NETAI CHANDRA GHOSH Vs. GOUR MOHAN GHOSH

JUDGEMENT

(1.) This Rule was obtained by the defendant No. 1 against orders allowing an amendment of the plaint. The plaintiff instituted Title Suit No. 95 of 1971 in the Court of the first Munsif, Basirhat, against defendant No. 1. the petitioner before me and others for a declaration of joint title end possession in respect of the suit property. There was also a prayer for permanent injunction restraining the petitioner from raising any structure disturbing the joint possession of the plaintiff in the suit property. The case was that the plaintiff and the defendant No. 1 had been in separate possession of different portions of the building in the suit property. The defendant No. 1 was making preparation for raising a structure in the adjacent vacant land which, if made, would cause serious inconvenience to the plaintiff's enjoyment of the property in his possession. The defence was that the parties were in possession of separate portions of the property by amicable arrangement and the alleged constructions were well within the portion of the defendant and would cause no injury to the plaintiff.

(2.) The plaintiff's petition for temporary injunction restraining the defendant from making constructions was rejected by the learned Munsif but was allowed on appeal. The defendant No. 1 obtained a Rule against the order and this Court disposed of the Rule giving certain directions. The defendant No. 1 was granted leave to complete the construction of the roof of the newly constructed room only, to plaster its walls and to take electric connection therein all at his risk and without any right to claim any equity for such constructions in, the suit or in a partition suit, if instituted. The plaintiff was further given leave to amend the plaint praying for a decree for partition and the defendant was further restrained by an order of injunction from demolishing or changing the character of the existing structures. This order was passed on May 29, 1972.

(3.) The plaintiff on receipt of the records by the trial Court filed an application on May 3, 1973 for amendment of the plaint by insertion of the usual prayers for partition and also for mandatory order upon the defendant for dismantling structures alleged to have been made by the defendant after High Court's order and restoring them to the original condition. The learned Munsif allowed the application in respect of the prayer for partition but rejected the prayer for mandatory order by order dated June 8, 1973.