VEERLA DASARADHA RAMAYYA Vs. VEERLA VANKATESWARE RAO

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioners/plaintiffs under Article 227 of Constitution of India against the orders dtd. 11/2/2015 passed by the learned Principal Junior Civil Judge, Avanigadda, in I.A.No.364 of 2013 in O.S.No.184 of 2001 wherein and whereby the learned trial Judge dismissed the petition filed by the plaintiffs under Order VI Rule 17 CPC read with Sec. 151 of Civil Procedure Code (in short 'CPC') seeking permission to amend the plaint.

(2.) The case of the petitioners/plaintiffs before trial Court in brief is that they filed suit for permanent injunction against R1, R2/D1, D2 and during pendency of the suit 2nd petitioner/2nd plaintiff died. They submit that 1st plaintiff and D3, D4 are the legal heirs of their mother, but D3, D4 not cooperating with 1st plaintiff, due to that they have been added as defendants. It is alleged that R1, R2/D1, D2 tried to interfere with the possession of plaintiffs in plaint schedule property and also thatched hut, due to that, at first instance suit is filed seeking injunction simplicitor. They submit that R1, R2 have contended that there is a passage from their house site to the vacant site situated to the extreme north of the house site of plaintiffs and D1. In the suit, trial has been commenced. R1/D1 filed petition for appointment of an advocate commissioner to note down the physical features of suit locality including the passage as alleged by them in their written statement, which was allowed. Then advocate commissioner visited suit locality on 15/12/2012 and filed report on 28/1/2013. They further alleged that R1/D1 occupied the site in his front yard i.e. on the extreme south of plaint schedule property to an extent of 30 feet width from west to east and 33 feet with length from South to North, which is equivalent to 110 sq. yards of site shown in the advocate commissioner's plan highhandedly and illegally in the 2nd week of December 2012, which is also shown in commissioner's plan as 'EFGH'. They submit that the said 'EFGH' site shown as plaint 'B' schedule, which is part of plaint 'A' schedule and as R1 during pendency of the suit in the 2nd week of December 2012 trespassed into the site, 1st plaintiff intended to seek relief of declaration and recovery of possession and proposed amendment, which reads as under:

(3.) For which, respondents 1 and 2/D1, D2 have filed counter before trial Court denying the averments in the affidavit of the 1st petitioner/1st plaintiff. Their main contention is that proposed amendment materially changes the nature and scope of the suit and suit was originally filed on a particular cause of action in respect of plaint schedule property, but the proposed amendment is basing on different cause of action, which is not permissible under law and proposed amendment is also barred by limitation.