CHEKKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) This civil revision petition is directed against an order refusing amendment of the plaint. The suit was for a declaration of the plaintiff's title to and possession of the property described in the schedule annexed to the plaint and for a perpetual injunction restraining the defendant, the State, from dispossessing him. The case put forward was that the property was part of old survey Nos. 34/9, 342 and 40/1 of Elathoor Amsom, Perumthuruthu Desom, which he had purchased in 1940, that he and his predecessor in title were in possession of the same for over 75 years, that it was wrongly surveyed as part of R. S. No. 183/3 of Talukulathur Desom in resurvey and that the wrong survey proceedings could not affect his title. The amendment sought to be made was that the disputed property lay between his holding and the river and that it was an accretion to his property to which he became entitled as riparian owner. The court below dismissed the application holding that the proposed amendment would bring in a new cause of action and that the same could not be allowed as such a case was not put forward in the notice under S.80, Code of Civil Procedure, sent by the plaintiff before the institution of the suit and that the application was a belated one.

(2.) It was urged on behalf of the petitioner that the cause of action was not altered by the proposed amendment and all that the plaintiff wanted to add was an additional ground for declaring his right to the property. I do not think the argument can be accepted.

(3.) Cause of action has been defined as every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the court, in other words, .the bundle of facts which it is necessary for the plaintiff to prove before he can succeed in the suit. As stated earlier the position taken in the plaint was that the land in dispute was part of his registered holding but what is sought to be alleged by the amendment is an entirely different one, namely, that though it is not part of his registered holding which he purchased in 1940 it is land to which he is entitled as riparian owner. This is totally inconsistent with the case pleaded in the plaint and, if the amendment is allowed, the character of the suit will be changed, introducing a new cause of action.