ALL MOHMMAD MANROO Vs. ABDUL REHMAN

JUDGEMENT

(1.) The petitioner has filed suit for recovery of possession and injunction in respect of land measuring 14 mar/as covered under Survey No.177 and land measuring 10 marlas covered under Survey No. 179 situated in village Barzalla, Srinagar. An order passed by the Trial Court had been challenged in revision petition in this Court when the revision petition was pending, the petitioner made an application seeking thereby the amendment of the plaint. This Court while deciding the revision petition directed the Trial Court to consider that application regarding amendment.

(2.) The petitioner herein approached the Trial Court with an application to allow the amendment of the plaint for the addition of the reliefs in the shape of decree for mandatory injunction for removal of the shed constructed during the pendency of the revision petition. Other relief prayed for was with regard to removal of blockade which was caused by blocking the road leading to the house of the petitioner through the disputed land. The Trial Court rejected the application firstly on the ground that no permanent structure had been raised on the alleged spot. This finding was based on the report of the Commissioner. Secondly, the relief for the removal of the blockade of the gate was also refused because the gate had not been so locked. Even if there was any such obstruction that can be removed in case main relief of mandatory injunction is granted in the suit.

(3.) Heard the arguments. The learned counsel of the petitioner has contended that the findings of the Trial Court run contrary to the factual position as existing on spot. The gate which has been referred by the Commissioner in his report is a different one. He has omitted to make an inspection regarding the alleged blockade. That in case a party alters the nature of the disputed property it is the bounden duty of the Trial Court to restore it to the same position. By allowing the amendment, the nature of the suit will not be changed and the cause of action will remain the same. Concluding his arguments, the counsel has contended that the Commissioner in his report has stated that there is a shed or tin sheets resting on wooden pillar's support. In this shed fire-wood has been stored. The removal of this shed is not covered in the reliefs of the plaint because it was subsequently raised.