JUDGMENT - R.K. Batta, J.:---This Revision is directed against order of Civil Judge, Junior Division, Quepem, allowing amendment sought by the respondent (defendant in the suit).

2.In order to appreciate the controversy relating to the amendment, it is necessary to briefly enumerate the facts :

Petitioner (plaintiff in the suit) claimed to be co-owner of property surveyed under No. 28/2 that the defendant has his common residential house in property under Survey No. 28/1 which also belongs to plaintiff and his family members; that in the month of December 1990, plaintiff noticed that the defendant without his consent and that of his brothers, had embarked upon construction of laterite masonry structure admeasuring 7 x 7 metres; that the matter was sought to be amicably settled and the plaintiff agreed to sell an area of 72 square metres to the defendant for a sum of Rs. 5,000/- of which a sum of Rs. 1,000/- was paid on the date of the execution of Agreement on 7-12-1990 and the balance amount of Rs. 4,000/- was payable in 4 equal monthly instalments of Rs. 1,000/- each payable on 17th January, 1991, 17th February, 1991, 17th March, 1991 and 17th April, 1991. Clause 2 of the said Agreement provided that in the event defendant failed to pay any instalment of the balance amount of sale price in time, then the purchaser shall forthwith demolish the construction without raising any dispute; the instalments were not paid resulting in filing a suit by the plaintiff for mandatory injunction to demolish the suit construction covering an area of 72 square metres in Survey No. 28/2. This relief is apparently sought in view of Clause 2 of the Agreement for sale.

3.The defendant did not dispute the ownership of Survey Nos. 28/1 and 28/2 of the plaintiff and his brothers. However, the case of defendant is that there was already a structure which the defendant had repaired/ re-constructed; that the said old structure was used for the purpose of storing and the defendant thereafter started residing therein. The defence case further is that the plaintiff agreed to sell the land occupied by the suit construction for Rs. 5,000/-; and the defendant paid a sum of Rs. 1,000/-; the defendant expressed his readiness and willingness to perform his part of the agreement, namely, the payment of the balance amount, but the plaintiff has failed to execute the document by clearing the title of the same. The defendant blamed the plaintiff for non-execution of the sale and filed counter-claim seeking direction to the plaintiff to execute the sale deed in respect of the suit construction. The first date for filing of the written statement was 30th January, 1992 and the written statement in question was filed on 5-3-1992.

4.On the basis of pleadings of the parties, issues were framed on 25th September, 1992 and the matter was fixed for evidence. Somewhere in the year 1993, the defendant filed an application for amendment under Order 6, Rule 17 r/w 151 C.P.C. By the said amendment application, the defendant sought to introduce following amendments :

(1)"That the suit is barred by the law of limitation, in so much so that the same has been filed after more than 3 years after the construction of the alleged 'suit house with enlargement'";

(2)"That the alleged 'suit house with enlargement' is the Mundkarial dwelling house of the defendant and the defendant, his mother alongwith their ancestors have been in occupation and possession of the same for the last more than 30 years. As such, this Hon'ble Court has got no jurisdiction to entertain and try the present suit, as the same involves issue of Mundkarship which has to be decided only by the Court of Mamlatdar".

The ground on which the amendments were sought was that the amendments were necessary for determining real controversy between the parties and no prejudice will be caused to the plaintiff if the said amendments are allowed. The reasons for not including the said amendments initially in the written statement were

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