Mohammad Rafiq, J. - (1.) THIS second appeal has been placed on the board for orders on the application filed by the plaintiff -appellants under Order 6 Rule 17 of the Code of Civil procedure for amendment in the plaint. Plaintiff -appellants originally filed a suit on 20.08.1977 for perpetual injunction against defendants with a prayer that they may be restrained from dispossessing the appellants with a direction not to create any hindrance in the construction being raised by the plaintiff -appellants. After full -fledged trial, the Court of Civil Judge (Junior Division) North, Kota, vide judgment and decree dated 15.12.2008 dismissed the suit holding that the disputed land of Khasra No. 17 is entered in the name of Indian Army and that the plaintiffs have encroached upon a part of the land of aforesaid Khasra. Aggrieved thereby, the plaintiffs filed first appeal before the Additional District Judge No. 4, Kota, who, vide judgment and decree dated 10.10.2011, dismissed the appeal and affirmed the judgment of the learned Court below.
(2.) ACCORDING to the plaintiffs -appellants, their predecessor -in -title Madan Lal had purchased plot in dispute from Panchayat, Khandgawadi vide allotment letter dated 22.06.1958. Madan Lal was put in possession of the land in dispute by Gram Panchayat. Thereafter, Madan Lal vide registered sale -deed dated 26.04.1971 sold that plot to Om Singh Jain, who obtained permission to raise construction from Municipal Board and thereafter he further sold the said plot to Smt. Chandra Bai vide registered sale -deed dated 14.03.1972 and thereafter Chandra Bai, vide registered sale -deed dated 12.07.1974 sold the same plot to the plaintiff -appellants. When the plaintiff -appellants constructed a two -storied house on the said land, a notice was issued to him by the defendant No. 3 to vacate the premise in the year 1977, which is why he filed suit for injunction. The plaintiff -appellants now in the present application sought amendment in the plaint to insert the plea of adverse possession asserting that they being in uninterrupted possession of the disputed property for more than twelve years, became owner and their title was perfected by virtue of adverse possession and a decree declaring them the owner of the disputed land be passed.
(3.) SHRI M.M. Ranjan, learned senior counsel for the plaintiffs -appellants, has submitted that the delay by itself may not be a reason to decline the amendment prayed for because other necessary pleadings as also evidence are already there. It was due to aforesaid that in the original suit filed by them with the prayer of injunction. Possession of the plaintiffs was throughout was peaceful and continuous and hostile to every one including the respondents. The plaintiffs raised the construction in full knowledge of the defendant with the due permission of the Municipal Board. The defendants failed to take any action against the plaintiffs and for that reason, their predecessor in title for last more than twenty years. The title of the appellants was perfected by prescription and by virtue of adverse possession. Learned senior counsel for the plaintiffs -appellants, in support of his arguments, cited the judgments of the Supreme Court in Sampath Kumar vs. Ayyakannu & Anr., : AIR 2002 SC 3369 and Gurdial Singh & Ors. Vs. Raj Kumar Aneja & Ors., : AIR 2002 SC 1003 and contended that the amendment as prayed for be allowed in the interest of justice.;