Smt. Namrita and Another vs Ram Parkash and Others

S.S. Sodhi, J.—The impugned order of the trial court permitting amendment of the written statement cannot indeed be sustained.

The matter here arises from a suit for permanent injunction filed by the plaintiffs seeking to restrain the defendants from interferring with their ownership and possession over the lard in suit. It was the case of the plaintiffs that by a sale-deed executed on February 6, 1984, they had bought 38 kanals and 8 mattes of land from Sbiv Kumar. This land comprised Khasra Nos. 19/R/4 (8 kanals); 7(8 karals) 5/1 (4 kanals) and 6/2 (4 kernels). The land in suit being 24 kanals out of land purchased by them on that date.

The defendants, on their part, set up a sale-deed executed in their favour on July 5, 1968 pertaining to 47 kanals and 8 marlas of land. The vendor here too being the same Shiv Kumar. They took the plea that in pursuance of the sale, they were delivered possession of the land purchased by them and also Khasra No. 5/1 (4 kanals) and 6/2(4 kanals) and they have been in possession thereof ever since. They thus claim to have become owners of this land by adverse possession. After coming into possession, they further claimed that they improved the land and also made construction thereon.

During the trial, a Local Commissioner was appointed, who, by his report exhibit P/5, found the defendants to be in possession of not only khasra Nos. 5/1 and 6/2, but over the entire land in suit.

It was after seeing this report of the Local Commissioner that the defendants applied for amendment of the written statement with a view to take up the plea that they had become owners of the entire land in suit by adverse possession. The prayer to this effect being conditional upon the report of the Local Commissioner being up held by the court.

In the circumstances, as narrated, there can be no escape from the conclusion that the trial court clearly fell in error in permitting such amendment in the written statement. The case now sought to be set up is an entirely new case, in that, where as previously title by adverse possession was put up only in respect of a part of the land in suit and impliedly thereby the possession and ownership over the remaining land in suit, stood conceded as being that of the plaintiffs, now the defendants seek to wriggle out of this and claim the entire land in suit. This is clearly an entirely new cause of action on a new basis, namely; the report of the Local Commissioner, which incidently has yet to be accepted by the trial court.

Keeping in view, therefore, the totality of the circumstances of the case, the permission granted by the trial court for amendment of the written statement must be held to be contrary to law and the prayer of the defendants to this effect is hereby declined The impugned order of the trial court is accordingly thus set aside and this revision petition is hereby accepted. Costs of this petition shall be costs in the suit. Counsel fee Rs. 300/-.

Parties are directed to appear before the trial court on September 10, 1990.