. S. No. 164 of 1994 of the Munsiff's Court, Payyannu r. I. A. No. 24 of 1998 was filed under O. VI, R. 17 of the Code of Civil Procedure for amendment of the plaint.

(2.) PLAINTIFFS instituted the suit for permanent prohibitory injunction restraining defendants 1 and 4 from obstructing the plaintiffs from using plaint schedule property as pathway leading to plaint A schedule property and also for a mandatory injunction. It is alleged that the plaintiffs and their predecessors have been using the plaint B Schedule pathway for the last 56 years openly and without any interruption and the plaintiffs have got easement right over plaint B Schedule property both by prescription and necessity. Due to oversight, plaintiffs have omitted to include the prayer of declaration for easement right and hence it has become necessary to amend the plaint incorporating additional prayer for declaration. Request of the plaintiffs for amendment of the plaint was opposed by the contesting respondent no. 4 by filing counter affidavit. It is contended that the suit was filed in the month of June 1994 and cause of action arose on 1st June 1994. Petition for amendment was made on 3rd January 1998. Hence the prayer for declaration was barred by law since three years have elapsed after the cause of action.