PANWAR, J. - (1.) THESE three appeal are directed against the common order dated 6. 8. 2002 passed in S. B. Civil Writ Petitions No. 2371/2002, 2372/2002 and 2374/2002 whereby the learned Single Judge dismissed the aforenoticed writ petitions. Writ petitioner Mangi Lal has challenged the order of the learned Single Judge in these appeals.
(2.) WE have heard learned counsel for the parties. Perused the order impugned. The facts of all the three appeals are identical and parties are common, therefore, for convenience, facts of D. B. Civil Special Appeal (Writ) No. 617/2002 arising out of S. B. Civil Writ Petition No. 2371/2002 are taken as leading case. Respondents Smt. Suki Bai, Smt. Lata, Vinod and Smt. Chandra Kumari (for convenience hereinafter referred to as `the plaintiff') filed four separate suits u/sec. 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as `the Act') seeking perpetual injunction against the appellant Mangi Lal and respondents No. 5 to 7 (for convenience referred to as `the defendants') in the Court of Assistant Collector, Sirohi (hereinafter referred to as `the trial court' ). Originally Mahesh Chandra S/o Indra Chand Bafna was khatedar of land in respect of Khasra No. 975/2 measuring 4 biswas, Khasra No. 974 measuring 7 biswas and Khasra No. 977 measuring 3 bighas and 2 biswas. Plaintiff Smt. Suki Bai purchased the aforementioned land from Mahesh Chandra by a registered sale deed dated 27. 3. 90. In the record of rights, the title of the land was recorded in the name of the plaintiff. The land was mutated in favour of the plaintiff by revenue authority vide transfer No. 187 dated 5. 11. 90. On being threatened to be dispossessed by the defendants, the plaintiff filed a suit u/sec. 188 of the Act for perpetual injunction on 30. 12. 93. Alongwith the suit, an application u/sec. 212 of the Act seeking temporary injunction for restraining the defendants from interfering with the possession of the land during the pendency of the suit, was filed. The defendants filed written statement on 3. 3. 94. Trial Court allowed the application filed by the plaintiff u/sec. 212 of the Act and passed temporary injunction and the defendants were restrained from interfering with the possession of the plaintiff. In the written statement the defendants pleaded that the suit land was jointly purchased by defendants Mangi Lal and Deepak Nathan, plaintiff Suki Bai and her husband Bastimal and averred that sum of Rs. 1,55,500/- were paid to Bastimal on 29. 3. 90 and took the possession of the land in question. It was further averred that one fourth of the holding came in the share of Mangi Lal, one fourth of the holding came in the share of Deepak Nathan and remaining half came in the share of the plaintiff Suki Bai, her son Vinod, daughter-in-law Chanda and Lata. The land stands registered in the name of the plaintiff, was not disputed. However, it was pleaded that the defendant Mangi Lal is in possession of the entire land in question. The defendant filed a counter claim and prayed for declaration of his title of one fourth of the land noticed above. The order of temporary injunction passed by the trial court was challenged by the defendant before the Revenue Appellate Authority. The Revenue Appellate Authority set aside the order of the trial court by observing that the defendants are in possession of the land in question. The plaintiff remained unsuccessful on further challenge before the Board of Revenue and this Court. The plaintiff sought amendment in the suit by filing an application under Order 6 Rule 17 C. P. C. claiming an alternative relief to the effect that due to the act of the defendant dated 26. 12. 93 and 28. 12. 93, if the court comes to the conclusion that the defendants are in possession of the land in question, then their possession is without permission of the plaintiff and is of as trespasser. Therefore, the defendants be ejected u/sec. 183 of the Act and they be further visited with 15 times penalty. The trial court dismissed the said amendment application filed by the plaintiff. On revision before the Board of Revenue, the Board of Revenue by order dated 5. 6. 2002 allowed the revision petition and set aside the order of the trial court dated 10. 7. 2002. The application filed by the plaintiff under Order 6 Rule 17 C. P. C. seeking amendment, was allowed. This order of the Board of Revenue was challenged by the defendant writ petitioner before this Court. After having considered the entire material, the learned Single Judge declined to interfere with the order of the Board of Revenue and dismissed the writ petition. It is contended by the learned counsel for the appellant defendant that the ambit and scope of the provisions of sections 183 and 188 of the Act are altogether different inasmuch as pleading of the plaintiff in the plaint and pleading sought to be added by way of amendment, are contradictory. In the original plaint, the petitioner sought the relief of perpetual injunction on the basis of title and possession whereas ultimately the defendants were found to be in possession of the land in question. It was further contended that amendment in the plaint is sought after about six years from filing of the original suit and, therefore, it was contended that the amendment sought in the plaint is prejudicial to the rights of the defendant. Mr. J. R. Beniwal, learned counsel for the plaintiff respondent contended that the suit land has been purchased by the plaintiff by a registered sale deed and in the record of rights of the revenue authority, the land in question has been recorded and mutated in favour of the plaintiff right from the date of purchase till date. It was further contended that during the pendency of the suit for perpetual injunction if the defendant trespassed over the land in question or part thereof, then the possession of the defendant is that of a trespasser and the plaintiff is entitled to amend the suit and to incorporate the alternative relief of possession/ejectment of the trespasser. He further contended that even otherwise the trial court by exercising the powers u/sec. 209 of the Act can pass an order of ejectment of the defendant after framing necessary issues and grant any relief which the court is competent to grant and to which it may find the plaintiff entitled notwithstanding that such plea may not have been asked for in the plaint or application. He has relief on a judgment of the apex Court in Bhura Mogiya and others vs. Satish Pagariya and others. (1 ). In that case, the suit was filed for declaration that the plaintiff- respondents are the recorded tenants and for injunction and alternatively, for possession of the land, if the plaintiffs were not found in possession. The Hon'ble Supreme Court held that it is true that Section 209 provides that in any suit on the application of the plaintiff the court after framing necessary issues may grant any relief which the court may deem fit and find the plaintiffs are entitled. In that case the issue before the Revenue Court was about the title of the parties. In the plaint, the plaintiffs have sought relief for ejectment of the defendants from the land in case they are not found in possession. The Board of Revenue found that the plaintiffs are entitled to be recorded as sah-khatedars. The plea of the plaintiffs being in possession having not been found correct the Court has invoked its jurisdiction under Section 209 of the Act and on these premises, the contentions raised by the appellant therein were rejected and appeal was dismissed.
(3.) IT is settled legal proposition that amendment in the pleadings may generally be allowed in case the amendment sought is necessary for the purpose of determining the real question in controversy between the parties. However, it should not cause injustice or prejudice to the other side. In Jayanti Roy vs. Dass Estate Pvt. Ltd. , (2), the Supreme Court observed as under :- " It is settled that amendments to pleadings which are moved at the proper stage and not unduly delayed should not normally be refused. In the application raising dispute on payment of rent under Sections 17 (2) and (2-A) of the Act the appellant has right from the beginning denied relationship of landlord and tenant between the parties. An amendment was moved stating that on discovery of additional evidence and material. Alamohan Dass was merely a "permissive occupier" in respect of one of the dags. The appellant also sought leave to explain the nature of her possession and occupation. There does not appear any material inconsistency between the original averments in the application and those proposed by amendment. " The Supreme Court in G. Nagamma & Ors. vs. Siromanamma & Anr. (3), has held that in an application under Order 6 Rule 17 C. P. C. , even an alternative relief can be sought. However, it should not change the cause of action or materially affect the relief claimed earlier. ;