P SUBBA NAICKER Vs. VELUCHAMY NAICKER

JUDGEMENT

(1.) AGGRIEVED by the order of the learned District Munsif dated 12. 8. 2003, made in I. A. No. 681 of 2003 in O. S. No. 124 of 2002, refusing to amend his plaint, the petitioner/plaintiff has filed the present Revision under Article 227 of the Constitution of India.

(2.) THE petitioner/plaintiff filed a civil suit in O. S. No. 124 of 2002 on the file of District Munsif, Koilpatti seeking a declaration that the suit second schedule property which is a path-way is common and for a consequential injunction restraining the respondents from transferring with his right to same as a path-way. THE petitioner has also claimed that the suit third schedule property which is a open space was retained in common between them and the respondents and the same has to be used as a common area. According to the petitioner, he is entitled to light and air and to drain water from his house through the suit third schedule property and the channel situate thereon in to the street on the south. THE respondents while admitting his right over the suit II schedule however, denied that the suit III schedule was kept as a common path-way. THEy claimed that the northern half belonged to him and the southern half belonged to them. THEy also admitted the petitioners right of draining rain water. Acc ording to the petitioner, in view of the stand taken by the respondents he was advised to seek an amendment of the prayer in his plaint thereby introducing an alternative relief of easement over the suit III schedule. THE said application was resisted by the respondents contending that petitioner cannot be allowed to claim both ownership and a right of easement. THE learned District Munsif who heard the application, dismissed the application for amendment holding that the character of the suit is changed by the amendment. Against the said dismissal, the petitioner has filed the above revision under Article 227 of the Constitution of India.