MANIKESWARI PRASAD DEV Vs. KISHORE PRASAD DEB

JUDGEMENT

(1.) Legality of the order dated 4.9.2008 passed by learned Civil Judge (Jr. Divn.), Berhampur in T.S. Case No. 134 of 1996 rejecting Petitioner's application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of written statement has been assailed in this writ petition.

(2.) Opposite party is the Plaintiff and Petitioner is the Defendant in the suit. Plaintiff and Defendant are brothers. In terms of compromise decree passed in T.S. No. 26 of 1972, Plaintiff, Defendant and their five co-sharers were allotted and are in occupation of different portions of share land as per the suit plan. Plaintiff is the owner in possession over plots C1 and C2 situated adjacent to plots B1 and B2 allotted to the Defendant. Plaintiff's share land has been recorded separately under Khata No. 989/19 of village Paramahansapur in Mutation Case No. 8899 of 1995 in accordance with the compromise decree. It is alleged by the Plaintiff that Defendant has broken a portion of wall on the Western boundary of plots C1 and C2 and has raised construction thereon. On the basis of such allegation, Plaintiff has filed the suit for mandatory injunction to direct the Defendant to remove the construction raised by him by breaking the wall and to restore the suit wall to its original condition. Defendant has filed written statement denying the allegation to have broken any wall. It is pleaded that as per the partition in terms of compromise decree there is no wall in existence as claimed by the Plaintiff. It is categorically pleaded that parties are in possession and enjoyment of land allotted to them as per the plan attached to the compromise decree in T.S. No. 26 of 1972. It was also categorically alleged that plan annexed to the plaint is inadequate and does not give a correct state of affairs.

(3.) In the application under Order 6 Rule 17 of the Code of Civil Procedure filed by the Defendant it is averred that as the crucial question to be determined in the suit is as to whether the suit property belongs to Plaintiff or Defendant, written statement is required to be amended to supply some relevant informations which were inadvertently left out. The proposed amendment seeks to incorporate the following two paragraphs in the written statement: