IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1592 of 2006 1. SMT.MEENA DEVI, WIFE OF SRI INDRA NARAYAN GUPTA 2. ABHISHEK KUMAR SONI, SON OF SRI INDRA NARAYAN GUPTA, BOTH RESIDENTS OF MOHALLA MILKI TOLA BARHAMAN TOLI GOPAL CHAK, P.O. ARRAH, P.S. ARRAH [TOWN], DISTRICT BHOJPUR….. PLAINTIFFS- PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, BHOJPUR 2. DISTRICT EDUCATION OFFICER, BHOJPUR 3. AMIR CHAND AGRAWAL GIRLS HIGH SCHOOL, JAIL ROAD, P.S. ARRAH [T], DISTRICT BHOJPUR THROUGH ITS PRINCIPAL……… DEFENDANTS-OPPOSITE PARTIES. ----------- 3. 21.04.2009 Heard learned counsel for the petitioners and learned counsel or the opposite parties. This civil revision application has been filed by the plaintiffs-petitioners against the order dated 3.8.2006 passed by the Subordinate Judge VI, Arrah in Title Suit No.61 of 2003. By the said order, the learned Subordinate Judge has rejected the petition of the plaintiffs filed under Order 6 Rules 17 of the Code of Civil Procedure for amendment in the plaint and for permission to pay ad valorem court fees in the light of the proposed amendment. By the said order, the court below has rejected the petition on the ground that the amendment sought for by the plaintiffs was 2 barred by limitation as encroachment on the land in dispute was made more than three years earlier and relief sought for by way of amendment through the petition dated 24.5.2006 was barred by limitation. Learned counsel for the petitioners has submitted that the learned court below has rejected the petition in confusion in respect of the relief prayed in the suit and the relief sought to be inserted in the plaint by the amendment. He has submitted that the suit was filed for declaration of title and for grant of injunction against the defendants from making any construction on a portion of the suit property. He has pointed out that a sketch map was appended with the plaint from which it appears that the suit property was marked as ABCO. He submits that out of this suit property, an area marked in sketch map as EFGH had already been encroached upon by the defendants and they had put constructions on the same. In respect of the said encroachment, it was specifically pleaded in paragraph 6 of the plaint that the plaintiffs reserved their right to file a separate suit for removal of the same and for recovery of possession of the 3 suit land. Learned counsel for the petitioners submits that in fact, other suit has already been filed by the plaintiffs in respect of that area, namely, Title Suit No. 483 of 2003. He further submits that in paragraph 8 of the plaint, specific pleading has been made that another area of the said plot marked as LMNB in the sketch map was also threatened to be encroached by the defendants and the defendants were trying to make some construction over the same. It has been mentioned in the said paragraph that the plaintiffs requested defendant no.3 not to encroach upon that portion of the plot but he was not in mood to hear anything rather he claimed the entire disputed land. In the background of this pleading, relief no.2 was sought for in the plaint for restraining the defendants from making any construction on the disputed land shown in the sketch map as LMNB and in red colour. Learned counsel for the petitioners further submits that during the pendency of the suit, the defendants, in fact, made constructions over the said area of LMNB for which they got the pleader commissioner appointed for submission of the report with 4 regard to physical feature of the said plot. The pleader commissioner inspected the plot and submitted his report on 31.2.2005 confirming that in fact, the defendants had made construction over the said portion of the plot marked as LMNB in the sketch map in the plaint. In view of the construction made by the defendants on the area of the plot during the pendency of the suit and in view of its confirmation by the pleader commissioner in his report, the plaintiffs filed the amendment application for inserting a relief in the relief portion of the plaint with a prayer for recovery of possession after ejectment of the defendants from the said part of the suit plot. For the purpose, the plaintiffs also proposed to pay ad valorem court fee on this relief for recovery of possession for which necessary amendment was sought for. Learned counsel for the petitioners submits that although it was specifically mentioned in the amendment, area marked as LMNB in the sketch map had been encroached upon by the defendants during the pendnecy of the suit by constructing over it, the court below got confused with regard to the encroachment already made by the defendants on 5 the area of the plot marked as EFGH in the said sketch map with the plaint for which they have already filed a separate suit. Learned counsel for the opposite parties submits that since the encroachment alleged by the plaintiffs in the plaint was made much earlier, relief sought for removal of the same and recovery of possession through the amendment petition was clearly time barred and, therefore, the learned court below has rightly rejected the petition of the plaintiffs. To consider the specific prayer made by the plaintiffs in their amendment application and legal effect of the same and as to whether relief of recovery of possession was barred by limitation or not, this Court has looked into the pleadings made by the plaintiffs in the plaint. From the pleadings made in the plaint it is clear that the plaintiffs had admitted encroachment on the portion of the land marked as EFGH whereas on the portion of the plot marked as LMNB they have pleaded that the defendants were trying to make construction over the same and request was made by plaintiffs to the court to restrain them from disturbing their possession over it. There was 6 nothing in the plaint to show nor learned counsel for the opposite parties has been able to demonstrate that any encroachment or construction over the portion of the plot marked as LMNB in the sketch map has already been made prior to filing of the suit. On the other hand, the statements made by the plaintiffs in the revision application and the copy of the amendment application annexed with the civil revision application, prima facie, show that constructions were made by the defendants on the portion of the suit land marked as LMNB and in red colour during the pendency of the suit. Hence, any relief sought for removal of the encroachment and for recovery of possession of the said portion of the plot with ejectment of the defendants was clearly within the period of limitation for the said relief. With the relief of recovery of possession, other relief was sought for to be amended in the plaint for removal of the construction over the said portion of the land marked as LMNB from the suit plot made during the pendency of the suit. In the circumstances, this Court is of the view that the learned court below has 7 committed material irregularity in rejecting the petition of the plaintiffs filed under Order 6 Rule 17 of the C.P.C. for amendment of their plaint in view of the subsequent developments in the suit. As a result, this application is allowed. The impugned order dated 3.8.2006 is set aside. The court below is directed to allow the petition of the plaintiffs dated 24.5.2006 for amendment of the plaint and permit them to file an amended plaint in the suit in accordance with law. It goes without saying that after receipt of the copy of the amended plaint, the defendants shall be at liberty to file an additional written statement. B.T. (J. N. Singh, J.)