( 1 ) :- This appeal is preferred against the judgment and decree dated 28-03-1990 passed by the learned XIX Additional City Civil Judge, Bangalore City in O. S. No. 1869/1985.

( 2 ) THE appeal is admitted. The records are received. The respondent is represented through a counsel. As the appeal lies in a narrow compass, production of paper books is dispensed with and it is heard for final disposal.

( 3 ) THE appellants are the plaintiffs and the respondent is the defendant.

( 4 ) THE suit was filed for a permanent injunction and also for a mandatory injunction directing the defendant - Corporation - to deviate the road running across and through the suit schedule property.

( 5 ) THE trial Court has dismissed the suit. It has refused permanent injunction on the ground that prior to the date of filing of the suit, the encroachment had taken place and as such the plaintiffs were not in possession on the date of the suit. Mandatory injunction has been refused on the ground that the road for public purpose is formed; that the plaintiff can be compensated, therefore, it is not proper to grant mandatory injunction.

( 6 ) THE case of the plaintiffs is that the Corporation has formed a road on the suit plot which belongs to them without acquisition. The Corporation disputes the title of the plaintiffs to the suit plot.

( 7 ) IN this appeal, there is an application filed by the plaintiffs seeking amendment to the plaint. The plaintiffs have prayed in the application that they be permitted to amend the plaint so as to add a prayer for awarding damages of Rs. two lakhs. The reason given in the affidavit filed in support of the application sworn to by the 8th appellant is that by inadvertence the relief for damages was not sought in addition to the relief of permanent injunction. The defendant-respondent has filed the objections. The main objection of the defendant is that as on the date of filing of the application i. e. , 27-11-1991 seeking amendment to the plaint, the relief for damages is barred by time therefore, if an amendment is allowed it will relate back to the date of filing of the suit as such the defendant will be put to irreparable loss which cannot at all be compensated.

( 8 ) THEREFORE, the following points arise for consideration:1) Whether it is just and necessary to allow the amendment of the plaint sought for in the appeal? 2) If Point No. 1 is answered in the affirmative, whether the judgment and decree of the trial Court are liable to be set aside and the case has to be remanded to the trial Court? point NO. 1

( 9 ) IT is relevant to notice that the case of the plaintiffs is that the land on which the road in question is formed belongs to them and it is not acquired by the Corporation and no compensation has been paid. The plaintiffs are not consenting parties to it. If it is proved that the land on which the road in question has been formed belongs to the plaintiffs, as a necessary corollary, the act of the Corporation would be without the authority of law. The trial Court has not gone into the question of title because the suit was for permanent and mandatory injunctions and as already pointed out, one of the reasons given by it for dismissing the suit is that the proper remedy is to seek damages or compensation. As the corporation is a 'state' within the meaning of Art. 12 of the Constitution, it cannot take away private property without recourse to law and without paying compensation. If it is proved that the land in question belongs to plaintiffs on which the Corporation has formed the road, the plaintiffs would be entitled to compensation. Therefore, for the purpose of deciding the controversy between the parties, we are of the view that the amendment sought for is just and necessary. 9. 1. It is a settled position of law that amendment of pleadings can be allowed at any stage of the proceeding either in the suit or in the appeal provided it is necessary for the purpose of deciding the controversies between the p

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