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2002 DIGILAW 1 (GAU)

Sunil Ghosh v. Dijendra Lal Das

2002-01-02

R.S.MONGIA

body2002
R.S. MONGIA, C.J. — The petitioner as plaintiff had filed a suit (T.S. No. 59/91 (N) re-numbered as T.S. 93/93(H) in the Court of the Assistant District Judge, Nagaon for declaration of right, title and interest of the plaintiff over the suit land and for khas possession. In paragraph 1 of the plaint, it was averred as under: “That a plot of land measuring 2B-0K, 0 Lochas covered by dag No. 455 of P.P. No. 97 of lumding town kissam under Lumding mouza, Dist-Nagaon (Assam) comprises the suit land. The detailed description of the suit land is given in the Scheduled below. The schedule may be treated as part of the plaint,” In the schedule to the plaint, the suit property is described as under:- “An area 2B-OK-4 Lochas of land covered by Dag No. 455 of P.P. No, 97 of Lumding town kissam in,Mouza Lumding, Dist-Nagaon, Assam bounded by - North : A.P. Land in possession of Kalu Chetri; South : A.P. Land in possession of Digendra Lal Das; East: River and plaintiffs own land; West: Road.” An application was filed by the plaintiff U/O.6, Rule 17 of the Code of Civil Procedure seeking permission to amend the southern boundary of the suit property in the schedule to the plaint. So far as the southern boundary in the schedule to the plaint is concerned, it has been mentioned as A.P. land in possession of Digendra Lal Das. It was sought to be substituted by mentioning “Road leading towards Harlongfar River”. This application for amendment was disallowed by the trial court by the impugned judgment dated 26.8.97. Hence the present revision petition. While admitting this revision petition, the Motion Bench had stayed the further proceeding of the case pending before the trial court by order dated 15.9.97. 2. It is submitted by the learned counsel for the petitioner that when the application for amendment was moved on 1.7.96 the suit was at a very initial stage, inasmuch as, even the entire evidence on behalf of the plaintiff had not been recorded. According to the trial court, the amendment sought would give fresh cause of action and would have changed the nature and character of the suit itself. 3. The area of the suit land is not being changed nor the other 3 boundaries. Even the dag No. in which the suit land is situated is also not being changed. According to the trial court, the amendment sought would give fresh cause of action and would have changed the nature and character of the suit itself. 3. The area of the suit land is not being changed nor the other 3 boundaries. Even the dag No. in which the suit land is situated is also not being changed. According t the learned counsel for the petitioner, if the entire area is mentioned and the dag No. is also given, the land can be identified even with the three boundaries. By changing the southern boundary neither any fresh cause of action arises nor the nature of the suit changes. It is only to be very precise for the identification of the suit land that the boundaries of the suit property are mentioned in the plaint. Even if three boundaries are being mentioned the land can be identified and the suit can well be decreed. The purposes of mentioning the boundaries of a suit property is only for identifying the suit property so that if the suit is decreed there will be problem in executing the same. It is not understood as to how by changing just one boundary of a suit property in the schedule to the plaint, a fresh cause of action arises. I do not agree with the findings of the/ learned trial court. The respondent-defendants are also in no way prejudiced by the change in the southern boundary, inasmuch as, as observed above, even by mentioning the three boundaries, i.e. northern, eastern and western, the area of the suit property as well as dag No. of the suit property stood well identified. 4. For the foregoing reasons, I allow the revision petition and set aside the order dated 26.8.97 passed in T.S. 93/93 by the trial court. The plaintiff is allowed to amend the plaint as mentioned in his application for amendment by changing the southern boundary of the suit property in the schedule to the plaint. However, this amendment of the plaint is allowed to the plaintiff on payment of Rs. 1,000/- (Rupees one thousand) as costs to the respondent-defendants. The trial court records be sent back immediately. The trial of the suit be expedited and all endeavour should be made to dispose of the suit within a year.