SURESH PRASAD Vs. RAMASIS PRASAD

JUDGEMENT

(1.) This revision is directed against the order dated 18.07.2002 passed by the learned Civil Judge, East at Gangtok whereby application moved by the defendants/petitioners for amendment in the written statement was rejected.

(2.) The suit from which this revision has arisen was filed by the plaintiff/respondent for declaration that the plaintiff is the owner in respect of the disputed Pan Gumti and that defendant Nos.1 and 2 who are petitioner Nos.1 and 2 respectively in this Revision are the trespassers in respect thereof. The plaintiff pleaded that the Executive Officer, Bazar Department, Government of Sikkim through an order bearing No:3226/B dated 6.3.1974 granted permission to the plaintiff to put up a Pan Gumti and thereafter, he installed the Pan Gumti. It is further alleged that in the year 1993, defendant No.1 who is his cousin did not have any work and, therefore, requested him for running business in the Pan Gumti and out of sympathy the plaintiff granted him permission to run business in the Pan Gumti in the middle of 1993, but subsequently, defendant No.1 overcame his poverty but did not vacate the Pan Gumti despite the plaintiff's repeated request and defendant No.1 instead handed over the Pan Gumti to his brother, Jitender Prasad, defendant No.2 in August, 2000. The case of the plaintiff is that the Pan Gumti was given by him to defendant No.1 only temporarily but he did not hand over the possession thereof subsequently despite requests. The suit was contested by the defendants alleging that defendant No. 1 is the exclusive owner of the Pan Gumti. They admitted that initially the place where the Pan Gumti has been installed was allotted to the Plaintiff and that the Pan Gumti was being run by the plaintiff but at the same time asserted that the Pan Gumti had been installed by Janaki Prasad, the uncle of the parties. They have further stated that when defendant No. 1 started running his shop from the year 1993, the Pan Gumti was in a dilapidated condition lying unused and vacant as the Urban Development and Housing Department had cancelled the license of the plaintiff and thereafter the department in the year 1993 let out the place to defendant No. 1 by granting license in his name and then defendant No. 1 thoroughly repaired and renovated the same. Their case is that defendant No. 1 became the owner of the Gumti on account of the license granted to him and by his incurring expenditure of the sum of Rs. 10,500/- on repairing and renovating the Gumti and also by giving Rs. 4000/- to the plaintiff who demanded that amount as cost of some useful undecayed wooden planks.

(3.) By the amendment, the defendant sought to add that in the year 1989, the Gumti in question was given to defendant No.l in partition between the plaintiff, defendant No.1 and their uncle Janaki Prasad. The plea sought to be added is inconsistent with the plea already taken in the written statement. To say that defendant No.1 became the owner on account of the alleged partition deed is inconsistent with the plea that he became owner because of some license given by the department concerned and by making repair and renovation of the earlier Gumti and by making payment of Rs.4000/- to the plaintiff. In my view, the impugned order does not suffer from any jurisdictional error.