A plaintiff must prove ownership and prior possession to seek an amendment for additional relief in a property dispute; lack thereof results in dismissal.

JUDGMENT :

NIDHI GUPTA, J.

Present petition has been filed by the plaintiff under Article 227 of the Constitution of India seeking quashing of impugned order dated 18.02.2025 (Annexure P7) passed by learned Additional District Judge, Gurdaspur in CA No.548 of 2018 titled as “Kamal Kumar Vs. Satnam Singh & Others” vide which application filed by the petitioner under Order 6 Rule 17 CPC for amendment of the plaint for incorporating alternate relief of possession, has been dismissed.

2. Learned counsel for the petitioner submits that the learned Lower Appellate Court was in manifest error in dismissing the application of the petitioner as it failed to appreciate that during the pendency of the litigation, the petitioner had been dispossessed from the suit property. It is submitted that even the learned trial Court has given a finding that the petitioner is not in possession over the suit property. As such, the petitioner had filed an application for amendment of the plaint to include prayer for grant of possession. It is submitted that therefore, the application of the petitioner has been wrongly dismissed. It is accordingly prayed that the impugned order be set aside.

3. No other argument is made on behalf of the petitioner.

4. I have heard learned counsel for the petitioner and perused the case file in great detail.

5. Brief facts of the case are that on 06.11.2013, the petitioner had filed the present suit for declaration that petitioner is owner in possession of the suit property as described in the plaint (Annexure P1). The petitioner had also sought relief of permanent injunction restraining the defendants from illegally and forcibly interfering in the possession of the plaintiff as owner over the suit property. Upon notice, only respondent No.1/defendant No.1 had contested the suit. Remaining defendants were proceeded against ex parte. Vide judgment and decree dated 24.09.2018 (Annexure P2), Suit of the petitioner was dismissed with costs. Accordingly, the petitioner had filed appeal dated 18.12.2018 (Annexure P3). Along with the appeal, the petitioner had filed an application for interim relief which was declined by the learned Lower Appellate Court vide order dated 14.03.2019 (Annexure P4). However, the parties were directed to maintain status quo regarding possession over the suit property till disposal of the appeal.

6. It is the case of the petitioner that during the pendency of the appeal, the respondent no.1 had dispossessed the petitioner from the suit property. As such petitioner was constrained to file the present application dated 06.11.2019 (Annexure P5) seeking amendment of the plaint by incorporating alternate relief for suit of possession. A perusal of the application dated 06.11.2019 (Annexure P5) shows that in Para 12 thereof, it has been alleged that in the beginning of June, 2019, when the petitioner was away to Delhi for about 10 days, the respondent No.1 had “illegally and forcibly encroached upon the suit property and raised construction in the form of Pucca shop over the suit property as shown in plan annexure “A” attached with the present application.”; thereby implying that prior to this the petitioner was in possession of the suit property. However, the said assertion of the petitioner is not supported from the record as it is the positive finding of the learned trial court that the petitioner was never in possession of the suit property. A perusal of the judgment and decree dated 24.09.2018 (Annexure P2) shows that petitioner had claimed ownership over the suit property on the basis of a Sale Deed dated 10.04.1978 executed by one Swaran Lal. In Para 19 of the judgment and decree dated 24.09.2018 (Annexure P2), learned trial Court has recorded that