- (1.) THIS is a revision against an order of the learned Munsif, Bilara, dated the 10th of October, 1949.
(2.) THE petitioner claimed certain property on the allegition that one Bhursingh, son of Kishoresingh, was the last holder of that property, and on his death in Samwat 1991, the plaintiffs, as the nearest heirs, were entitled to the same. THE defendants denied Bhursingh to be the son of Kishoresingh, and inter alia alleged that the property belonged to Kishoresingh, and had been held by them in adverse possession since his death. It was also alleged that the defendants were the nearest heirs of Bhursingh. THE plaintiff sought amendment of the plaint to the effect that Bhursingh was the adopted son of Kishoresingh and that in the alternative they were entitled to the property as heirs of Kishoresingh. THE trial Court, after arguments, dismissed the petition for amendment, against which order the present application is directed. So far as the first portion of the amendment application is concerned, it is only formal, since this can be deemed to be only a better and fuller statement of the claim already made. Bhursingh was already shown to be a son of Kishoresingh, and only a statement of the plaintiffs that he was the adopted son was sufficient. The amendment of the plaint was only a formal matter and unnecessary. As regards the second point, I am inclined to agree with the trial court that it would raise a new and inconsistent case. The present claim is based on the plaintiffs being the heirs of Bhursingh who has been described as the last holder of the property, and the cause of action has been shown to have arisen, truely speaking, on his death, but according to the plaint, when a certain mortgage of the property made by Bhursingh had been extinguished by expiry of time. The amendment, sought, introduces a wholly different cause of action. It would, in the first place, amount to a denial of the entire set up of the present plaint, namely, that Bhursingh was the last holder of the property and, in the second place, it would take back the cause of action at a point of time when Kishoresingh died. While in the suit, as framed, the only enquiry relevant to the case would be as to who were the heirs of Bhursingh on his death, the enquiry to be made in the case of amended relief would be as to who were the heirs of Kishoresingh on his death. It is not stated in the plaint when Kishoresingh died, or who were the nearest heirs at that time. While agreeing wi:h the learned advocate for the petitioners that the power of amendment should be liberally exercised yet, as held by their Lordships of the Privy Council in Ma Shw Mya Vs Maung Mo Hnaung (1 A. I. R. 1922 P. C. 249) where after the observation relied upon by the learned advocate for the plaintiffs, it has been observed further that "none-the-less no power has been given to enable one distinct cause of action to be substituted for another, nor a charge, by amendment, the subject matter of the suit". In my opinion, the amendment suffers from the defect pointed by their Lord-ships of the Privy Council,and the order of the lower court rejecting the plaint is quite correct. This revision petition fails and is dismissed with costs , .;