Amendments altering the fundamental nature of a case are impermissible; evidence must align with pleadings for consideration in civil litigation.

Judgment :

NARENDRA KUMAR VYAS, J.

1.This is defendant's Second Appeal filed under Section 100 of the Code of Civil Procedure , 1908 against the judgment and decree dated 5-5-1994 passed by the learned District Judge, Rajnandgaon in Civil Appeal No. 6-A of 1990 whereby learned District Judge Rajnandgaon has dismissed the appeal against the judgment and decree dated 8-3-1990 passed by the learned Civil Judge, Class II, Dongargarh by which suit has been decreed.

2.This appeal was admitted by this Court on 24-6-2011 on the following substantial question of law:-

“Whether in the facts and circumstances of the case the First Appellate Court was justified in rejecting appellant's application under Order 41 Rule 27 and under Order 6 Rule 17 of CPC?”

3.For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Suit No. 36-A/2008 before the trial Court.

4.Brief facts reflected from the plaint averments are that:

A) The plaintiffs filed a civil suit for possession and damages on24.02.1984 mainly contended that the plaintiffs are legal heirs of late Ganga Prasad. The defendant Ram Manohar has shown his interest to sell the suit property situated at Dongargarh city bearing Khasra No. 482/3 area 14 x 30 total 1200 sq.ft., for sale consideration of Rs.1500/-. Accordingly, the defendant has sold the suit property through registered sale deed dated 27-6-1973 and possession has also been granted to the plaintiff. It is also case of the plaintiffs that the plaintiff's parents remained in possession of the suit property till 1975 and the names of the plaintiffs have also been mutated in the revenue records.

(B) It is also case of the plaintiffs that when the plaintiffs intended to construct the house in the suit property then the defendant raised an objection contending that the defendant has mortgaged the suit property, therefore, the plaintiff cannot construct the house on the suit property which has necessitated the plaintiffs to file a civil suit for possession and damages. During pendency of the suit the plaintiff's father died, therefore, they amended pleadings and contended that being legal heirs of late Ganga Prasad, they are also entitled to inherit the suit property and also amended that the suit property is now not agriculture land as it has been diverted land.

(C) The defendant has filed written statement denying the allegations made in the plaint mainly contending that it is emphatically denied that the defendant had proposed for selling of the property, in fact it is a mortgage deed and it is mortgaged as security of loan taken by him. It was also contended that orally it was agreed that false sale deed will be executed and no possession will be given on the suit property and after payment of loan along with interest, the plaintiff will return the sale deed. It has also been contended that the defendant is in possession of the suit property with the knowledge of the plaintiff, therefore, in view of principle of adverse possession, he acquired the title over the suit property. It has also been contended that the suit should have been filed within six months from 15-1-1983, as per provisions of the Specific Relief Act, 1963 but it has been filed after lapse of two years, as such the suit is not maintainable as barred by limitation. It has also been contended that the suit is not maintainable in view of Section 257 of the Land Revenue Code and has prayed for dismissal of the suit.

5. Learned trial Court on the pleadings of the par