KAMTA PRASAD Vs. SUGRIV PRASAD

JUDGEMENT

(1.) THIS petition is directed against the order dated 13-3-2003 of the Civil Judge Class-2, Nagod, Distt. Satna, in Civil Suit No. 25-A/95 by which the Court has rejected the application of the plaintiff/petitioner under Order 6 Rule 17 of the Code of Civil Procedure, 1908.

(2.) THE petitioner is claiming half share in Khasra Nos. 139,140 and 147 total area 54 Beegha and 18 Vishwa of Village Hardokhar. Bhagwat Prasad was the Bhumiswami of these lands. Out of total land, 33 beegha and 6 vishwa of land, was got recorded in the name of his nephew Sugriv Prasad in the year 1956. He executed a Will in respect of the remaining lands held by him in favour of plaintiff Kampta Prasad, who is nephew of Sugriv Prasad. Sugriv Prasad is claiming his exclusive possession over all the lands. The suit was filed for declaration and permanent injunction.

(3.) DURING the pendency of the suit, petitioner prayed for temporary injunction. The matter travelled to the High Court in Civil Revision No. 2076 of 1998 and by the order dated 29-1-2002, revision was finally decided and it was held that defendant No. 1 Sugriv Prasad will continue in possession of the lands bearing Khasra Nos. 139, 140 and 147 but he will not transfer or alienate these lands to anyone till the decision of the suit. In deciding the application under Order 39 Rules 1 and 2, CPC, the petitioner's possession was not found by the Court. After the decision of the application under Order 39 Rules 1 and 2, CPC, the petitioner moved an application under Order 6 Rule 17, CPC for amendment in the plaint seeking relief of possession over the land. It is alleged that the plaintiff was dispossessed on 29-1-2002 from the suit lands. This application was contested seriously by the defendants. The Trial Court by impugned order dated 13-3-2003 rejected the application on the ground that the amendment will change the nature of the suit and the relief of possession can not be granted as this will jeopardise the rights of the defendants. Aggrieved by which, this petition has been filed.