DIBAKAR MOHANTY Vs. COLLECTOR
HIGH COURT OF ORISSA
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(1.) THE petitioner and the OPP. parties Nos. 4 and 5 are the plaintiffs. they filed suit No. 176 of 1962 on 3-8-1962 against opposite parties Nos. 1 to 3, the collector, Cuttack. the Sub-Divisional Officer. Cuttack and the Tahasildar. Khasmahal, Cuttack. The suit was for permanent injunction on the allegation that the plaintiffs have perfected their title by adverse possession from the time of their forefathers. In paragraph 2 of the plaint the following averment was made:-" this piece of land has been in exclusive and undisturbed possession of the plaintiffs' family since the time of the plaintiff's ancestors. The ancestors of the plaintiffs were holding their shops in this piece of land were earning their livelihood and after them, these plaintiffs have continued to hold those shops till this day. " a little more than ten years after the plaintiffs filed an application for amendment of the plaint under Order 6, Rule 17, C. P. C. the following amendment was prayed for to be inserted in the plaint:--"that the suit land appertains to Touji No. 2500 belonging to ex-intermediary ray Jogesh Chandra. That the plaintiffs and their forefathers are in continuous peaceful possession of the suit land asserting permanent tenancy right since 1932 with the knowledge of the ex-proprietor and the defendants openly by constructing houses where they used to run their shop and residing therein with their family members. The plaintiffs and their forefathers are agriculturist as well as doing business. That after the vesting of the estate to which the suit land appertains, in 1954 the plaintiffs continued to be a permanent tenant under the State of orissa. That the plaintiffs have been compelled to file this suit on receipt of ejectment notice from the State of Orissa dated 9-4-58. " on the objection of the defendants that the amendment changes the nature of the suit it was rejected on 26-10-72 by the learned Munsif. It is against this order that the Civil Revision has been filed.
(2.) I have extracted the relevant passages from the plaint and the amendment petition to show that the basic facts are the same. The claim of the plaintiffs is based on possession in their own right, title and interest ever since the time of their forefathers. The only difference which they want to bring by wav of amendment is that whereas in the plaint they claim title by adverse possession, in the amendment they clarify by saying that they have acquired permanent tenancy. The legal inference from the facts already pleaded in the plaint is desired to be changed in the amendment application substantially. On the same facts it is open to a party to ask for different reliefs. Asking for different reliefs on facts already pleaded does not alter the nature of the suit At any rate, such an amendment is to be very liberally construed as it does not prejudice the defendants in any manner and more so when the evidence has not been gone into. I am therefore inclined to allow the amendment despite the fact that it was sought about ten years after.
(3.) IT is somewhat remarkable that the learned Munsif has allowed this litigation to be protracted for over ten years. The matter must be dosed within three months after the records so back. The amendment is allowed and so also the Civil revision. As the amendment was sought ten years after, the plaintiffs are to pay a cost of Rs. 100/- to opposite parties nos- 1 to 3 within one month from today, failing which the amendment shall stand dismissed without further reference to bench.;
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