RAJEEV PRASAD YADAV Vs. ANITA SHARMA

JUDGEMENT

(1.) This petition challenges the order dated 4.7.2016 passed by the learned Civil Judge (Sr. Divn.), Champua in C.S. No.29 of 2015, whereby and whereunder learned trial court allowed the application for amendment of plaint.

(2.) Opposite party no.1 as plaintiff instituted the suit for declaration that the registered mutual agreement dated 1.11.2013 is binding on the plaintiff and defendants and permanent injunction impleading the petitioner as well as opposite party no.2 as defendants. The case of the plaintiff is that she is the owner of the land appertaining to Khata no.126/243, Plot no.247/1098 area of Ac.0.065 dec. and the defendant no.2 is the owner of the land appertaining to Khata No.126/244, Plot No.247/1099 area Ac.0.065 dec. of village Sading. The land of defendant no.2 situated between the land of plaintiff and defendant no.1. There is no connecting road to the main road. Plaintiff and defendant no.1 had requested defendant no.2 to provide road. He agreed. A mutual registered agreement was executed on 1.11.2013 between plaintiff, defendant no.1 and defendant no.2. As per the agreement, defendant no.2 left an area of 12' width, from (east to west), length 59'4 from north to south appertaining to Khata no.126/244, Plot no.247/1099. For the purpose of road, plaintiff and defendant no.1 agreed that they shall provide their individual share. The plaintiff paid an amount of Rs.30,000/- to the defendant no.2. When the defendant no.2 dug foundation for construction of boundary over the suit land, the plaintiff filed the suit seeking the reliefs mentioned supra.

(3.) Pursuant to issuance of summons, the defendant no.2 entered contest and filed a written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiff filed an application under Order 6, Rule 17 C.P.C. to incorporate the fact that the suit land was originally recorded in the name of one Kanhei Barik. After his death, his son Anirudha Barik became the owner. To press his legal necessity, he alienated some of the properties out of Khata No.11 to different persons. The plaintiff had purchased area Ac.0.065 dec. appertaining to Khata No.11, Plot No.247 for a valid consideration from the recorded tenant by means of a registered sale deed. Defendant no.2 had purchased an area Ac.0.065 dec. by means of a registered sale deed of the year 2010. The defendant no.1 had also purchased an area Ac.0.050 dec. from the recorded tenant by means of a registered sale deed of the year 2011. The vendees had taken possession of their respective plots. The vendor had provided a passage of 12' width in between plot no.247 which does not touch the land of the plaintiff and defendant no.1 from any side. The land of the plaintiff and defendant no.1 is bounded by private plots from all sides except the suit land for which the parties have entered into with the agreement for use of the suit land. The defendant no.1 has not come forward to perform his part of contract as per the mutual agreement. The defendant no.2 obstructed the passage left out by him for passage of the plaintiff and defendant no.1 for which the plaintiff took shelter before the local police and municipal authority. She sought to amend the prayer by directing the defendant no.1 to execute the sale deed in favour of defendant no.2. Defendant nos.1 and 2 filed their respective objections to the said application. Learned trial court came to hold that the proposed amendment with regard to the amendment nos.1 to 4, the foundational fact already exists. With regard to the proposed amendment no.5, it held that there was a mutual agreement between the parties for use of common passage. The plaint is silent with regard to the performance of contract of defendant no.1. The defendant no.1 is a party to the contract. Unless the same is allowed, it will lead to multiplicity of proceeding. With regard to the proposed amendment no.6, it held that the same is clarification of facts. It further held that the proposed amendment no.7 relates to subsequent development of the case. With regard to proposed amendment no.8, it held that the proposed amendment no.8 relates to addition of documents relied upon by the plaintiff. The same was allowed. It further held that the proposed amendment nos.10 and 11 will not change the nature and character of the suit. Held so, it allowed the application.