A plaintiff is not precluded from claiming an easement of necessity merely because he had mistakenly claimed ownership of the land.

R. C. PATNAIK, J.

( 1 ) IN this revision, the plaintiff impugns the order of the trial Court rejecting his application for amendment of the plaint.

( 2 ) THE plaintiff has sought a decree for permanent injunction restraining the defendants from interfering with his possession and alternatively, if it is found that he has no title, for a decree of permanent injunction restraining the defendants from interfering with his possession without recourse to the procedure established by law.

( 3 ) THE suit was instituted for certain action taken by the authorities during the middle of 1975. The plaintiff has alleged that a part of his building abutting on municipal road was pulled down arbitrarily and without sanction of law; assuming that the land belonged to the Jagannath Road Fund, by his open and hostile user for more than the statutory period, he had acquired title and was not liable to be dispossessed. The suit for permanent injunction has been founded on these allegations.

( 4 ) DEFENDANTS 1 and 2 in their written statement have controverted the allegations that the demolition was conducted by them. The Collector-Defendant No. 3 has alleged that the land belonged to the Government. The structure was removed in course of an encroachment proceeding. Encroachment was unauthorised and had to be vacated. It has further been alleged that as possession had already been taken, there was no question of any threat to dispossess. Defendant No. 3 has challenged the title of the plaintiff.

( 5 ) THE suit went sluggishly on from 1977 to 1982 when on 15-2-1982 the plaintiff filed an application for amendment of the plaint. He wanted incorporation of a paragraph to the effect that the disputed land being the frontage of his residential-cum-business holding, its user being he since 1957 was by way of necessity and having regard to the balance of convenience, permanent injunction should be granted.

( 6 ) THE trial Judge rejected the prayer on the ground that the plea of easement of necessity sought to be introduced by amendment was not in consonance with the plea of ownership of which the suit was founded.

( 7 ) THE learned counsel for the petitioner has strenuously contended that the learned trial Judge has acted with material irregularity in exercise of jurisdiction by his rejection of the amendment. The nature of the suit was not changed which continued to be a suit for permanent injunction, the basic facts remain intact. If the plaintiff erroneously thought on the set of facts that he had acquired ownership, that very set of facts would not disentitle him to a different lesser relief. The counsel for the opposite parties, however, submitted that when the plaintiff based his claim on the basis of ownership, founding the claim on the basis of easement was impermissible as the plea was inconsistent with and destructive of his claim of ownership.

( 8 ) NO doubt, as a general rule, the Court will not in exercise of jurisdiction allow the amendment converting a suit of one character into a suit of another character, but special circumstances may justify departure. It is settled law that the Court cannot by way of amendment substitute one distinct cause of action for another or change the subject-matter of the suit. It has also been held in some cases that an amendment may be allowed even if it introduces new grounds of claim or allegations inconsistent with original pleadings where the Court thinks it just and necessary.

( 9 ) THE objection of the Opposite Parties has been that the plaintiff has based his suit for permanent injunction on the basis of prescriptive title, whereas by the amendment he sought to alter the basis to one of easement of necessity. By claiming an easement of necessity, the plaintiff admitted ownership of his opponent. Hence, the plea was inconsistent.

( 10 ) IN Venkataratna v. Subbaroya: (1911) 1 Mad WN 95, it was held that a false belief of ownership does not necessarily preclude the acquisition of a right of easem