1. Order dated 04.10.2010 passed by learned Munsiff No.2, Tezpur in Misc.(J) Case No. 122/2010 allowing an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of counter-claim of the opposite party herein have been called in question in the present application under Article 227 of the Constitution of India.

2. The petitioners herein as plaintiffs instituted Title Suit No.9/2010 in the court of learned Sadar Munsiff at Tezpur for declaration of their right, title and interest over half share of land measuring 2 Bigha 2 Katha 9 Lechas covered by Dag No.967, 959, 954, 974 and 969 pertaining to periodic patta No.59(old)/61(new) of Saikia Chuburi, Dekargaon in the district of Sonitpur. It is the case of the plaintiffs that the aforesaid suit land was originally owned by one Late Khargeswar Baruah. Khargeswar Baruah died leaving behind his two sons, namely, Ganesh Baruah and Lakhiram Baruah. Ganesh Baruah died leading behind the plaintiffs as his legal heirs and Lakhiram Baruah died leaving behind the defendant Sri Dambarudhar Baruah as his sole legal heir. The defendant in the meantime had also instituted a Title Suit No.84/2009 in the court of learned Munsiff at Tezpur praying for declaration of his exclusive right, title and interest with respect to his entire ancestral property and also prayed for injunction. The plaintiffs having appeared therein contested the suit as well as the injunction petition. The learned court after hearing the parties ordered to maintain status quo with respect to the suit property during pendency of the suit. It is stated that the suit is at the evidence stage. The defendant having claimed exclusive right, title and interest with respect to half of the ancestral property in the aforesaid suit the plaintiffs made a similar prayer in the present suit for declaration of their right, title and interest with respect to 2 bigha 2 katha 9 lechas of land which is part of the entire ancestral property.

3. Having received summons the sole defendant appeared and filed written statement as well as counter-claim. In the counter-claim the defendant stated that the plaintiffs had, in the meantime, sold various plots of land to different persons and thus exceeded their title. The counter-claimant, therefore, made a prayer for determining the respective shares of the parties with respect to the entire ancestral land and for partition of the Schedule-A & B properties mentioned in the counter-claim. The prayer was made in the counter-claim for drawing a preliminary decree and for delivering vacant possession of the land falling in the share of the counter-claimant. After the plaintiffs filed written statement against the counter-claim it came to light that the plaintiffs had appointed a constituted attorney and through him various sales were made. Under such circumstances the counter-claimant filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for impleading Sri Satyajit Swargiary, the aforesaid constituted attorney, and other 10 persons who had purchased land from Schedule-A of the counter-claim. A prayer has also been made that the sale of property made to the transferees by constituted attorney of the plaintiffs if found in excess of the share of the plaintiffs, in that event, the sale deed in respect thereto are to be adjudged illegal, inoperative etc. The said sale deeds are described in Schedule-C to the amendment petition. It is to be noted here that at the time when the amendment application was filed the suit was at the initial stage and no issues were framed and so trial had not commenced.

4. The plaintiffs filed a written objection against the amendment petition, inter alia, on the ground that since the plaintiffs made a limited prayer for declaration of their right, title and interest over half share of the suit land with consequential relief of partition and separate possession by passing preliminary decree by meats and bounds a