NIMMAKAYALA SEETHA Vs. KOTHAPALLI RAMESH KUMAR

JUDGEMENT

(1.) PLAINTIFF filed this revision challenging the orders passed in I.A.No.285 of 2014 moved by her in O.S.No.1580 of 2007 on the file of the I Additional Junior Civil Judge, Kakinada, under Order VI Rule 17 C.P.C for amendment of the plaint. The suit is filed for recovery of possession of land of an extent of Ac.0.18 cents lying on the western and northern side of the plaint schedule property which is shown in red colour in the plaint plan after ejecting the defendants there from and for mesne profits of Rs.18,750/ - and also to grant future profits which may be worked out on a separate application. The suit is instituted on 31.10.2007. Along with the plaint, plaint schedule describing the suit property is filed together with a rough sketch. The case of the plaintiff was that, she acquired title and interest in the plaint schedule property through a registered settlement deed dated 26.08.1970 executed in her favour by her mother. It is set out in the plaint that land of an extent of Ac.7.00 lying in old survey no.384 corresponding to new survey no.539 of Samalkot Village was the joint family property of Sri Kothapalli Rama Rao and Sri Kothapalli Chakradharudu. When they partitioned, the southern half -Ac.3.50 cents -fell to the share of Sri Kothapalli Chakradharudu, Sri Chakradharudu disposed of his share of Ac.3.50 cents on different dates. On 10.07.1961, plaintiffs mother purchased from him Ac.1.00 of land lying on the northern side of his share. Out of this Ac.1.00 of land, land of an extent of Ac.0.75 cents was settled by the mother of the plaintiff under a registered settlement deed dated 22.02.1965 in favour of the plaintiff. The remaining land of an extent of Ac.2.50 cents was purchased by the plaintiff and her sister jointly under a registered sale deed dated 15.07.1964 from Sri Chakradharudu and his sons. The plaintiff and her sister have equal interest. Accordingly, they have acquired Ac.1.25 cents each. Ac.0.25 cents of land which was initially retained by the mother of the plaintiff is given gift by her to the plaintiff under a registered gift deed dated 26.08.1970. Thus, the plaintiff has acquired right, title and interest over Ac.2.25 cents while her sister has right, title and interest in Ac.1.25 cents. It is the further case of the plaintiff that the defendants have purchased Ac.0.75 cents of land on 17.07.1991 from Sri K. Rama Rao and sons. It is the case of the plaintiff that during the agricultural year 2003 -2004, in the course of transplantation, the defendants encroached into the plaint schedule property on the western and northern sides. During summer of 2004, as per the advise of the village elders, the plaintiff got the measurements of her land and thus realized that the defendants have encroached land of an extent of Ac.0.18 cents and hence, suit is filed for their ejectment.

(2.) IT is to be noted that the plaintiff filed I.A.No.149 of 2010 for appointment of an Advocate Commissioner for inspecting the plaint schedule land and to take measurements thereof. The learned Advocate Commissioner filed report before the Trial Court setting out that the boundaries to the plaint schedule land are not tallying with the ground realities and hence, returned the warrant. At this stage, the plaintiff has filed I.A.No.177 of 2012 on 03.02.2012 seeking amendment of the plaint. This I.A.No.177 of 2012 has been closed by the Court preserving liberty to seek amendment later on. At this stage, it is appropriate to notice that in the written statement filed in the suit, the defendants have disputed the correctness of the plaint schedule and the rough plan annexed to the plaint while denying any encroachment of land of Ac.0.18 cents of the plaintiff.

(3.) ON behalf of the plaintiff, P.W.1 was examined. P.W.1 filed his chief affidavit into the Court on 19.07.2013 and he has been cross -examined on 30.07.2013. During the course of cross - examination, his attention has been drawn to the discrepancies with regard to the plaint averments, the plaint plan and the rough sketch annexed to the plaint. Chief affidavit of D.W.1 was filed into the Court on 25.02.2014 and D.W.1 was cross -examined on 12.03.2014. Thereafter, the suit was posed for arguments. At that stage, I.A.No.285 of 2014 is moved on 05.05.2014 seeking amendment of the plaint. It is this application which is opposed by the opposite side setting out that the said application is moved at a time when the suit is coming up for arguments and hence, it cannot be allowed. The defendants have also urged that the plaintiff is now seeking to fill up the gaps in her evidence and the plaintiff was not diligent at all. The defendants disputed the bonafidees behind the amendment.