CRP 189/2010 BEFORE HON BLE MR. JUSTICE AMITAVA ROY Heard Mr GN Sahewalla, learned senior counsel for the petitioner and Mr RP Kakot i, learned senior counsel for the Respondents. The petitioner had instituted Title Suit No.41/2000 in the court of the learned Civil Judge(Senior Division), Sibsagar against the Opposite party and o ne Sheikh Sariful Hussain and others arrayed as proforma defendant Nos 6 to 12 seeking a decree inter alia for khas possession of the part of the suit land to be ascertained by issuing a Survey Commission contending that the opposite party/defendants had illegally extended their katcha house thereon. The suit lan d was described to be measuring 1 katha 13 lechas out of 2 bighas and contained in Dag No.610, Period Patta No.78 situated at the location as described in Sche dule-A to the plaint. The petitioner asserted amongst others in the plaint that on the basis of a par tition amongst the parties, he was allotted 1 katha 13 lechas of land described i.e. the suit land and that the other co-sharers were also entitled to separate units of the same area. According to him, the opposite party trespassed into hi s share of the land by extending their hutments gradually with time. The opposit e party in their written statement denied the allegation. During the pendency of the suit on the prayer made on behalf of the petitioner, a writ of survey of the suit land was issued by the learned trial court, then M unsiff No.1 at Sibsagar with the direction to the Commissioner to ascertain the actual area occupied by the defendants (Opposite party herein) on the land de scribed in the schedule to the plaint. The Commissioner was directed to ascerta in and measure the suit land described in the Schedule and to ascertain the area encroached /occupied by defendants(Opposite party herein) on the suit land. Ac cordingly, the survey was conducted in presence of the parties and the Commis sioner submitted his report on 19.6.2008 to the effect that the opposite par ty were found in possession of 18 lechas of land and the petitioner plaintiff in 15 lechas of land out of the suit land measuring 1 katha 13 lechas describe d in Schedule-A to the plaint. The petitioner thereafter filed an application under Order 6 Rule 17 of the Code of Civil Procedure( for short, hereafter referred to as the ’Code’) re ad with section 151 praying for amendment of the plaint inter alia to incorpora te the averments bearing on the survey commission conducted and also the prayer for decreeing the suit for khas possession of the encroached portion of the s uit land described in Schedule A to the plaint. The petitioner described the lan d measuring 18 kathas in Schedule-A (1) of the application for amendment. A written objection was filed by the opposite party stating inter alia that the application was unsustainable on the ground of undue delay and also t hat if the prayer for amendment is allowed, it would alter the nature and char acter of the suit. By the impugned order, the objection was sustained. The learned counsel for the parties have reiterated their pleaded stands . On a consideration of the pleadings on record, more particularly and the relief sought for in the plaint and the report of the Survey Commissioner, I am of the view that no interference is called for. However, as the observation s made in the impugned order, in my estimate, having regard to the stage of th e suit, if allowed to sustain, may have the potential of pre determination ther eof, it is considered appropriate to close this petition with a request to the learned trial court to dispose of the suit on merits without in any way being influenced thereby (the observations/reasons recorded by it) in the order impu gned. Ordered accordingly. Send down the LCRs immediately.