ROHIA BEEVI Vs. MARIAMMA (DIED)

JUDGEMENT

(1.) The revision petitioners are the appellants in A.S.No.78 of 2009 on the file of the learned Subordinate Judge, Padmanabhapuram and in the suit, the plaintiffs/respondents herein sought for declaration among various other reliefs. The suit was decreed in favour of the plaintiffs, against which, the defendants/revision petitioners herein have preferred an appeal. Subsequently, the plaintiffs / respondents herein have filed an application in I.A.No.5 of 2016 seeking certain modification with regard to extent of Item No.2 of the plaint schedule properties and the said application was allowed by the Trial Court, stating inter alia that the correction sought was only a formal one. Challenging the said order, the petitioners/appellants are before this Court.

(2.) It is the case of the revision petitioners that the amendment sought for cannot be granted in the midway and though there was a complaint of encroachment of one cent, the plaintiffs have been seeking for recovery of the entire Item No.2, but however, the Civil Court had granted the relief only to the limited extent. It is the further case of the revision petitioners that the suit was valued only for 42sq.ft and the Court Fee was also paid only for that area and as such, the decree passed was in consonance with the plaint filed by the plaintiffs and therefore, correction in the judgment cannot be amended at all. Contending that the petition is not maintainable in the absence of amendment in the plaint, it is prayed that the order of the Trial Court is liable to be set aside.

(3.) Per contra, learned counsel for the plaintiffs/respondents herein has contended that in the plaint, the extent of Item No.2 of the plaint schedule properties was wrongly mentioned as one cent instead of 42+ sq.ft. and further, in the rough sketch, the encroachment portion of one cent is to be marked as BEFG instead of BEF. It is the further case of the petitioners that since the said mistake came to light only during execution proceedings, immediately necessary amendment was sought in the plaint, which was on account of encroachment made by defendants.