MD MOHIBUDDIN Vs. JAME DEY

JUDGEMENT

(1.) Being aggrieved by the order dated 01.09.2006 passed by the learned Civil Judge (Jr. Div.), 2nd Court, Asansol in T. S. No. 1/99 allowing the prayer of the plaintiff/O. P. for amendment, the defendant/petitioner has come up before this Court in revision.

(2.) The plaintiff/O.P. instituted the said suit for declaration and permanent and mandatory injunction contending that he is the owner of 'A' schedule property where he has been residing since the time of his predecessor by making a pucca boundary wall leaving vacant space on all sides as per municipal rules. The land of the defendant/petitioner is located towards the northern side, and apart from the plaintiffs left out space, there is a vacant land of about 4 ft. x 5 ft., described in schedule 'B', being used by the plaintiff openly and peacefully as his passage for ingress and egress since the time of his predecessor and thus he has acquired title thereto by adverse possession. All on a sudden on 31.10.98 the defendant started foundation over the said piece of land for the purpose of encroaching the same by making a pucca wall sun shed in the ground floor and balcony on the first floor. At the instance of the plaintiff a proceeding under section 144/107/116(3) Cr. PC was drawn up against the defendant. Thereafter the above suit was filed. The suit was dismissed by the learned Trial Judge without any decision as to whom the property belongs, for which and for other reasons, the learned Court of Appeal below remanded the suit for retrial after framing an additional issue and giving the parties an opportunity to adduce additional evidence, pointing out the defence contention that the suit is not maintainable without prayer for recovery of khas possession. The plaintiff filed an application for amendment of the plaint by way of describing the area of 'B' schedule property which was lacking, as pointed out by the learned Court of Appeal, and adding the prayer for recovery of possession etc. which was allowed by the impugned order.

(3.) It was contended by Mr. Alam, learned Counsel for the petitioner, that the proposed amendment would change the nature and character of the suit which will involve retrial of the case of new footing.