KEDARNATH JAIN Vs. SHRIPAL MAHAJAN

JUDGEMENT

(1.) One of the defendants in Title No. 215 of 1971 now pending in appeal T.A. No. 60/8 of 1975-30 in the court of the Additional District Judge, Bhawanipatna, is the petitioner in this case challenging the order D/-- 19-7-1980 by the appellate court rejecting the application for amendment of the written statement. The opposite party 1 filed the suit for declaration of his title over the disputed land and for delivery of possession of the same after demolition of any structure built thereon by the defendants and to restrain them from encroaching upon the disputed land. The gist of the plaintiff's case was that ho was the owner of plot No. 352 of village Tusra and the defendants were the owners of plot No. 351 of the same village, the two plots being contiguous to each other. The disputed land, a part of plot No. 3152 measuring 13 in length and 6 in width towards the East and 1 width towards the West, was all along in possession of the plaintiff and was being utilised as a cowshed. The plaintiff further averred in the plaint that on 10-3-1971 the defendants taking advantage of his absence from the village forcibly encroached upon the disputed land and occupied the same and hurriedly constructed a room by amalgamating the disputed land with the portion of the village lane which they had encroached. The defendants in their written statements while dealing with the assertions in the plaint stated thus:

(2.) The trial court framed as many as six issues of which issue 3 was whether the plaintiff had right, title and interest over the suit property and issue 4 was to the effect that whether the defendants had perfected their title over the suit property by adverse possession. While dealing with these two issues which were taken up together the trial court in para. 5 in the judgment proceeded on the basis that admittedly plot 352 belonged to the plaintiff and while according to the plaintiff the suit land was a part, of plot No. 352, the case of the defendant was to the effect that the same did not appertain to that plot. The trial court ultimately decreed the suit in part against the defendants, declared the title of the plaintiff over the suit land and directed the defendants to deliver the vacant possession of the suit land within two months, failing which the plaintiff was at liberty to take vacant possession of the same through court after demolition of the structure thereon.

(3.) Being aggrieved by the aforesaid judgment the defendants approached the appellate court in Title Appeal No. 60/80 of 1975-60. In the said appeal an application D/- 16-4-1980 for amendment of the written statement was filed. Amendment sought was to the following effect:--