M SADASIVAM Vs. DURAISAMY

JUDGEMENT

(1.) THIS Civil Revision Petition is filed against the fair and decretal order dated 31.1.2007 made in I.A.No: 1599 of 2006 in O.S.No.274 of 1985 on the file of the learned Subordinate Judge, Namakkal, dismissing the I.A., filed by the second defendant under Order 6 Rule 17 CPC to amend the plaint.

(2.) THE brief facts of the case leading to the filing of this revision is as follows:-

(3.) PER contra, learned counsel for the respondent submitted that the revision petitioner should have filed a separate suit seeking proper relief in respect of the property which was sought to be included in the I.A., The respondent has got separate defences in that regard and those defences cannot be adjudicated in the present final decree application and it can be adjudicated by way of independent suit. The sale deed executed by Marappa is sham and nominal on 9.2.1996. Since no prayer for possession is prayed for, the possession of Duraisamy is adverse to the interest of real owner. This question cannot be gone into in the final decree proceedings. Further the petitioner cannot seek to amend the plaint and the suit property, filed by the plaintiff. Moreover the possession of the property which was sought to be included is in the hands of the plaintiff and therefore the petitioner claims any right in those properties pursuant to the decree granted by the Supreme Court can only sue for recovery of possession since in the appeal before the Supreme Court he has only prayed for the relief of declaration and no consequential relief has been prayed for.