Ashoke Kumar Dasadhikari, J. - (1.) Order impugned dated 25th January, 2011 passed by the learned Civil Judge (Senior Division), 3rd Court, Howrah in Title Appeal No. 177 of 2007 allowing the application of the appellant/defendant in the original suit, under Order 6 Rule 17 read with Sec. 151 of the Code of Civil Procedure is under challenge in this revisional application.
(2.) The petitioner being the plaintiff in the suit and respondent in Title Appeal filed a suit being Title Suite No. 244 of 1981 before the Civil Judge (Junior Division) 1st Court, Howrah, against the opposite party No. 1/defendant for a declaration that the petitioner/plaintiff has absolute right and the opposite party No. 1 herein being the defendant in the main suit has no right in respect of plot No. 1524 and sale of 5 sataks from Plot No. 1524 to opposite party/defendant No. 2 by deed dated 9th March, 1981 be declared illegal, void and inoperative and not binding upon the petitioner/plaintiff. A further prayer was made for a decree for confirmation of possession in favour of petitioner/plaintiff and recovery of possession of 5 sataks from defendant No. 2 out of plot No. 1524. A decree for permanent injunction restraining the defendant from interfering with the absolute right of the petitioner/plaintiff in respect of the suit property and causing any disturbance and/or making any attempt of change the nature and character of the suit property in any manner whatsoever and for mandatory injunction against opposite party/defendant No. 2 for dismantling the unauthorised and illegal structure raised on the basis of purchased deed of 9th March, 1981, and decree for damages etc. Plaint was subsequently amended. Suit was contested by the defendants by filing separate written statements. Suit was decreed on 31st July, 2007 in favour of the petitioner/plaintiff thereby declaring him the absolute owner of the suit property and defendant No. 1 was directed to refrain from interfering with the absolute right of the petitioner/plaintiff in respect of property in question, amongst others. So far 5 sataks land is concerned, the learned Trial Court did not grant any decree in favour of the plaintiff.
(3.) Defendant/opposite party No. 1 being aggrieved and dissatisfied with the judgment and decree, preferred an appeal being Title Appeal No. 177 of 2007 before the learned Civil Judge (Senior Division), 3rd Court at Howrah. The appellant/opposite party No. 1 herein filed an application for amendment of written statement on 9th February, 2010. Appellant/opposite party No. 1 wanted to amend the written statement in terms of the schedule contained in his application. By the proposed amendment the opposite party No. 1 intended to claim a right of direct tenancy under the State of West Bengal by virtue of a patta in respect of plot No. 1525 under Mouza -Bally given by the then zamindar Jogesh Chandra Mukhopadhyay and, on that basis, he claimed absolute ownership. It was also proposed in the amendment application that actually the aforementioned property belonged to Jogesh Chandra Mukhopadhyay and Gopal Patra had no right, title and interest in respect of the suit property and in respect of other properties as mentioned in the said deed. But due to ignorance about the existence of exhibit No. 1, the opposite party No. 1 could not aver such fact and, therefore, such fact is required to be incorporated in the written statement by way of amendment for the purpose of determination of the real question in controversy. The opposite party No. 1 also contended that Gopal Patra has no right, title and interest over the property and, as such, petitioner/plaintiff could not acquire any right, title and interest on the basis of deed executed by Gopal Patra. It was also contended that in the year 1951 petitioner/plaintiff had no independent source of income. He was a minor at that point of time. It was further contended that the original deeds and documents and other materials which were in the custody of the mother of the petitioner/plaintiff, were taken away by the appellant/opposite party No. 1 in a very tricky manner by exercising undue influence upon the mother of the petitioner/plaintiff. According to appellant/defendant No. 1 in the Title Suit, such facts are required to be incorporated in the written statement by way of amendment for the purpose of determination of the real question in controversy.;