GOPAL CHANDRA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Plaintiff is in appeal against the Judgment of the Learned District Judge, Cuttack in T.A. No. 59 of 1997 confirming the Judgment and decree of the Learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No. 325 of 1995.

(2.) THE Appellant filed the suit for declaration of his right, title over the suit land on the ground that the suit land was lying vacant and his father started possessing it in the year 1947 and since then his father and he himself (Plaintiff) are in continuous possession of the suit land and have acquired title over the same by adverse possession. Though the Government Pleader appeared for Defendant No. 1 -State of Orissa, none of the Defendants filed written statement. The Plaintiff examined four witnesses and produced the copy of the 80, C.P.C. notice, postal A.D. and certified copy of R.O.R. in respect of Khata No. 236, which were marked as Exts. 1 to 3 respectively. On consideration of the pleadings and the evidence, the Trial Court came to hold that the suit land is the ceiling surplus land, that the Plaintiff could not prove that his father was in possession of the suit land, that they had not constructed house on the suit land and that there was no satisfactory evidence as to how and when adverse possession began and against whom such adverse possession is claimed. The Trial Court, accordingly, dismissed the suit. The Appellant went in appeal. In that appeal, the Appellant filed a petition under Order 6, Rule 17, C.P.C. for amendment of the plaint incorporating the name of the owner against whom he claimed adverse possession, the starting date of possession and the manner of such possession etc. The said prayer was rejected on the ground that it was not an amendment of formal nature and that it would amount to filling up the lacuna of the Plaintiffs case. The 1st Appellate Court then considered the submission of the parties, re -assessed the materials and confirmed the findings of the Trial Court. Challenging that Judgment and decree, the Appellant has filed the present appeal.

(3.) MR . S.K. Nayak -2, Learned Counsel for the Appellant submits that amendment of pleading is permissible even at the Appellate stage. According to him, the prayer for amendment should be considered liberally so that multiplicity of the proceedings can be avoided and substantial justice can be imparted to the parties. In support of this plea, he cited the case of Gudu Bhotra and Ors. v. Tapaswini Rondhari and Ors. 1997(1) OLR 434. He submits that the first Appellate Court did not follow the spirit of Order 6, Rule 17, C.P.C. in its right perspective.