Krishan and Another vs Rajender and Another

Sat Pal, J.—This petition has been directed against the order dated 24th July, 1997, passed by the Additional Civil Judge, Gohana. By this order, the learned Civil Judge has dismissed the application filed by the plaintiffs under Order 6 Rule 17, CPC for the amendment of the plaint. In the impugned order, it has been observed that the plaintiff had originally taken plea that they were in possession of the suit land as gair marusi under the defendants and thereafter, by way of proposed amendment, they had taken the plea that they were in possession of the gair marusi without payment of any rent.

After hearing the learned counsel for the parties, I, however, find that the observations by the learned trial Court are contrary to the facts on record and cannot be sustained in view of the law laid down by the Apex Court in various judgments. In para 1 of the plaint before the proposed amendment, it has been stated that the plaintiffs are gair marusi tenants of agricultural land in question. In para 1 of the plaint, it has further been stated that the plaintiffs are owners of the above suit land and the plaintiffs had been cultivating the suit land for about 20 years and are cultivating the same at present also. In the application seeking the amendment, the petitioners have not been prayed for deleting these paragraphs but have only prayed for adding the averments given in paras 2-A and 4-A, which reads as under :-

"2-A. That the possession of the plaintiffs over the suit land is open, hostile, known to the whole world, continuous and without any interruption and to the knowledge of the owners of the suit land. The plaintiffs are in possession over the suit land for the last 20 years and they are cultivating this land after the death of their father. Earlier to them, their father was in cultivating possession of the suit land and till today, they have not paid anything to anybody in respect of batai etc.

"4-A. That a decree for declaration be passed in favour of the plaintiffs and against the defendants to the effect that the plaintiffs are owners in possession in equal shares of the suit land by way of adverse possession and without paying any rent etc. to the owners of the land to anybody and the defendants have no concern with the suit land."

From the facts stated herein above, I find that the plaintiffs by the proposed amendment are not trying to change any admission made in the plaint but on the contrary by adding paras 2A and 4A, the plaintiffs are taking alternative pleas which are permissible in terms of the law laid down by the Supreme Court.

For the reasons stated herein above, I am of the opinion that the impugned order dated 24th July, 1997, passed by the learned trial Court cannot be sustained. Accordingly, the petition is allowed and the impugned order dated 24th July, 1997 is set aside. Consequently, the application filed by plaintiffs under Order 6 Rule 17, CPC stands allowed. The parties are, however, left to bear their own costs.