Full Judgment
Gokal Chand Mital, C.J.
1. The petitioner filed a suit against the respondents for permanent injunction to restrain the respondents from raising construction over public street in front of plaintiff's house on the ground that on public street, no encroachment or construction can be raised by a co-villager.
2. In reply, the respondents pleaded that they have got Patta for the disputed site from village Gram Panchayat on 10th August, 1987 and therefore, they could raise the construction.
3. Soon after filing the written statement, the plaintiff filed an 'application before the Gram Panchayat for obtaining a certified copy of the Patta and after Patta's certified copy was delivered, an application under Order 6, Rule 17, C.P.C. was filed to amend the plaint so as to challenge the validity of the Patta executed by the Gram Panchayat in favour of the detendnts on the ground that Gram Panchayat had no authority to execute Patta in respect of public streets, situated in a village. The trial Court dismissed the application for amendment of the plaint on the ground that it was belated.
4. This is plaintiffs revision against the aforesaid order.
5. It cannot be disputed in law that even Gram Panchayat has no authority to lease out public streets of the village. The case of the plaintiff in the plaint was that the site in dispute was a part of public street, which the defendants wanted to encroach by raising construction. When defendants took the stand that they have got legal right to raise the construction on the basis of the Patta issued by the Gram Panchayat in their favour, the plaintiff had no option but to amend his plaint and challenge the authority of the Gram Panchayat and the validity of the Patta so that later on it was not said by the Court or the defendants that despite written statement the validity of Patta was not challenged by the plaintiff. Instead of seeking amendment of the plaint it was also open to the plaintiff to file a replication to written statement and raise this very plea which has been raised in the application for amendment of the plaint.
The idea for seeking such amendment was so that the opposite party may know the stand whether Patta is being challenged by the plaintiff or not. Therefore, viewing the case from any angle, in case the site in dispute is a public street, the amendment was very necessary and the court below has failed to exercise its jurisdiction in not allowing amendment application even if there was some delay in filing the application for amendment because the amendment goes to the very root of the main cause of action.
6. Of course, if site in dispute is not a public street then the plaintiff will have no case. Either way the legal proposition is clear and now it is the duty of the trial court to find out the facts.
According, the revision petition is allowed and the impunged order dated 25th March, 1992 is set aside and the application for amendment is allowed. Let the amended plaint be filed within two months from today and the amended written statement will be filed within two months thereafter. The parties through their counsel are directed to appear before the trial Court on 20th Sept. 1994.