ORDER:

The challenge in this CRP filed by the petitioners/plaintiffs under article 227 of the Constitution of the India is to the order dt:05.05.2023 in I.A No.198/2023 in O.S No.207/2016 passed by learned Principal Senior Civil Judge at Gajuwaka, Visakhapatnam District dismissing the application filed by the plaintiffs under order VI rule 17 CPC seeking permission of the court to amend the plaint and add the prayer:

“The defendants occupied the 4 to 4½ feet of land of the plaintiff, the defendants occupied with wrongful possession, it is necessary to recover the 4 to 4 ½ feet of land on the Northern side of the plot No.1843 from the defendants and handover to the plaintiff.”

2. Initially plaintiffs filed suit for declaration and perpetual injunction in respect of 107 Sq Yds of house site in Plot No.1843 claiming to have purchased under a registered sale deed dated 13.08.2001. They pleaded that ever since the purchase, they have been in peaceful possession and enjoyment by constructing asbestos sheeted house and defendants without having any right over the property trying to meddle with the same. Pending the suit the 1st plaintiff and 1st defendant died and their respective LRs were brought on record.

(a) While so, the plaintiff filed I.A No.240/2019 and got appointed an advocate commissioner for recording physical features and taking measurements of plaint schedule property with the aid of Mandal Surveyor and Visakhapatnam Steel Plant Surveyor. The advocate commissioner filed his report. Thereafter, the plaintiffs filed I.A No.198/2023 seeking amendment of the plaint to add the prayer of recovery of possession of 4 to 4½ feet of the land which was occupied by the defendants. In the affidavit filed by the 3rd plaintiff in support of the amendment petition, it is mentioned as follows:

“1.xxx

2.xxx

3. I submit that my parents filed a suit for declaration and for permanent injunction against the defendants before the Honourable Court. The suit was pending before the Honourable Court. I submit that during pending of the suit I measured the plaint schedule property, it was not tallied and opined that the defendants/respondents occupied the schedule property. Immediately I filed an I.A.No.240/2019 in O.S.No.207/2016 for appointment of Advocate Commissioner for physical features and measurements of plaint schedule property along with Mandal Surveyor and Steel Plant Surveyor. The Advocate Commissioner measured the plaint schedule property and files a report before the Honourable Court. The Surveyor of the Steel Plant identify the schedule property and stated in his report that 4 to 4½ feet site was encroachment on the northern side of the plaint schedule property and also stated that there is not identified 1843A plot in layout plan. After the commissioner report the plaintiff/petitioner got knowledge about that the defendants occupied the said land.”

(b) The respondents / defendants opposed the amendment petition. The trial court after enquiry dismissed the IA No.198/2023 on the following main observations:

(i) By a vivid narration of the different adjournment dates it was observed that the plaintiffs delayed the progress of the suit by filing different applications and not getting ready (ii) The 3rd petitioner /3rd plaintiff stated to have measured the property and found that the property was not tallied but the said fact is totally missing in the original plaint. Neither the time, nor particular day or date of measuring was mentioned in the amendment petition so that the court could not verify the same. The contents of the affidavit were drafted in a clever manner so that the aspect of limitation could not be imagined.

(iii) The petitioners sought for appointment of advocate commissioner only to note down the physical features of the suit schedule property with the assistance of Mandal Surveyor along with Surveyor of Visakhapatnam Steel Plant but nowhere in the petition, they sought for measurement of suit schedule property.

The trial Court