- (1.) Since the abovementioned three revisional applications are interrelated to each other, all these three revisional applications were heard analogously. The plaintiffs application for amendment of plaint was partly allowed and partly rejected by the learned Trial Judge vide Order No.30 dated 15th February, 2007. Part of the order by which the plaintiffs prayer for amendment of plaint was disallowed by the learned Trial Judge is the subject matter of challenge in the civil revisional application being C.O. No.228 of 2008 which was filed by the plaintiff/petitioner herein. The part of the order by which the plaintiffs prayer for amendment of plaint was partly allowed is the subject matter of challenge in the civil revisional application being C.O. No.464 of 2008 which was filed by the defendant. The other revisional application being C.O. No.463 of 2008 is directed against an order being No.37 dated 29th January, 2008 by which the plaintiffs prayer for addition of party was allowed by the learned Trial Judge. The said revisional application was filed by the defendant. Let me first of all consider the merit of the revisional applications being C.O. No.228 of 2008 and C.O. No.464 of 2008 hereunder. Re: C.O. No.228 of 2008: Facts in brief
(2.) The plaintiff filed the said suit for declaration of his ownership in the suit property with the further declaration that the defendant has not acquired any right, title or interest therein. A relief by way of permanent injunction was also sought for therein for restraining the defendant including his men, agents, employees and associates from making any construction on the suit property by changing the nature and character thereof and further for restraining them from dispossessing the plaintiff from the suit property and/or from selling/ transferring/ encumbering/ alienating/assigning the suit property to any third party.
(3.) It was stated by the plaintiff in the plaint that originally the suit property belonged to Sushil Chandra Kayal who had executed a deed of settlement relating to his property for making provision for his wife during her lifetime with restriction on her power to sell, transfer or encumber the suit property in favour of any person. The plaintiff claimed his ownership in the suit property on the basis of the said deed of settlement as provision was also made for him in the said deed. It was further stated therein that since the wife of the settlor namely Nalini Bala has only life interest in the suit property and further since restriction was imposed on her power to transfer the suit property in the deed of settlement, the defendant cannot claim any right in the suit property by virtue of a socalled deed executed by the said Smt. Nalini Bala Kayal. Thus, the plaintiff claimed that since the defendant has not acquired any right, title and interest in suit property on the basis of any fake deed executed by Nalini Bala, the defendant should be restrained from raising any construction in the suit property. A reference of an earlier suit filed by one Kalyan Kumar (now deceased) against the said Nalini Bala Kayal and the plaintiff herein, concerning the rights of the parties in this suit property, was made in the plaint of the said suit. It was stated therein that the said suit was initially dismissed by the learned Trial Judge but the appeal preferred therefrom was ultimately disposed of by this Honble Court on compromise between the said Kalyan Kumar and Nalini Bala Kalyal with a rider that the suit stood dismissed as against Shyam Sundar Kayal, the plaintiff herein. It was further stated therein that the plaintiff herein challenged the said decree before the Honble Supreme Court by filing a special writ petition which was ultimately disposed of by the Honble Supreme Court with the finding that since the suit being Title Suit No.95 of 1979 was dismissed against the plaintiff herein, his right, title and interest in the suit property cannot be affected in any way. It was further stated therein that another suit being Title Suit No.51 of 1995 was filed by the plaintiff before the Court of the learned Civil Judge, Senior Division, 2nd Court at Howrah for declaration of the plaintiffs title in the suit property and the said suit is still pending. Since the defendant was trying to create a third party interest in the suit property and was also trying to raise construction on the suit property, the instant suit was filed on the basis of the cause of action as mentioned above.;