Decided on December 28,2013

Shamshad Ahmad And Ors. Appellant
Mussoorie Dehradun Development Authorities And Ors. Respondents


Alok Singh, J. - (1.) PLAINTIFFS /petitioners have approached this Court assailing the order dated 17.12.2013 passed by 2nd Additional Civil Judge (Sr. Div.), Dehradun in O.S. No. 649 of 1995, Shamshad Ahmad and others v. Mussoorie Dehradun Development Authorities and others, thereby rejecting the application moved by the plaintiffs/petitioners, herein, seeking amendment in the plaint under the provisions of Order 6 Rule 17 CPC. Brief facts of the present case, inter alia, are that plaintiffs filed a suit against the defendants/respondents, herein, for declaration that plaintiffs be declared owner of the property bearing Municipal No. 40 (present Municipal No. 119/1), Dhakpatti, Rajpur, Dehradun and for permanent injunction restraining the defendants not to interfere in the possession of the plaintiff over property Municipal No. 40 (Present No. 119/1) Dhakpatti, Rajpur Dehradun. Mandatory injunction is also sought to the effect that defendants be directed to restore the possession of property Schedule "A" after removing illegal/un -authorised constructions raised by the defendants.
(2.) MR . Piyush Garg, learned counsel appearing for the plaintiffs and Mr. Rahul Consul, learned counsel appearing for defendants do not dispute that the properties mentioned in the plaint under Schedule "A" and Schedule "B" are part of the property having Municipal No. 40 (present Municipal No. 119/1) Dhakpatti, Rajpur, Dehradun and further do not dispute that encroachment sought to be removed is mentioned in Schedule "A".
(3.) PARA 37 of the plaint as originally pleaded was as under: "37. That the defendants have started using the land portion of property No. 40, Dhakpatti, Rajpur, Dehradun other than the land beneath the illegal constructions of defendant No. 1 and which is not the subject matter of Suit No. 4 of 1987 pending in the court of Addl. Civil Judge III (Senior Division) Dhradun illegally and without any authority and are trying to encroach upon the land described in schedule "B" detailed at the foot of the plaint." By way of proposed amendment, plaintiffs sought permission to delete the words "other than the land beneath the illegal constructions of defendant No. 1" and to substitute it by the words "land as detailed in the Schedule -B at the foot of the plaint".;

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