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2017 DIGILAW 666 (MP)

Kedar Singh Dhakad v. State of M. P.

2017-05-12

ANAND PATHAK

body2017
ORDER 1. Heard on admission. 2. The present writ petition under Article 227 of the Constitution of India has been preferred by the petitioner challenging the order dated 29.4.2017 (Annexure P-1) passed by Civil Judge Class-II Sabalgarh, District-Morena whereby application under Order VI rule 17 CPC preferred by the petitioner as plaintiff has been rejected. 3. Precisely stated fact of the case are that initially petitioner/plaintiff has filed a suit for declaration and permanent injunction in respect of suit property on the basis of his peaceful and uninterpreted possession under the knowledge of respondent/defendant and tried to perfect the title qua State of M.P. on the basis of adverse possession. As per allegations, petitioner was in possession of the suit property since 1st June, 1985. 4. Respondent/State opposed the contention of the petitioner by filing written statement and thereafter issues have been framed and matter went for trial. At the stage of trial, petitioner/plaintiff preferred an application under Order VI rule 17 CPC wherein petitioner/plaintiff wants to incorporate the pleadings in respect of his possession since 1st June, 1984 instead of 1st June, 1985 in the plaint. According to learned counsel for the petitioner, the said amendment in the pleadings is just and proper and does not change the nature of controversy. Trial has not commenced and therefore, as per the judgment of the Hon'ble apex Court in the matter of Ganesh Prasad Ojaha v. Hariram Ji Ojha and others [ 2016(II) MPWN 124 = 2016(3) MPLJ 435 ], the trial Court should have considered the amendment application before passing the impugned order. 5. On the other hand learned counsel for the respondent on the basis of advance notice opposed the prayer made by the petitioner and submits that petitioner/plaintiff through amendment application intends to alter the nature of controversy in as much as, after filing of written statement petitioner/plaintiff is making an attempt to gain the legitimacy in respect of possession of the suit property on the basis of patta in view of M.P. Krishi Prayojano Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhumi Par Bhumi Swami Adhikaro Ka Pradan Kiya Jana (Vishesh Upbandh) Ahdiniyam, 1984, the same is not permissible in law because it will alter the nature of the controversy. He relied upon the judgment of the Hon'ble apex Court in the matter of Union of India and others v. Vasavi Co-Op. He relied upon the judgment of the Hon'ble apex Court in the matter of Union of India and others v. Vasavi Co-Op. Housing Society Ltd. and others [ (2014)2 SCC 269 ], as well as Gurudwara Sahib v. Gram Panchayat Village Sirthala [ (2014)1 SCC 669 ], and submits that plea of adverse possession is not available to the plaintiff. Petitioner/plaintiff is trying to incorporate those pleadings, which was otherwise not pleaded in the plaint and trying to alter the nature of controversy. 6. Heard the learned counsel for the parties and perused the record. 7. It appears that petitioner/plaintiff has initially filed a suit for declaration and permanent injunction on the basis of adverse possession. After filing of written statement filed by the respondent/defendant, it appears that petitioner/plaintiff wants to change the nature of controversy and try to get the legitimacy over his alleged title on the basis of alleged patta and therefore, trying to incorporate the amendment by way of changing date. Although at the first blush, prayer of the petitioner/plaintiff appears to be innocuous whereby change of date is required to be incorporated, but it will change the tenure and texture of the controversy and therefore, benefit of amendment would not be available to the petitioner at this stage. The trial Court has rightly rejected the application preferred under Order VI rule 17 CPC by petitioner/plaintiff by passing the impugned order. Resultantly, the petition fails and the same is hereby dismissed.