Amendments to pleadings should be allowed to determine the real controversy between parties, emphasizing a liberal approach to avoid multiplicity of litigation.

JUDGMENT :

APARESH KUMAR SINGH, C.J.

Heard Mr. A. Sengupta, learned counsel appearing for the petitioner and also heard Mr. Arijit Bhowmik, learned counsel appearing for the respondent No.2-AMC and Mr. Dipak Deb, learned counsel appearing for the plaintiff-respondent.

[2] Application under Order VI Rule 17 by the plaintiff has been allowed by the impugned order dated 02.07.2024 in Civil Misc 25 of 2023 arising out of T.S. No.08 of 2021 which has aggrieved the defendants to approach this Court under Article 227 of the Constitution of India . The suit was instituted for a decree of declaration that the construction of the building made by the defendants on Schedule-B of the suit land without keeping required space from the eastern boundary line of the Schedule A of the suit land i.e. from the western boundary line of Schedule-B of the suit land of defendants and also without any approval and permission from the Agartala Municipal Corporation is illegal, unauthorized and liable to be demolished. The plaintiff also sought a declaration that demolition of the existing boundary wall in between eastern boundary line of schedule-A land and western boundary line of schedule-B land by the defendant is illegal and reconstruction of the boundary wall by encroachment of the portion of the Schedule-A land of the plaintiff forcibly without permission of the Corporation by way of encroachment is also illegal and void. Plaintiff also sought a decree for permanent injunction restraining the defendants from constructing the building within required space of 3.50 metres from the boundary line of the respective suit lands of the plaintiff and defendants and also to reconstruct the boundary wall encroaching the Schedule-A suit land of the plaintiff on the basis of false and fabricated demarcation. Petitioner also sought mandatory injunction directing the defendants for demolition of 3 storied building constructed by them on the Schedule-B land without filling the required space of 3.50 metres from the western boundary line of Schedule B of the suit land.

[3] During hearing of the case, the order dated 01.05.2021 passed by the learned Trial Court in Misc(inj) No.03 of 2021 in the same suit has been placed whereby the learned Trial Court had ordered that pending disposal of the main suit bearing T.S. No.08 of 2021, all the parties to the petition were directed to maintain status quo. This order remains unchallenged. The proceedings of the suit progressed further. Issues were framed and examination-in-chief of four plaintiff witnesses was submitted when this amendment application under Order VI Rule 17 was preferred by the plaintiff. Plaintiff contended that at the time of institution of the suit, they could not take measurement of the encroached portion of the homestead land after erection of new boundary wall due to resistance of the defendants and other unknown persons. They could not incorporate the fact of encroachment of the total land and also could not make the prayer for recovery of possession of the encroached portion of the homestead land of the plaintiff of Schedule-A under Section 38 of the Specific Relief Act. However, they prayed for mandatory injunction for demolition of the newly erected boundary wall forcibly. It was in these circumstances that the plaintiff sought amendment of the plaint for incorporation of the illegal acts of defendants for demolition of the old existing boundary wall and for recovery of the encroached portion of the homestead land of the plaintiff in the extreme eastern side of the homestead land of the plaintiff covered by the defendants in their homestead land in Schedule-B of the plaint by illegal erection of new boundary wall. They also sought to incorporate the prayer for getting possession of the encroached portion in the homestead land of the plaintiff.

[4] There were so many cases between the previous owners of the homestead land of defendants and the plaintiff regarding the boundary dispute. Accordingly, they