Badri Nath and Others vs Parma Nand and Others

Mohammad Yaqoob Mir, J.â€"Instant revision petition is directed against the order dated 3rd September, 2014 passed by the Court of Munsiff,

Udhampur, in terms whereof application seeking amendment has been allowed. Precise factual matrix of the case is required to be noticed for

effectual adjudication of the lis:

Respondents (hereinafter referred to as the plaintiffs) has filed a suit for prohibitory injunction so as to restrain the petitioners (hereinafter referred

to as the defendants) from raising any construction or causing any interference with the land measuring 5 kanals 10 marlas (excluding 4 marlas of

Gair Mumkin Road) falling under Survey No. 1183 situated at Village Rehmbal (Morha Rehni) with a further prayer for ordering demolition and

removal of construction, if any, on the suit land so as to restore its original position.

Defendants filed their written statement stating therein that they are not causing any type of interference with suit land measuring 5 kanals and 10

marlas. In fact, out of suit land covered by Survey No. 1576 owned and possessed by defendant No. 1,02 marlas have been transferred to

defendant No. 2 by way of sale deed and it is upon the said land she wants to raise construction.

During hearing of application for injunction, the trial court noticed that the identification of the land is required, as a result whereof has issued

commission in terms of Order 39 Rule 7 CPC whereby Tehsildar concerned has been asked to furnish the report.

Tehsildar has submitted a detailed report wherein he has made clear that land covered by Survey No. 1183 measuring 5 kanals and 10 marlas is in

exclusive ownership and possession of the plaintiffs, defendants, as such, are not causing any interference with the said land. It is further made clear

that 02 marlas of land were sold by defendant Badri Nath to defendant Anuradha but the possession as was delivered to defendant Anuradha, falls

under Survey No. 1162 which is recorded as Shamilat Deh. Out of the land as covered by Survey No. 1162 (Shamilat Deh), 11 marlas, as per

spot position, is shown in possession of defendant Badri Nath and 04 marlas in possession of defendant Anuradha. It is also made clear that

defendant Badri Nath is original resident of same village.

On filing of the said report, plaintiffs filed an application seeking amendment of the suit so as to include in the suit said land covered by Survey No.

1162 instead of land covered by Survey No. 1183.

In para 3 of the proposed amended plaint it has been alleged that the Shamilat Deh land covered by Survey No. 1162 is jointly owned and

possessed by all the owners of village Rehmbal (Morha Rehni) including the plaintiffs and finally it has been prayed that the defendants shall be

restrained from causing interference or raising construction over the land measuring 2 marlas (Shamilat Deh) covered by Survey No. 1162 situated

at Village Rehmbal.

Trial court has allowed the amendment, aggrieved whereof instant revision petition has been filed.

Learned counsel for the plaintiffs would contend that the revision petition is not maintainable in view of the bar contained in Proviso to Section

115 CPC because the order does not have the trappings of termination of the proceedings. Submission is without substance. In case amendment

application would have been rejected, necessary corollary was dismissal of the suit as no cause would survive to the plaintiffs for continuation of

the suit proceedings because the suit was entirely vis-Ã -vis land measuring 5 kanals 10 marlas covered by Survey No. 1183, therefore, revision

petition is held to be maintainable.

The type of amendment as has been allowed is totally unwarranted. Plaintiff have been given chance to involve the defendants in an unending

litigation. The plaintiffs had grievance vis-Ã -vis land covered by Survey No. 1183 the categoric stand of the defendants in that regard is that they

are not concerned with the land measuring 5 kanals 10 marlas covered by said survey No.

It appear that the plaintiffs have been attempting to drag the defendants into unnecessary litigation which is also substantiated by the the fact that

earlier also plaintiff had filed a suit before Assistant Commissioner (Collector) Udhampur regarding same 5 kanals 10 marlas of land covered by

Survey No. 1183. which has been dismissed on 26th April 2011, certified copy of the order is placed on records. In the said order, Assistant

Commissioner has observed that the suit has been unnecessarily instituted as Badri Nath (defendant) has got no concern with land covered by

Survey No. 1183.

Regarding Shamilat Deh land inhabitants of the village have claim on pro-rata basis. How the plaintiffs are claiming right over it to the exclusion

of all other villagers. That a apart, plaintiff in the propose amended plaint have made a generalized averment to the effect that the land covered by

survey No. 1162 (Shamilat Deh) is jointly owned and possessed by all the owner of the village Rehmbal (Morha Rehni). In order to add weight to

the submission, it has been pleaded that the defendant No. 2 and 3 are not residents of the village, so altogether a different case on different cause

of action for which amendment could not be permitted. The entire proceedings have been launched so as to deprive the defendant Anuradha from

enjoying possession of the land as is in her possession. If any in habitant or landowner of the village has any claim vis-Ã -vis Shamilat Deh land,

they can settle it of their own. Plaintiff cannot claim to be the representatives of all the villagers. Allowing such type of amendments would not only

add to the age of litigation but will be totally subjecting the defendants to un-necessary prolonged inconvenience.

The amendment is aimed at protraction of litigation and giving new life to suit which is impermissible. By proposed amendment entire structure of

the suit, cause of action and relief gets changed, therefore, such unwarranted amendment should not have been allowed. The trial court order is not

in accordance with law, as such, set aside.

The suit of the plaintiffs as is pending does not survive for any further consideration because regarding suit land measuring 5 kanals 10 marlas

covered by Survey No. 1183 defendants have not claimed any right so no cause to continue with the proceedings of the suit which accordingly

dismissed.

Revision petition succeeds, shall stand disposed of as above. Trial court record along with copy of the order be sent to the trial dismissed court.