V BUCHAIAH Vs. M BIKSHAPATHI

JUDGEMENT

(1.) This C.R.P. is filed against the order refusing amendment of written statement to plead adverse possession. The petitioners want to add the following : "Even otherwise, the defendants have become owners of the suit schedule property by way of adverse possession, since they are in continuous and uninterrupted possession since the death of their deceased daughter Smt. Varalaxmi who died on 27.9.1978."

(2.) The broad facts which according to the petitioner would give rise to inference of adverse possession were already mentioned in the written statement. The petitioners only want to take the legal plea. The learned Assistant Judge says that "the pleadings will be materially changed if the amendment is allowed". It is difficult to understand this observation. Probably, the learned Judge meant that the complexion of the case will be changed. But I do not think that any such material change in the nature and complexion of the case will happen if the amendment is allowed.

(3.) The learned counsel for the respondent vehemently contends that the plea of adverse possession cannot be sustained at all in view of the previous litigation and the conduct of the petitioners. However, that is a question turning on merits and it is perfectly open to the respondent to plead that the title could not have been perfected by adverse possession. I, therefore set aside the impugned order and allow the amendment sought to be made. However, in view of the belated application filed, I consider it a fit case to direct costs to be paid. The amendment will be allowed on condition of the petitioners paying to the respondent's cpunsel within one week from today a sum of Rs.250/- towards costs.