GYANENDRA NATH CHAKRAVARTI Vs. PORESH NATH PAL

JUDGEMENT

(1.) This appeal arises out of a suit instituted on the 29 November 1913, which was originally framed as one for damages and permanent injunction. It was alleged that the plaintiffs had title to and possession of the land in suit, and that the defendants had trespassed upon the land. The defendants on the 12 January 1914 filed a written statement in which they pleaded that the plaintiffs having no right to or possession of the land, the suit for damages in the form laid could not proceed according to law. On the 11 July 1914 the plaintiffs by a petition prayed for amendment of the plaint with a prayer for declaration of their title and it was alleged that the plaintiffs had been holding khas possession of the land, and had acquired title by adverse possession.

(2.) The case came on for hearing on the 22 January, 1915, and the Court of first instance found that the plaintiffs were out of possession of the disputed land before the institution of the suit, and that the suit for injunction and damages could not, under the circumstances, be maintained, although it came to the conclusion that plaintiffs title was proved, and defendants had failed to prove adverse possession, for 12 years.

(3.) Against that decree the plaintiffs appealed, and the lower Appellate Court was of opinion that the order of the Court of first instance disallowing the prayer for amendment of the plaint by addition of a prayer for declaration of the plaintiffs title to the land was not a proper one, as none of the parties could have been prejudiced by the grant of the prayer at that stage, and as the question of title was material for the proper decision of the suit. That Court accordingly remanded the case to the lower Court for an amendment of the plaint in terms of the plaintiffs petition and for a re-trial of the suit after such amendment. After the case went back on remand, the plaint was amended with a prayer for declaration of plaintiffs title. Then on the 16 January 1917, the plaintiffs put in another petition for further amendment of the plaint with a prayer for recovery of possession, and the prayer which they wanted to add by way of amendment was as follows: "Or if in the opinion of the Court the plaintiffs are declared to have been dispossessed, then the Court may be pleased to pass a decree in favour of the plaintiffs for recovery of possession of the said property." This was objected to on behalf of the defendants on the ground that the amendment was illegal, and altered the character of the suit. This objection was, however, disallowed, and the case was tried out with the result that the plaintiffs suit was decreed by the Court of first instance, and that decree was confirmed on appeal by the lower Appellate Court. The defendants have appealed to this Court.