HASEM ALI MALLICK Vs. ABAD ALI MALLICK

JUDGEMENT

(1.) CHALLENGE is to the Order dated July 27, 2004 passed by the learned Additional District Judge, Kalna in Civil Revision No.2 of 2003 thereby setting aside the order dated May 23, 2003 passed by the learned Civil Judge (Senior Division), Kalna in Title Appeal No.10 of 1998 arising out of the Title Suit No.143 of 1989.

(2.) THE father of the plaintiffs/respondents/petitioners herein instituted a suit being Title Suit No.143 of 1989 against the defendants/appellants/opposite parties herein for declaration, permanent injunction in respect of the suit properties 'Ka ', 'Kha ' and "Ga ' to the plaint contending, inter alia, that 'Ka ' schedule property is a joint property of the parties and 'Kha ' schedule property is a passage leading to the tank in 'Ga ' schedule property. The opposite parties contested the said suit by filing a written statement denying the material allegations raised in the plaint.

(3.) BY the proposed amendment, the defendants have wanted to incorporate that the Plot No.s 3390 and 3391 had been purchased by the predecessor-in-interest of the defendants in the year 1934 and they got the concerned deed only on February 1, 2002, i.e., during the pendency of the appeal and as such, they had no scope to file the application for amendment at the earlier point of time. They have also contended that by such deed and subsequent by law of inheritance, they got right, title and interest over those two plots and the plaintiffs have no right, title and interest over the said two plots at all. So, the amendment has been sought for. The learned Trial Judge rejected the prayer for amendment, but, in exercising the revisional jurisdiction, the learned Additional District Judge allowed the Civil Revision on contests and the order dated May 23, 2003 passed by the learned Civil Judge (Senior Division) in Title Appeal No.10 of 1996 has been set aside. The Revisional Court has directed the learned Trial Judge to see that the amendment is allowed with costs. During the argument, Mr. Tapan Kr. Chakraborty, learned Advocate appearing for the petitioners, has submitted that the plaintiffs have taken several steps so that the filing of the suit may be frustrated. "During the pendency of the appeal, an application for local inspection and another application for adducing evidence under Order 41 Rule 27 of the CPC were filed in the appeal and on due consideration, those two applications were rejected. Even, the defendants preferred a Civil Revision being Civil Revision No.3539 of 2001 and that Civil Revision was also dismissed by the Order dated December 11, 2001. In this way, the defendants are trying to drag the matter ", submitted by the learned Advocate for the petitioners.