PARU Vs. GOPALAKRISHNAN EZHUTHASSAN

JUDGEMENT

(1.) DEFENDANTS are the revision petitioners. They at first moved the court by an interlocutory application for leave to amend the written statement. That was disallowed on two grounds. (1) No law allows amendments of writ ten statement and their remedy is only to, apply under 0. 8 R. 9 for leave to file an additional written statement and (2) the amendments sought for are inconsistent with the original contentions. When they applied under 0. 8 R. 9 by another application with a written statement, that prayer too was rejected on the ground of delay. Hence they came up in revision.

(2.) THE suit property is 79 cents. It belonged to plaintiff's brother Narayanan Ezhuthasan. Plaintiff got it under a will of his brother. THE suit was filed on the allegation that defendants, who were permitted by Narayanan Ezhuthassan to reside in the building for a monthly rent of 12 annas, encroached upon the property. Prayer in the suit is for recovery of possession of the land building. Defendants claimed tenancy right over 50 cents out of the suit property and contended that they are residing in the building which was put up by them. THEy also claimed to have obtained a purchase certificate.

(3.) THOUGH the first contention that the but was put up by them was found against by the Land Tribunal, that aspect need not stand in the way of allowing the amendment. Trial court alone is bound by that finding and has to incorporate the same in the judgment and dispose of the suit accordingly. That finding could be challenged in appeal as if it were a finding of the trial court and the appellate court can go into the correctness of that finding as if that is a finding of the trial court and even reverse the same. In such a contingency absence of pleading should not stand in the way of the defendants. The decision of the Land Tribunal need not therefore deter the court in allowing that amendment also if it is otherwise found allowable.