Sunil Kumar Parakh vs Kartick Kumar Ghosh & Anr
2021 Latest Caselaw 5679 Cal

16.11.2021
 Ct. No.15
  Sl. No.27
 akd/PA
                                         S.A. 44 of 2021      [via video conference]


                                        Sunil Kumar Parakh
                                                -Vs-
                                    Kartick Kumar Ghosh & Anr.


                                 Mr. Rahul Karmakar
                                 Ms. Sudeshna Basu Thakur
                                                    ... ... for the appellant

                                 Ms. Somjukta Das
                                                        ... ... for the respondents

The appeal is directed against judgment and order dated

27th February, 2019 passed by the learned Additional District

Judge, 4th Court, Suri, Birbhum in Title Appeal No.79 of 2016

whereby the appellate court dismissed an application for

amendment of the plaint under Order VI Rule 17 of the Code of

Civil Procedure as well as the title appeal and upheld the

judgement and decree dismissing the suit preferred by the

appellant-plaintiff.

Appellant-plaintiff herein had preferred a suit against the

defendant-respondent, inter alia, praying for the following

reliefs:-

i) to pass decree for permanent injunction restraining the defendant no.1 and his men and agents from interfering with the peaceful possession of the plaintiff and his family members below schedule properties by making any sort of construction of chala ghar more than his due share and to land lock the plaintiff with an intention to dispossess him and his other family members unlawfully upon any portion of the below schedule properties may be passed in favour of the plaintiff and against the defendant no.1.

                          ii)      Cost
                          iii)     Other relief or reliefs.

The plaintiff's case in the plaint was to the effect that by a

registered sale deed the plaintiff along with his mother and

brother had transferred some portions of land on the eastern

side of the suit plots i.e. 2471 sq. ft. in suit plot No. 1558 and

1920 sq. ft. in suit plot No.1418/1800 in favour of the defendant.

The defendant by show of muscle and man power was trying to

construct a tin shed (chala ghar) over a passage in the suit plots

in excess of his share and was thereby trying to dispossess the

plaintiff from the suit land.

The defendant contested the said suit, inter alia, claiming

after purchase of a portion of the suit property with specific

demarcations, he had constructed a dwelling house thereon and

a tin shed (chala ghar) for keeping cows in the gap on the

western side of his dwelling house and was in possession of

such portion since Baisakh 1400 BS. i.e. April, 1993 with the

knowledge of the plaintiff and other co-sharers. He claimed

adverse possession in respect of the passage on which the tin

shed (chala ghar) has been constructed.

The trial court upon considering the case of the parties

came to a finding that the defendant was in possession of the

passage and a tin shed (chala ghar) had been constructed

thereon. However, in view of the fact that the area of the

passage in question was not properly demarcated and all the co-

sharers were not parties to the suit, held no finding of adverse

possession can be returned in the defendant's favour. However,

the trial court dismissed the suit holding that the suit of the

plaintiff was not maintainable as he had sought for an injunction

in respect of the entire suit plot being plot Nos. 1558 and

1418/1800 though admittedly the defendant was a lawful owner

and in possession of certain portions of the said plots. The court

further held that the plaintiff was not in possession of the vacant

space in the suit plots where the tin shed (chala ghar) had been

constructed and a prayer for injunction simplicitor was not

maintainable in view of Section 34 of the Specific Relief Act.

An appeal was preferred by the plaintiff-appellant against

the aforesaid judgement and decree. During the pendency of the

appeal, an application for amendment of the plaint was sought

for pleading as follows :-

"That the schedule of the plaint of said suit has not been properly mentioned and the entrance gate of the appellant/plaintiff in the North-east side of their house was blocked by the respondent/defendant no.1 by making concrete chatal of about 2' fts high over the non suited plot no. 1788 and the respondent/defendant no.1 forcibly made a tin shed chalaghar over the Eastern side boundary wall and also vacant space beside said boundary wall of the appellant/plaintiff's family which kept for their future maintenance of building and panipatan etc. during the pendency of said suit but these facts was not unfortunately mentioned by the plaintiff/appellant in the plaint of said suit."

Prayer of the plaint was also sought to be amended in the

following terms as follows :-

" (i) (a) to pass a decree for mandatory injunction directing the defendant no.1 to demolish the Tin shed chalaghar for B schedule suit property described in the schedule B below of the plaint and also removed the concrete chatal blocking North- eastern side entrance gate of the plaintiff's family members to ingress and egress with same otherwise the plaintiff may be permitted to demolish and remove the same."

The appellate court held that the prayer for mandatory

injunction of the removal of the tin shed (chala ghar) as well as a

concrete chatal blocking the entrance gate of the appellant-

plaintiff in the north eastern side of their house would change the

nature and character of the suit and was impermissible at the

appellate stage. Having denied such relief, the appellate court

also dismissed the appeal upholding the judgment of the trial

court.

Learned counsel appearing for the appellant submits that

the appellate court erred in law in holding that it did not have

power to permit amendment of the plaint. He also submitted that

the amendment seeking mandatory injunction would not have

changed the nature and character of the suit at all.

We have considered the submissions of the learned

counsel of the appellant in the light of the materials on record.

The plaintiff had instituted the suit, inter alia, alleging

apprehension of dispossession by the defendant who was trying

to build a tin shed (chala ghar) on a passage in the suit property.

Admittedly, the plaintiff had sold portions of the suit plot

Nos.1558 and 1418/1800 to the defendant who was occupying

portions of the suit plot. The defendant claimed that he was in

possession of the vacant space and constructed the tin shed

(chala ghar) for keeping cattle in the year 1993. Deposition of

DW1 on this score has remained unchallenged. In view of the

fact that the defendant was lawful owner and in possession of

the portion of the suit plot, trial court held that the prayer seeking

injunction against the defendant from disturbing the possession

of the appellant-plaintiff in respect of the entire suit plot was not

maintainable. The Court further held as the defendant was in

possession of the vacant passage wherein the tin shed (chala

ghar) was constructed, and a suit for injunction without seeking

recovery of possession was not maintainable in law. The

aforesaid findings are clearly unimpeachable in nature.

Faced with such a situation a prayer was made to amend

the plaint at the appellate stage. The amendments sought to be

made appear to change the nature and character of the suit. The

suit had been instituted on an apprehension that the defendant

was trying to dispossess the appellant-plaintiff from the suit

property by attempting to construct a tin shed (chala ghar) over a

vacant passage in the suit plots.

In this backdrop, a decree of permanent injunction had

been prayed restraining the defendant from interfering with the

possession of the appellant-plaintiff in the suit property.

Amendments sought to be incorporated not only relates to a tin

shed (chala ghar) but also a concrete structure blocking the

north eastern side of the eastern gate of the plaintiff's house.

The appellant sought amendment of the prayer in the suit

property for a decree of mandatory injunction for demolition of

the said structures.

A plain reading of the proposed amendments show not

only the scope and ambit of the plaint of the suit was sought to

be enlarged but the relief was substantially altered from one

seeking protection from dispossession to a completely different

one, namely, removal of alleged illegal constructions on the suit

plot. The authorities relied upon by the appellant are inapposite.

In (1985) 2 SCC 332 (Sant Lal Jain vs. Avtar Singh) the apex

court, inter alia, held that relief against a licensee upon

termination of licence cannot be denied merely because a

mandatory injunction to vacate the premises was sought in place

of ejectment.

In the present case the crux of the pleadings in the plaint

and the relief are sought to be altered by proposed

amendments. There was no pleading in the plaint with regard to

the concrete chatal blocking the north-eastern portion of the

house of the plaintiff. Prayer for mandatory injunction

demolishing/removing the structures is substantially different

from the relief sought in the plaint. In the cited report prayer for

mandatory injunction to vacate the premises had been prayed

for instead of eviction. The Apex Court held both the prayers are

similar which is not the situation in the present case.

Learned counsel has also relied on an unreported

decision of this court in S.A. 176 of 2008 (Rabi Sankar Dutta &

Ors. vs. Bijoy Krishna Seva Samity & Anr.) wherein at the

second appellate stage this court had remanded the matter

enabling the appellant to pray for recovery of possession of suit

property against an illegal occupant. The present case is quite

different. In the cited case the plaintiff had in fact sought

amendment of the plaint for mandatory injunction during the trial

of the suit. In this backdrop the matter was remanded in the

appellate stage for reconsidering the prayer of the plaintiff for

recovery of possession which is a relief in the same species.

In view of the aforesaid discussion, we are of the opinion

no substantial question of law arises for admission of this

appeal.

The appeal is accordingly dismissed.

There shall be no order as to costs.

Urgent xerox certified copy this judgement, if applied for,

be supplied to the parties on usual undertaking.

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)