ABDUL MOTALEB Vs. MD. ERSHAD ALI

JUDGEMENT

(1.) This is a plaintiff's appeal by leave and is directed against the judgment and order dated 13th November, 1989 passed by a Division Bench of the High Court Division in revision, Civil Revision No. 560 of 1989, making the Rule absolute and setting aside order dated 14.5.1989 passed by the Subordinate Judge, 3rd Court, Dhaka allowing amendment of the plaint in Title Suit No. 2 of 1987.

(2.) Leave was granted to consider whether the High Court Division rightly interfered with the order of the Subordinate Judge allowing amendment of the plaint upon applying the correct principles of law as to amendment of pleadings as provided under Order VI rule 17 of the Code of Civil Procedure, 1908 and enunciated in various decisions of this and other Courts.

(3.) Plaintiff-appellant filed Title Suit No. 603 of 1985 in the First Court of Subordinate Judge, Dhaka which on transfer to the 3rd Court of Subordinate Judge was renumbered as above i.e., Title Suit No. 2 of 1987. It was initially a suit for simple declaration of title to the suit property measuring about .11 decimals in C.S. Plot No. 243, Khatian No. 22, present Dag No. 932, D.P. Khatian No. 199, Mouza Ibrahimpur within P.S. Dhaka Cantonment. It was, inter alia, stated in the plaint that the schedule property originally belonged to Md. Azimuddin, father of the plaintiff who had acquired .33 decimals of land from the disputed Plot No. 243 in a partition suit being Title Suit No. 46 of 1954 of the First Court of Subordinate Judge, Dhaka. The plaintiff's father while in possession of his share in the disputed Dag made a gift to the plaintiff of the suit land (.11 decimals) by a registered Hiba-Bill-Ewaz Deed 2.6.1982 and delivered possession of the same to the plaintiff. The plaintiff alleged that the defendants were creating disturbance to his peaceful possession of the suit land and were trying to dispossess him there from.