BAR CHAND Vs. HARKALI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed by the plaintiff -petitioner against the order dated 9.8.2005 passed by the trial Court, dismissing the application of the plaintiff under Order 6 Rule 17 CPC for the amendment of the plaint.

(2.) The facts which are relevant for the decision of the present petition are that Bar Chand plaintiff had filed a suit for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff in the suit land and for declaration to the effect that the revenue entries showing defendants No.2 and 4 as occupancy tenants over the suit land were illegal and void and not binding against the rights of the plaintiffs. In the suit in was alleged by the plaintiff that he was owner in possession of the suit property, even though in the revenue record the plaintiff was recorded owner to the extent of one half share in the suit land, yet he was in possession of the entire land in dispute, inasmuch as one Narainu had delivered the possession of the suit land to the plaintiff in the year 1977 and subsequently and Narainu had expired. It was alleged that after the death of Narainu, defendants No.2 and 4 had started interfering in the possession of the plaintiff. It was alleged that the adjoining land was also owned and possessed by the plaintiff and that the land was recorded in the ownership of the plaintiff alongwith Amar Singh and Dhian Singh but they never occupied the suit land and had no concern with the land in dispute. It was alleged that defendant No.1 having no concern with the suit land had started digging over the land by trespassing into the same and that defendant No.1 in collusion with defendants No.2 and 4 was trying to change the nature of the land in dispute, even though defendant No.1 and defendants No.2 and 4 had no right, title and interest in the suit land. It was further alleged that the revenue entries showing defendants No.2 and 4 in possession of the suit land was illegal and void inasmuch as defendants No.2 and 4 were never inducted as tenants over the suit land. It was accordingly prayed that the defendants be restrained from interfering in the possession of the plaintiff over the suit land and a decree for declaration be also passed to the effect that the revenue entries showing defendants No.2 and 4 as occupancy tenants over the suit land were illegal and void. The suit was contested by the defendants.

(3.) During the pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 CPC seeking to amend the plaint so as to incorporate therein the relief for a decree for mandatory injunction directing defendant No.1 to remove the unauthorized construction raised over the suit land by demolishing the same and restore the suit land to its original position and a decree be also passed directing defendant No.1 to handover vacant and peaceful possession of the land measuring 4 biswas on which defendant No.1 had raised construction during the pendency of the suit. It was alleged that during the pendency of the suit and inspite of the orders having been passed by the Court on 6.7.1999 in the application under Order 30 Rules 1 and 2, CPC and the said order having been confirmed on 2.11.2000, defendant No.1 had forcibly encroached upon the suit land and had constructed two rooms alongwith kitchen over a part of the suit land. It was alleged that the said act had been committed by defendant No.1 after the filing of the suit and accordingly it had become necessary for the plaintiff to amend the plaint and to seek appropriate relief from the Court. It was alleged that besides, making the amendment in the heading of the plaint, the plaintiff may also be allowed to amend the plaint so as to amend the relief clause so as to claim decree for mandatory injunction and also for possession.