MALU SANDH Vs. MANBODH BAGARTI

JUDGEMENT

(1.) THIS revision is against the order passed by the learned Munsif, Bargarh, allowing the amendment of the plaint in T. S. No. 44/83 of his Court. In order to appreciate the contentions raised by the parties, it is necessary to state a few facts. The plaintiff (opposite party) prayed for a decree for permanent injunction against the defendants (petitioners) in order to restrain them from disturbing his peaceful possession in respect of the suit land with an area of Ac. 2.10 decimals of cultivable land described in detail in schedule 'A' of the plaint. According to his averments, he had purchased the suit land from defendant No. 1 by virtue of a registered sale deed dated 24 -5 -1961 and since then he has been in Khas cultivable possession thereof. He has also been recorded as a Raiyat in the record of rights. In the year 1982 -83, the defendants created disturbance in his possession, obstructed him from raising cropland thereby created a cloud over his title. The defendants, resisting the plaintiff's claim, pleaded that the plaintiff, the sister's husband of defendant No. 1, was a displaced person from the Hirakud Dam Project area and took shelter in his house. In order to save the plaintiff from embarrassment, he had executed a sale deed in favour of the plaintiff, in respect of the suit land which was purely a transaction Benami in character. By executing' the sale deed, defendant No. 1 did not intend to convey title to the plaintiff in respect of the suit land; There was also no passing of consideration. The sale deed being a sham and nominal transaction, the plaintiff is not entitled to the decree prayed for.

(2.) DURING the pendency of the suit, the plaintiff filed a petition under Order 6, Rule 17, C. P. C. for amendment of the plaint. It was, inter alia, stated in the petition that the plaintiff had gifted away the suit land to one Shyam Sundar Banchhor by executing a registered deed of gift on 30 -11 -1981 and delivered possession of the gifted land to the donee. By virtue of the deed of gift, the donee has acquired title in respect thereof. The plaintiff, however, is possessing the suit land along with and on behalf of Shyam Sundar Banchhor and is sueing under his authority. Therefore, the plaint should be amended by addition of facts stated, above and the donee should be impleaded as a performa defendant. The defendants objected to the amendment and stated that on his own averments to the effect that the plaintiff had parted with title by executing a registered deed of gift in respect of the suit land in favour of Shyam Sundar Banchhor on 30 -11 -1981, he has non -suited himself. That apart, if the amendment would be allowed, the character of the suit would be changed inasmuch as in place of the suit based on a registered sale deed dated 24 -5 -1961, another suit based on a registered deed of gift dated 30 -11 -1981 will be substituted. The learned Munsif, however, by the impugned order, without making any discussion as to the facts and the points of law involved, allowed the amendment.

(3.) IN the present case, the suit is originally based on a registered safe deed executed by defendant No. 1 in favour of the plaintiff on 24. 5 1961. The plaintiff's claim of title is based on the aforesaid document. By way of amendment, the plaintiff has introduced a totally new cause of action by stating that he divested himself of title in respect of the suit land by executing a registered deed of gift in favour of Shyam Sundar Banchhor on 30 -11 -1981, even before the suit Was instituted. What is worse is that the donee Shyam Sundar Bhnchhor has himself not come forward claiming title on the strength of the deed of gift. If the amendment of the plaint is sustained, the plaintiff will not be entitled to a verdict In his favour that he still retains title in respect of the suit land so as to be entitled to a decree for permanent injunction. So the very foundation of the plaintiff's suit shall be shaken. It is needless to say that the learned Munsif should not have allowed such amendment of the plaint wholly changing the character of the suit. Accordingly, the impugned order cannot be sustained.