ABDUL RAHIM NASKAR Vs. ABDUL JABBAR NASKAR

JUDGEMENT

(1.) THIS is a petition for revision of an order of a learned Subordinate Judge refusing to amend a plaint. The plaintiff brought a suit for a declaration of his title in certain land of which he claimed to be in possession. The land wag described in Schedule Ka of the plaint and the plaintiff claimed a six anna interest therein. On one reading of the plaint it would appear that the plaintiff claimed an undivided six annas in the plots mentioned in the schedule. But we cannot overlook the fact that in the body of the plaint he claimed that he had been in exclusive possession of the six annas which had apparently been allotted to him on a partition. Being in exclusive possession of his share suggests that the six annas in the property mentioned in schedule Ka must have been demarcated and therefore his claim was to specific portions of each of the plots mentioned in the schedule.

(2.) AS the case proceeded, the plaintiff realised that it would be necessary to amend the plaint in order to claim specific portions of the plots in question. The learned Subordinate Judge refused to grant the amendment asked for. He says that there is nothing in the plaint to show that the plaintiff possessed any demarcated portion of any of the plots of the suit land. That is true to some extent, but, as I have said, there is also a plea that the plaintiff was in exclusive possession of his share by cultivation and it is impossible to cultivate exclusively six annas of any property unless that share has been demarcated or separated from the remaining ten annas.

(3.) IT was, however, urged before us that we could not interfere under Section 115, Civil P. C. Whether an amendment should or should not be granted is a matter within the discretion of the Court and it is urged that this Court cannot interfere under Section 115, Civil P. C. with the exercise of such discretion.