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2018 DIGILAW 202 (GAU)

Mahbub Ahmed Choudhury v. Abdul Quadir Choudhury

2018-02-01

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. P.K. Deka, learned counsel for the petitioners. Also heard Ms. R. Choudhury, learned counsel for the respondent Nos. 2 to 5. None appears for the other respondent. This application under Article 227 of the Constitution of India read with Section 151 CPC is filed against an order dated 4.3.2016 passed by the learned Munsiff No. 1, Karimganj in Misc. Case No. 76/2015 filed by the petitioners under Order VI Rule 17 rejecting the prayer for amendment of the plaint in Title Suit No. 217/2014. 2. The petitioners, as plaintiffs filed a suit against the defendants on 19.9.2014 praying for the following reliefs: "(a) For a declaration that plaintiffs & pro-forma Defendants Nos. 7 to 11 are the owner of the suit land of this suit by inheritance having right, title, interest & confirmation of possession thereof. (b) For a perpetual injunction restraining the principal defendants from attempt & threatening to create disturbance in the peaceful use, occupation & possession of the plaintiffs & proforma defendant Nos. 7 to 11 over the suit property of this suit & from attempting to encroach the suit property of this suit dispossessing the plaintiffs & proforma defendant Nos. 7 to 11 therefrom or in any way cause loss, sufferings & harassment to the plaintiffs & proforma defendant Nos. 7 to 11 & so on." 3. The suit land was described in the schedule to the plaint which comprises an area of 1 katha 3 chataks i.e. 0.02 acre of land. 4. It appears that on the subsequent date of filing of the suit, i.e. on 20.9.2014, the plaintiffs had submitted a petition for local inspection and based on the order of the court, Mr. M.L. Koiri, who was appointed as Advocate Commissioner, had conducted a spot verification and submitted a report. 5. It is not disputed by the learned counsel for the parties that the aforesaid Mr. Koiri was only accompanied by the counsel of the plaintiffs and neither the plaintiffs nor the defendants were present at the time of inspection. In fact, no notice was issued to the defendants for the purpose of local inspection by Mr. Koiri. 6. On 30.1.2015, the plaintiffs filed a petition under Order VI Rule 7 read with Section 151 CPC praying for the following amendments: "Schedule (A) After first para of Para No. 18. In fact, no notice was issued to the defendants for the purpose of local inspection by Mr. Koiri. 6. On 30.1.2015, the plaintiffs filed a petition under Order VI Rule 7 read with Section 151 CPC praying for the following amendments: "Schedule (A) After first para of Para No. 18. & before last para of Para No. 18 at Page No. 8 of the plaint the following para be inserted as Para No. 18(a). 18(a) That principal defendants on being learnt the institution of this suit, night before day on 23.09.2014 illegally, arbitrarily & forcefully encroached the Schedule 'A' mentioned land of this suit, (which is within the area of the schedule land of this suit i.e. northern portion of the schedule land of this suit) & constructed a temporary shed house with C.I. Sheet roof with following structure which is noted by Mr. M.L. Koiri, Advocate Commissioner, on visiting the spot on 23.09.2014 at about 3-45 P.M. 18(b) That Mr. M.L. Koiri, Advocate Commissioner visited the spot on 23-09-2014 at about 3-45 P.M. & during his inspection he found & noted that there is a house & Varanda constructed covering the area including the northern part of the suit land. The house & varanda are stretching in the east-west direction. Roughly length of the house & varanda is 30/50 cubit & breadth of the house if 5/6 cubits & that of varanda is 2 cubits. According to the Ld. Advocate of the plaintiff the varanda falls outside the suit land &, on the road side land of P. W.D. Road & varanda is the northern boundary of the suit land. The house & Varanda are constructed at a distance of about 1 cubit from the eastern boundary shop house of Abdul Kadir Choudhury & others. However, the roof of the house & varanda is extending upto the aforesaid eastern boundary shop house. 18(c) That house & varanda are extending upto the unplastered bricks wall of the western boundary shop house of Abdus Sukkur & there is no separate fencing/wall of the house on the west. 18(d) That house & varanda are made of sowed wood structure. The house is fenced on the east, north (except few cubits in eastern side) & south. The varanda is open. All roofing & fencing are with C.I. Sheets appearing fresh. 18(d) That house & varanda are made of sowed wood structure. The house is fenced on the east, north (except few cubits in eastern side) & south. The varanda is open. All roofing & fencing are with C.I. Sheets appearing fresh. 18(e) That house fencing are roughly 2/3 inches to 1 feet above the surface level. At some points fencing is improperly fitted & distended & sand/earth filled eastern portion of the house & varanda. Northern fencing of the house is absent, but there exists sawed wooden structure & so on. (B) That in para No. 19 at page No. 8 & 9 of the plaint, after the words "and on subsequent dates" & before the word, "within the jurisdiction of the Ld Court" the words "on the night before day on 23.09.2014 the principal defendants illegally encroached the Schedule A land of this suit & constructed a shed house thereon dispossessing the plaintiffs therefrom. (C) In para No. 21 after the sub-para (a) & before sub-para (b) at Page No. 9 of the plaint the following paras be inserted as Para No. 21 (aa) & 21(aaa). 21(aa) for a declaration that principal defendants illegally & forcefully encroached the Schedule A land of this suit & constructed a temporary house having sowed wooden structure with C.I. Sheet roof thereon & dispossess the plaintiffs therefrom & that principal defendants had/have no right, title, interest thereon & as such plaintiffs are entitle to get khas possession of the Schedule A land of this suit evicting the principal defendants & remove the illegal construction of the principal defendants therefrom & plaintiff are entitle to get khas possession of the same through Court. 21 (aaa) For a permanent injunction restraining the principal defendants from attempt to do any further change of Schedule A land of this suit & its structure or in any way cause loss & suffering to the plaintiffs. (D) After the schedule of the plaint & before verification in Page No. 10 of the plaint the following schedule be inserted as Schedule A. Schedule-A (within the area of the Schedule land of this suit) Porgona, Mouza, Dag, Khaitian, Patta etc. -Do- as of the Schedule above. Bounded by:- East: Land & shop house of Abdul Kadir Choudhury & others. West: Sabek land of Amir Ali & at present land & shop house of Abdus Sukkur. -Do- as of the Schedule above. Bounded by:- East: Land & shop house of Abdul Kadir Choudhury & others. West: Sabek land of Amir Ali & at present land & shop house of Abdus Sukkur. North: P.W.D. Road side land & further north P.W.D. Road (Fakirabazar-Nilambazar P.W.D. Road). South: Remaining area of abovementioned Schedule land. Within this boundary land measuring an area of: East-West:- 65 feet (approx) North-South:-10 feet (approx) Total:- 650 sq. feet (approx). & the temporary house having sowed wooden structure with C.I. Sheet roof & C.I. Sheet fencing." 7. A written objection was filed to the proposed amendment and by the impugned order, as noticed earlier, the prayer for amendment was rejected. 8. It appears that another local inspection was made on 11.9.2015, which is subsequent to the filing of the application for amendment. 9. The learned court below held that matters relating to proposed amendment are matters which had been developed subsequently and for the said purpose the petitioners relied upon the ex parte report of the local inspection of Mr. Koiri. The learned court observed that if the purposed amendment is allowed, the same would change the subject matter of the suit substantially. The court below also held that the subject matter of proposed amendment are matters which could have been raised at the time of institution of the suit and the petitioners cannot claim that they did not know about the matter of proposed amendment before the institution of the suit. The trial court also observed that the allegation of encroachment as alleged by the plaintiffs in the amendment application cannot be believed. 10. The approach of the learned trial court is not sustainable in law as even before evidence is led, the trial court had recorded a finding, going to the extent of holding that encroachment as alleged by the plaintiff cannot be believed. If the case of the plaintiffs is that they had been dispossessed from the suit land after the institution of the suit, where is the question of incorporating in the plaint regarding dispossession at the time of filing of the suit and therefore, this Court is of the considered opinion that the plaintiffs cannot be preempted from amending the plaint to incorporate the factum of dispossession after institution of the suit. It will be for the plaintiff to establish during trial that they had been dispossessed after filing of the suit. However, the learned court below is right in observing that the plaintiffs could not have relied upon the report of Mr. Koiri regarding dispossession by making copious reference to the report of the Advocate Commissioner. Order XXVI Rule 10(1) CPC provides that the Commissioner after a local inspection and after reducing to writing the evidence taken by him, has to return the evidence together with his report in writing signed by him to the court. Order XXVI Rule 10(2) provides that report and depositions to be evidence in the suit. Therefore, an extract of the report of the Commissioner cannot be made pleading in the very same suit. 11. Considering the matter in its entirety, the prayer for amendment is allowed to the following extent: "(A) After first para of Para No. 18 & before last para of Para No. 18 at Page No. 8 of the plaint the following para be inserted as Para No. 18(a). 18(a) That principal defendants on being learnt the institution of this suit, night before day on 23.09.2014 illegally, arbitrarily & forcefully encroached the Schedule 'A' mentioned land of this suit, (which is within the area of the schedule land of this suit i.e. northern portion of the schedule land of this suit) & constructed a temporary shed house with C.I. Sheet roof. (B) That in para No. 19 at page No. 8 & 9 of the plaint, after the words "and on subsequent dates" & before the word, "within the jurisdiction of the Ld Court" the words "on the night before day on 23.09.2014 the principal defendants illegally encroached the Schedule A land of this suit & constructed a shed house thereon dispossessing the plaintiffs therefrom. (C) In para No. 21 after the sub-para (a) & before sub-para (b) at Page No. 9 of the plaint the following paras be inserted as Para No. 21 (aa) & 21(aaa). (C) In para No. 21 after the sub-para (a) & before sub-para (b) at Page No. 9 of the plaint the following paras be inserted as Para No. 21 (aa) & 21(aaa). 21(aa) for a declaration that principal defendants illegally & forcefully encroached the Schedule A land of this suit & constructed a temporary house having sowed wooden structure with C.I. Sheet roof thereon & dispossess the plaintiffs therefrom & that principal defendants had/have no right, title, interest thereon & as such plaintiffs are entitle to get khas possession of the Schedule A land of this suit evicting the principal defendants & remove the illegal construction of the principal defendants therefrom & plaintiff are entitle to get khas possession of the same through Court. 21 (aaa) For a permanent injunction restraining the principal defendants from attempt to do any further change of Schedule A and of this suit & its structure or in any way cause loss & suffering to the plaintiffs. (D) After the schedule of the plaint & before verification in Page No. 10 of the plaint the following schedule be inserted as Schedule A. Schedule-A (within the area of the Schedule land of this suit) Porgona, Mouza, Dag, Khaitian, Patta etc. -Do- as of the Schedule above. Bounded by:- East: Land & shop house of Abdul Kadir Choudhury & others. West: Sabek land of Amir Ali & at present land & shop house of Abdus Sukkur. North: P.W.D. Road side land & further north P.W.D. Road (Fakirabazar-Nilambazar P.W.D. Road). South: Remaining area of abovementioned Schedule land. Within this boundary land measuring an area of: East-West:- 65 feet (approx) North-South:-10 feet (approx) Total:- 650 sq. feet (approx). & the temporary house having sowed wooden structure with C.I. Sheet roof & C.I. Sheet fencing." 12. The plaintiffs will file amended plaint in terms of the amendment allowed before the trial court and after such amended plaint is filed, the defendants will be at liberty to file additional written statement. The impugned order is interfered with to the extent indicated above and the petition stands partly allowed. No cost.