Partly allowed

Rajesh Mohapatra v. Sail,Rourkela

Orissa HC11 Aug 2021WP(C)/24175/2012

Case brief

AI extract

What is this about?

Writ petition filed to challenge a trial court order rejecting an amendment to a suit claiming title by adverse possession. Court held amendment changes suit nature but allowed partial amendment to a specific line.

What did the court decide?

Rejection of amendment application upheld; amendment to line No.6 of paragraph-16 at Clause-J of schedule allowed; plaint to be filed within three weeks.

Rajesh Mohapatra Vs Sail,Rourkela — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 24175 OF 2012

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Rajesh Mohapatra

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…. Petitioner

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Mr. Jaydeep Pal, Advocate

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versus-

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SAIL, Rourkela & another

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…. Opp. Parties Mr. N.K. Sahu, Advocate

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

11.08.2021

This matter is taken up through hybrid mode.

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This writ petition has been filed assailing the order dated 02.02.2011 (Annexure-2) passed by learned Civil Judge (Senior Division), Rourkela in Title Suit No.1 of 2001 rejecting an application filed by the Plaintiff-Petitioner under Order VI Rule17 CPC.

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Mr. Pal, learned counsel for the Petitioner submits that originally the suit was filed claiming possessory right over the suit shop room. Subsequently, by filing an application for amendment, the Plaintiff-Petitioner sought to incorporate the pleadings to the effect that:-

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“Thus the possession of the vendor of the plaintiff was peaceful, physical, continuous, uninterrupted and well in the knowledge of the defendants and such possession of the vendor being not objected can be treated as the defendants have got no right over the same, for which no objection was raised at any point of time. Thus, the possession of the vendor was

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tacked with the possession of the plaintiff after its purchase. Thus, the plaintiff has perfected his right, title otherwise also by way of prescription.” (C) In SI. No.(i) of prayer portion , the following

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may be added after the word “said shop”

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“or in the alternative the plaintiff is in settled possession of the suit shop.”

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Mr. Pal, learned counsel for the Petitioner further submits that the Plaintiff-Petitioner cannot have better title than his vendor. Since the vendor of the Petitioner was the tenant under the Opposite Parties, he has only claimed possessory right over the suit shop room. Since the possession of the PlaintiffPetitioner was continuous, peaceful and it was never objected by the true owner having knowledge of such possession, he had sought for incorporation of the aforesaid pleading and consequently the alternative prayer. It is his submission that by incorporating such amendment, nature and character of the suit will not change. Learned Civil Judge erroneously holding that the Plaintiff-Petitioner is claiming title by way of adverse possession, rejected the petition. Hence, this writ petition has been filed.

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Mr. Sahu, learned counsel for the Opposite Parties submits that the original claim of the Petitioner was possessory right over the shop room. As such, claim of title by incorporating the proposed amendment will certainly change the nature and character of the suit. As such, the same is not permissible under law. Thus, learned trial court has committed no error in refusing such amendment.

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Upon hearing learned counsel for the parties, this Court finds that the Plaintiff-Petitioner originally claimed his

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possessory right over the shop room. But, subsequently, by way of proposed amendment, he claimed his right and title by prescription. Thus, it changes the nature and character of the suit. Accordingly, learned trial court has committed no error in refusing such amendment. However, the amendment of line No.6 of paragraph-16 at Clause-J of the schedule of proposed amendment should be allowed.

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Consolidated plaint incorporating the amendment to the extent allowed by this Court shall be filed within a period of three weeks hence, as undertaken, along with certified copy of this order. Since the suit is of the year, 2001, learned Civil Judge (Senior Division), Rourkela shall make an endeavour to proceed with the matter expeditiously, if there is no other legal impediment. Parties are directed to co-operate with the Court for expeditious disposal of the suit.

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This writ petition is disposed of accordingly.

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Interim order dated 20.12.2012 passed in Misc. Case No. 21084 of 2012 stands vacated.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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bct

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Rajesh Mohapatra v. Sail,Rourkela

Case brief

What is this about?

What did the court decide?

Rajesh Mohapatra v. Sail,Rourkela

Case brief

What is this about?

What did the court decide?

What the court decided

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