P.K.Ray, J. - (1.) This Revisional Application has been filed by defendant No. 2 of Title suit No. 268 of 1988, challenging the order dated 15th January, 1991 passed by learned Court of the 6th Munsif at Howrah whereby the petition under Order 6 Rule 17 of the Code of Civil Procedure filed by the plaintiff seeking amendment of plaint and the prayer portion was allowed. Suit was filed by the plaintiff praying decree of declaration of passage as discribed in the schedule, decree of permanent injunction restraining the defendants. Temporary injunction against the defendants restraining from disposing or transferring to the suit poverty to private passage to 3rd party also was prayed. For adjudication of the matter, it is necessary to consider the plaint also. In the plaint, in paragraph 17, plaintiff has submitted the following: "That the facts and circumstances of the case plaintiff is entitled to a decreed declaring that the plaintiff has a right, title and interest and to a decree of declaration of the private passage and permanent injunction from interfering with the possession is lawfully terminated." In paragraph 5 and 6, plaintiffs stated as follows: "That the plaintiff states that the address of the private passage is 15/1/1 (15 after amendment), Prassanna Kumar Dutta Lane, Howrah. That the plaintiff purchased the holding No. 15, Prassanna Kumar Dutta Lane and completed the construction of the house in 1960 in support of a plan duly sanctioned by the Municipality and the members of her family have been living in their said house peacefully, 1960 and without any hitch from any quarter."
(2.) Written statement was filed denying the plaintiffs title over the passage. The parties led evidence and the evidence of the parties has been closed by examination and cross-examination of the witness and the matter was fixed for argument. At this juncture, plaintiffs filed the said application for amendment praying the following amendments in the plaint and prayer: "(a) After the concluded portion of paragraph No. 3 of the plaint the following facts be added; "The said 6' ft. wide private passage on the north of holding No. 15 Prassanna Kumar Dutta Lane exclusively belongs to the plaintiff which is quite apparent from the Municipal record at the time of hearing." (b) After the concluded portion of paragraph No. 17 the following sentences be added. "It is further stated that in the event if it is found that the plaintiffs is not the exclusive owner of the said 6'ft, wide private passage being holding No 15/1/1 Prassanna Kumar Dutta lane, Shibpur, Howrah the plaintiff alternatively claims for a decree for declaration that the plaintiff has easement right over the said 6'ft. wide passage." (c) After the concluded portion of prayer (a) the following words be added: "Alternatively the plaintiff claims declaration that she has easement right over the said 6'ft. wide passage." (d) In the prayer portion after the prayer 'd' a new prayer viz. prayer 'e' be written as such: (e) A decree for information of possession of the plaintiff in respect of the said 6'ft. wide passage."
(3.) The learned Court below allowed such amendment by directing payment of cost to the defendants. Defendants are aggrieved by such amendment and have come up in the revisional application. It is submitted by the learned Advocate of the petitioner that by the said amendment, plaintiff has been allowed to take inconsistent plea, in one breath the right to passage as owner, in other breath of the easement right over the said passage. It is submitted by the learned Advocate of the petitioner that both cannot co-exist. Though it is a settle legal proposition that in the matter of amendment of the plaint and/or written statement, the Court will consider it liberally to avoid the multiplicity of any proceeding. It has been further settled that the conflicting please can be taken so long such is not in the form of withdrawal of admission as earlier made. For consideration of this aspect of the matter whether the impugned order can be sustained and the learned Court below acted with illegality, the concerned Easement Act 1882 is relevant for reference. Section 4 of the said Easement Act is quoted in extenso for appreciation of the matter: "Section 4. 'Easement' defined.-An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. Dominant and servient heritages and owners The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation.- In the first and second clauses of his section, the expression ' land' includes also things permanently attached to the earth, the expression 'beneficial enjoyment' includes also possible convenience, remote advantage and even a mere amenity; and the expression 'to do something' includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.";