JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Being aggrieved by an order dated 23rd February 2024 passed by learned Civil Judge (Junior Division) Jalpaiguri in Title Suit no. 102 of 2022, present application under Article 227 of the Constitution of India has been preferred. By the order impugned, learned court below has allowed plaintiff’s application for amendment of plaint under Order VI Rule 17 of the Code of Civil Procedure with cost of Rs.1000/-.

2. Petitioner herein contended that opposite party no. 1 as plaintiff filed aforesaid Title Suit no. 102 of 2022 inter alia with a prayer for confirmation of title, possession, declaration, injunction and consequential reliefs. Plaintiff purchased property in question by virtue of a registered deed and plaintiff’s further case is since purchase plaintiff was in possession of the schedule mentioned suit property which is butted and bounded by boundary wall form all sides, along with gate. Plaintiff’s further case is that his name has been recorded in the L.R Records of Rights

3. During pendency of the said suit plaintiff filed an application for amendment wherein he has stated that after disposal of Revisional Application being no. C.O. 68 of 2023, the defendants, during puja vacation on 10.11.2023 with the help of local antisocial elements, and after braking open the padlock of the main entrance gate, put their padlock thereon and thereby they took forcible possession and control of the suit land, deliberately violating the order of status quo dated 19.04.2022. Plaintiff also prayed for incorporation of consequential reliefs in terms of alleged dispossession. The petitioner/defendant filed written objection against said prayer for amendment of plaint made by the plaintiff, contending that plaintiff was never in possession of the property and it is all along under defendant’s possession.

4. However learned court below upon hearing learned counsel appearing on behalf of the parties and relying upon a judgment of this Court reported in (2023) 4 ICC 543, came to a finding that proposed amendment involving question of encroachment and recovery of possession, unless incorporated by way of amendment, the real controversies between the parties could not be adjudicated effectively and conclusively. He further observed that the proposed amendment if allowed will not change nature of the suit and on the contrary for proper adjudication of suit, proposed amendment is necessary, without going into the correctness or falsely of the case made out in the amendment application.

5. Being aggrieved by the said order Mr. Guhathakurata on behalf of the petitioner submits that opposite party no. 1 herein/plaintiff has admitted in paragraph 25 and 26 of the plaint that he is not in possession of the suit property. Moreover opposite party no. 1 has not stated or produced any document in order to prove his possession over the suit property. In this context he also referred Order VII Rule 14 of the Code and contended that the plaintiff is required to produce the documents at the time of presentation of the plaint but in the present case the opposite party no. 1/ plaintiff has not produced any document in support of possession over the suit property.

6. He further submits that opposite party no. 1 /plaintiff filed an application for investigation commission but the commissioner in his report mentioned that the plaintiff failed to identify his land. However court below rejected commissioner’s report and said rejection order was challenged before this Court in C.O 68 of 2023 and this Court was pleased to set aside the appointment of pleader commissioner. Thereafter when the opposite party no. 1 failed to prove his possession and also failed to identify his alleged purchased land, he has come up with the said application for amendment with malafide intention and oblique motive with alleged story of their dispossession from the suit property and also for recovery of possession. If such prayer is allowed it will not only ch