( 1 ) THE petitioners are the original plaintiffs who moved an application at Exhibit 38 to amend the plaint as well as application for temporary injunction, under Order 6 Rule 17 of the Code of Civil Procedure. Such application at Exhibit 38 was resisted by the respondent - defendant, inter alia, on the ground that it would change the entire nature of the suit property and also on the ground that it would change substantially the cause of action and it would cause prejudice to the defence of the original defendants which they have successfully pleaded in their reply as well as in the written statement.

( 2 ) THE learned Civil Judge, Junior Division, Mundra (Kutch) vide order dated 26/02/1996 rejected the application at Exhibit 38 whereby the application to amend the plaint is rejected. On the very day, the learned trial Judge also proceeded to dismiss the application at Exhibit 5 for temporary injunction which order is under challenge by way of Misc. Civil Appeal before the District Court at Kutch, Bhuj.

( 3 ) IN order to appreciate an interesting question of law which is raised in this civil Revision Application and to answer the submissions which are very succinctly and articulately put before this Court, it would be necessary to set out the averments made in the plaint initially and the averments which are sought to be deleted from the plaint by the amendment application at Exhibit 38.

( 4 ) THE plaintiffs instituted Regular Civil Suit No. 68 of 1995 against the defendants for declaration to the effect that on the land of the ownership of plaintiffs at village Toda, Taluka Mundra bearing Revenue Survey No. 9/4 which is kharaba land, the defendants have no right or authority in law to enter into such land and to put up construction thereon and for further declaration that the construction which the defendants were making was unlawful and unauthorised and for injunction restraining defendants from entering into the said land, using the same land and from putting up construction thereon. The suit was filed on 30/11/1995.

( 5 ) IN such suit, an application for temporary injunction was also moved at exhibit 5. The averments made in the plaint as well as in the application at Exhibit 5 are in pari materia. According to the plaintiffs, their ancestor Gauji Dajibha was the resident of village Toda and he was the great grandfather of plaintiff No. 2. It was averred that the defendants belong to another community and since short time they have come to village Toda and started residing at village Toda. On the ancestral land of the plaintiff, on some portion residential houses were built on agricultural land known as "bandh" which land was sub-plotted and the sub-plots were sold at 400 kories and 600 kories. These parcels of land are situated, according to plaintiffs, at village Toda and in number of such sub-plots, buildings are constructed and some of the sub-plots are lying vacant. A writing was executed about 70 years back where the land in question was given to the ancestor of the plaintiffs and those persons who have purchased the sub-plots from their ancestor Gauji dajibha, in khata book or account book, amount was maintained by Gauji Dajibha which the plaintiffs have produced. In earlier civil dispute even a map was prepared with respect to the parcels of land at village Toda and it is submitted that the land in question was inherited by the plaintiffs from the common ancestor. They further averred that the said parcels of land is Revenue Survey No. 9/4 which is of the ownership of the plaintiff as per the village record and that it is the land situated at village Toda and it is kharaba land. It was lying as fallow land. In para 5 of the plaint, the plaintiffs have described the boundaries of the land in question and they have averred that the land in question is of their ownership and is in their possession. They averred that the defendants have illegally and unauthorisedly entered into possession of the land an