A. BASHEER KHAN Vs. NOOR MOHAMMED

JUDGEMENT

(1.) This petition is by the legal representatives of the plaintiff in O.S. No.7915/2008 on the file of the III Additional City Civil and Sessions Judge, Bengaluru [for short, 'the civil Court']. The civil Court, by the impugned order dtd. 27/9/2018, has rejected the petitioners' application [I.A. No.17] for amendment of the plaint. The civil Court, by the impugned order dtd. 27/9/2018, has rejected the petitioners' application [I.A. No.17] for amendment of the plaint.

(2.) The civil Court has rejected this application for amendment opining that the petitioners' witness who has sworn to the affidavit supporting the application has been cross examined at length and it would be difficult to believe that this witness, who is educated, would not know whether the measurement of the alleged encroachment is mentioned or not in the plaint schedule. The civil Court has also opined that it cannot gather bonafides and hence the application must be rejected.

(3.) The learned counsels for the parties are heard and the records perused. The petitioners are prosecuting the suit for declaration that the original defendant, who was the owner of the property adjoining the western boundary, has encroached their property. The respondents do not dispute that they and the petitioners are the owners of the adjoining property but dispute that there is any encroachment. The plaintiff [the petitioners are his legal representatives] is categorical in the plaint that his property, which is described in the Schedule-A to the plaint, measures a foot on the eastern side, 27'.5" on the western side, 45' on the northern side and 50' on the southern side, and he has described the encroachment in Schedule-B but without giving measurement.