KUNDAN MAL Vs. THIKANA SIRYARI

JUDGEMENT

(1.) THIS is an appeal against the appellate judgment and decree or the learned Civil judge, Sojat in a suit for perpetual injunction and damages against the defendant-respondents. The plaintiff's suit was that certain plots had been let out by him to the defendants Nos. 2 to 7 and they were irrigated by a well known as 'kirawa' on the outskirts of the village Siryari. The defendants executed a deed of release in favour of the plaintiff on Baisakh Sud 15th, Smt. 2005. In accordance with that release deed, he handed over possession of the plots and the well in dis- pute to the plaintiff. The defendants, however, sub-sequently interfered with the irrigation of the plots in dispute from the well in dispute. It was prayed that the defendants be restrained by a perpetual injunction from interfering with the plaintiff's irrigation o the field from the well in dispute and that Rs. 20/be awarded by way of damages. This suit was filed in the Court of the Munsiff, sojat on 31-5-1949.

(2.) THE defendants filed a written statement. All the defendants excepting Krishna defended the suit. They denied having executed any deed of"re-of (sci) lease in favour of the plaintiff and having made over possession of the plots and the well to the plaintiff. Learned Munsiff framed several issues and parties produced their evidence. During the pendency of the suit, the plaintiff applied for amendment on 9-3-1951 praying that the prayer for possession of the property in dispute be added in the plaint. Learned Munsiff found the application for amendment very much belated. He consequently rejected the application for amendment and proceeded to decide the suit on the plaint, as it stood. He found that from the evidence, it was proved that the plaintiff was not in possession of the property in dispute. On this ground alone, he refused the prayer for injunction as well as for damages. As regards the execution of the deed of release, he held that it had been executed by the defendant,

(3.) THE plaintiff went in appeal and the application for amendment was pressed before the lower appellate Court also. Learned Civil Judge, who heard the appeal, does not appear to have been inclined to reject the prayer for amendment on the ground of its having been made late, but he maintained the order of dismissal of the application on the ground that if the amendment prayed for be made, the jurisdiction of the Civil Courts would be ousted. On the evidence, he held that the plaintiffs were not in possession of the property in dispute and consequently held that the suit for injunction only was not maintainable in the circumstances of the case. The judgment of the learned Civil judge is dated 12-12-1953 and it is against this judgment and decree of the learned Civil Judge that the plaintiffs have come in second appeal.