SUBASH CH. DAS AND ORS. Vs. KANHEILAL KHANDELWALLA AND ORS.
LAWS(ORI)-1988-9-41
HIGH COURT OF ORISSA
Decided on September 09,1988

Subash Ch. Das And Ors. Appellant
VERSUS
Kanheilal Khandelwalla And Ors. Respondents

JUDGEMENT

Lingaraj Rath, J. - (1.) The Defendants have approached this Court against an order refusing amendment of their written statement. The opposite parties brought the suit for declaration of their possessor title in respect of the suit property as also for permanent injunction against the Petitioners with the case that the land in dispute originally belonged to one Pratap Chandra Bhanja Deo and the Petitioners father late Ambika Charan Das had purchased the suit land from him. Ambika on 29 -4 -1960 proposed to sell the suit land to the Plaintiff -opposite parties and had received the entire consideration money therefore, but he having died on 31 -5 -1960, the sale deed could not be executed. The present Petitioners executed agreements on 30 -10 -1963, 29 -10 -1966, 31 -10 -1969, 29 -10 -1972, and 24 -10 -1975 acknowledging their late father 's agreement with tile Plaintiff opposite parties which forms the basis of the suit. Besides, the Plaintiff opposite parties also claimed adverse possession in respect of the suit land.
(2.) The defence of the Petitioners in the written statement was denial of execution of any agreement by their late father in favour of the Plaintiff -opposite parties and the of aim of adverse possession was also refuted. In Para -6 of the written statement the Defendants took a further plea that the Plaintiffs are required to prove that late Ambika or the Petitioners either had or have any legal authority or power to transfer he suit land As regards the agreements, the defence was that the same were executed not for transfer of the suit land but only as a security for certain loans advanced by the Plaintiffs to the Petitioner 's family. Besides it was stated that the agreements were non -enforceable being barred by time. A further plea was also taken that the description of the land in the schedule to the plaint was vague and insufficient and that the suit land was undemarcated.
(3.) In the proposed amendment the Petitioners wanted to insert at the end of Sub -para -(2) of Para -7 of the written statement the following: On plaint averments late Ambika had acquitted no transferable right and as such neither he nor his sons could transfer or contract to transfer any right or right of possession therein. And at the end of Sub -para (5) of Para -7 they wanted to insert the following: The description of suit land is vague and wrong. The correct boundaries are not given and Plaintiffs even want to grab public land. As the alleged transaction was in reality simple and security for loan there was no measurement or demarcation at any time and length of the suit place is much less than 300, and 18 gunths is not 300 X 55 and also there was no mention or pre -existing garage (Old) shed in alleged agreement. Both these amendments have been refused by the learned Subordinate Judge on twofold grounds, i.e. the proposed amendments take away the admission of the Defendants in the agreements that Ambika had agreed to sell the suit land arid that the prayer for amendments was barred under Sec. 32 of the Evidence Act.;


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