I.A. Ansari, J.
1. With the help of the present application made under Article 227 of the Constitution of India, the plaintiff has challenged the order, dated 16.2.2006, passed, in Title Suit No. 01/99, by the learned Civil Judge (Junior Division) No. 2, Tezpur, whereby the learned Court below has rejected, inter alia, the plaintiff-petitioner’s prayer for amendment of her plaint.
2. I have heard Mr. T.C. Khetri, learned Senior counsel, for the plaintiff-petitioner, and Mr. A.R. Banerjee, learned Senior counsel, appearing on behalf of the defendants-respondents.
3. The material facts and various stages, which have led to the present writ application, may be set out as follows:
(i) The petitioner’s case, as plaintiff, in Title Suit No. 1/99, is, in brief, thus: The plaintiff, in terms of a sale deed, dated 22.09.94, which was registered, on 28.9.2004, at the office of Tezpur Sub-Registrar, purchased, in consideration of Rs. 35,000/- from M/s. Bhomra Brothers, a partnership firm, 3 (three) kathas of land under Dag No. 723 (old)/1254 (new), covered by periodic patta No. 557 (old)/58 (new), of Tezpur Town, Mouza-Mahabhairab, District-Sonitpur, for and in the name of her educational institution, namely, Children’s Paradise School. In fact, in pursuance of an agreement to purchase the said land, the plaintiffs institution had occupied the land long back by doing earth filling, but the plaintiff wanted to have the land demarcated, through staff of the Settlement Office, before purchasing the same. In terms of, therefore, a request made by the plaintiff in this regard, one of the partners of the said firm applied for demarcation of boundary to the Sadar Circle Officer, Tezpur, who, in turn, through a lat mandal carried out, after giving notice to the neighbours including the defendants, spot verification, demarcated and determined, on 4.11.92, the boundaries of the said land in the presence of the plaintiff, vendors and others of the locality. Since thereafter, the plaintiff continued to remain in possession of the land without any interruption from any quarter. However, as the western and southern sides of the plaintiffs land were low-lying land, it had not been possible for the plaintiff to reclaim the same by doing complete earth-filling, particularly, because the said low-lying land remains under water throughout the rainy season. The defendants occupy the western and southern sides of the land of the plaintiff purportedly owned by defendant No. 1. Taking advantage of the fact that the defendants’ land is situated on the contiguous western and southern sides of the plaintiff’s land, the defendants, surreptitiously, erected a bamboo fencing encroaching upon some portion of the plaintiff’s land on the western and southern sides, as described in the schedule to the plaint. This encroachment took place on or around 14.1.96, i.e., Magh Bihu. On objections raised by the plaintiff to such encroachment, the defendants removed the bamboo fencing assuring the plaintiff that they would continue to occupy their own land of different dag and would not, in future, disturb the possession of the plaintiff over the land of her said school. Notwithstanding the assurances, so given, the defendants, again, erected bamboo fencing, on the occasion of Magh Bihu, in the year 1997, and despite protests raised by the plaintiff, the defendants have not removed the encroachment. The plaintiff has not been able to fence the entire land of her said educational institution on its western and southern sides up to the institution’s actual boundary inasmuch the low-lying land, at the end of the boundary, has to be Filled up by earth to bring it to the level of the rest of the land purchased by the plaintiff in the name of her said school. In order to protect the children, studying in her school, from meeting with accident as the land is a low-lying one and also with a view to starting the work of earth-filling there, the plaintiff wanted the defendants to remove their fencing erected by them on the plaintiffs land. As the defendants have not allegedly removed the encroachment, the plaintiff sought for, inter alia, a decree of declaration of her rights, title and interest over the suit land as owner thereof and entitled to hold the land for and in the name of M/s. Children’s Paradise School, the declaration having been so sought by demarcating the boundaries of the plaintiff’s land on the west-ern and southern sides.
(ii) The defendants contested the suit by filing their written statement, wherein they denied and disputed the plaintiff’s claim that the Sadar Circle Officer, Tezpur, had visited the suit land and/or that the boundaries had been demarcated. It is the case of the defendants that they have/had been in possession of their own land, which is covered by Dag No. 722 (old)/1248 (new), and not Dag No. 723 (old)/1254 (new) as alleged by the plaintiff. It is also the case of the defendant that the defendants’ land does not fall on the western and southern boundary of the plaintiff’s land, that the suit land is not a part of the plaintiff’s land and that the defendants have been in possession of the suit land for long before the establishment of the plaintiff’s Children’s Paradise School. The defendants’ further case is that the plaintiff has already fenced the entire land of her said school on all sides, including the western and southern sides, up to the actual boundary of the land and, hence, she has no land on the western and/or southern side, where she is required to do earth filling to bring the low-lying land to the level of the rest of her land, as claimed by her. The defendant’s contend that as the defendants have not erected any fencing on any part of the plaintiff’s land, no demand for removing their fencing was ever made by the plaintiff and that there is, in fact, no necessity to demarcate the boundary of the plaintiff’s land on the western and/or southern side, because she has no more land on the western and/or southern side and that the plaintiff has already taken possession of the land, which she has purchased, and she is not entitled to ask for any demarcation of the suit land. The defendants, therefore, prayed that the suit be dismissed.
(iii) During pendency of the suit, a Commissioner was appointed to survey the land and his report indicated, inter alia, that the defendants had not been found on the land, covered by Dag No. 723 (old)/1254 (new). Thereafter, the plaintiff filed a petition seeking amendment of her plaint, wherein the plaintiff contended, inter alia, that she had purchased two other adjacent plots of land in the name of her educational institution, in the year 1988, from the same vendor, namely, M/s. Bhomra Brothers, by two registered sale deeds and that from these two sale deeds, it transpires that the land of the old Dag No. 722 is situated either on the west or on the southern side of the land of the plaintiff, each of these two plots of land measuring 3 (three) kathas. For seeking amendment of her plaint, the plaintiff pleaded that in her sale deed of 1994, which she had relied upon, while instituting the suit, the schedule of the land showed the name of Karuna Hazarika (i.e., the defendant No. 1) on its western boundary, whereas the two sale deeds of 1988 show Dag No. 722 either on the west or on the south of the plot of the land purchased by her. For seeking amendment of her plaint, the plaintiff further pleaded that from the documents relating to the land, which belongs to the plaintiff, it, now, transpires that the defendants are in possession of the land measuring 3 (three) kathas, 18 (eighteen) lechas under Dag No. 722 (old)/248 (new). Hence, according to the plaintiff, the controversy, as regards the boundary demarcation between her and the defendants, cannot be properly adjudicated upon unless the plaint was suitably amended to include the two plots of land, which she had purchased in the year 1988.
(iv) The defendants resisted the prayer for amendment, made by the plaintiff, by contending, inter alia, that the amendment, as sought for by the plaintiff, if allowed, would change the nature and character of the suit and it would cause serious prejudice to the defendants and, in the face of the report of the Survey Commissioner, since the defendants were not in possession of the land, described in Schedule to the plaint, the amendment, if permitted, would allow the plaintiff to set up a new case, which is impermissible in law. The defendants, however, sought for some amendments of their written statement, which was resisted by the plaintiff.
(v) The learned trial Court, then, took up both the applications for amendment together and, while considering the amendment sought for by the plaintiff, it, in its order, dated 12.6.2006, held that even if the amendment, as sought for, was allowed, it would not help in adjudicating the real controversy raised in the suit inasmuch as the plaintiff, even through the proposed amendment, could not clearly state the identity of the suit land. Having reached this conclusion, the learned trial Court rejected the plaintiff’s prayer for amendment. Against the rejection of her prayer for amendment of her plaint, the plaintiff has, now, come to this Court with the help of the present application made under Article 227 of the Constitution of India. Though the defendants’ prayer was also taken up and rejected by the learned trial Court, the defendants have not challenged the same.
4. While considering the impugned order, dated 12.6.06, whereby the plaintiff’s prayer for amendment has been disallowed, it is apposite to point out, if 1 may reiterate, that the learned trial Court has declined to accept the prayer for amendment of the plaint, made by the plaintiff, only on the ground that even through the proposed amendment, the plaintiff could not clearly state the identity of the suit land. The moot question, therefore, is as to whether it is possible for a civil Court to entertain a suit, whereby the plaintiff seeks demarcation of her land, purchased by her and declaration of her title to the land on the basis of the demarcation to be made by the civil Court.
5. While considering the above aspect of the case, it is pertinent to point out that under the English Law, a suit for demarcation of boundary is not, ordinarily, entertained unless the competing equity between the parties so demand, for, English Law recognizes a distinction between legal estate and equitable estate. In India, however, the question, as to whether a suit is cognizable by a civil Court, is a matter to be decided in accordance with the provisions embodied in Section 9 of the CPC. If a suit is of civil nature, the Court will have jurisdiction to try the suit unless it is expressly or impliedly barred. A dispute, regarding identification of boundary between owners of two adjacent plots of land, is a dispute of civil nature and no law, either expressly or impliedly, bars a person, who has purchased such a plot of land, from going to the civil court seeking demarcation of the boundary of the land, purchased by him, and to seek, inter alia, declaration of title to the land, which may be so demarcated. There may also be cases, where disputes with regard to the boundaries may arise between two neighbours. In a situation, such as this, when any of such neighbours comes to the civil Court and seeks declaration of his title to a land by demarcating the boundary thereof, the civil Court cannot throw away the plaint by saying that it is the business of the plaintiff to know where lies the boundary of the land, which he has purchased. This aspect of law has been elaborately discussed in E. Achuthan Nair v. P. Narayanan Nair and Anr. AIR 1983 SC 137.
6. In India, it is not uncommon to describe a property only with respect to a neighbour’s property. In such a case, demarcation of the boundary of such a property may become necessary in order to fix the boundaries of the properties conveyed or allotted. If a neighbour does not co-operate to the demarcation of the land, a dispute may result and for resolution of such a dispute, which is civil in nature, a suit is triable under Section 9 of the CPC. In short, whenever there is a dispute between two parties as regards location of a boundary separating their neighbouring properties and if one of the parties go to the civil Court seeking demarcation of the boundary of his or her land and also declaration of title to the land, which may be so demarcated, the civil Court cannot close its door by simply saying that the plaintiff does not know as to where lies his or her land. See E. Achuthan Nair v. P. Narayanan Nair and Anr. AIR 1983 SC 137.
7. The present one is one of those cases, where the plaintiff has come to the Court seeking declaration of title to the land, which she has purchased in the name of her school, namely, Children’s Paradise School. In a suit of this nature and, particularly, in the facts of the present case, it is the duty of the Court to determine as to what the real controversy between the parties is. If the plaint is carefully read, what transpires is that according to the plaintiff, she has purchased a plot of land, covered by Dag No. 723 (old)/1254 (new), in the year 1994, in the name of her educational institution, namely, Children’s Paradise School and, before the purchase was made by her, the land was demarcated by the settlement office. The averment, so made by the plaintiff, may or may not be true. The fact, however, remains that the plaintiff’s claim is that she took over the possession of the land as shown by the settlement staff, but could not fence the same, because of the fact that the southern and western side of the land was low-lying and remains under water throughout the rainy season. It is also the case of the plaintiff that she had not been able to fence her land, which she had bought in the name of her educational institution, up to the actual boundary of the land on its western and southern sides.
8. If the statements, so made in the plaint, are carefully examined, it becomes amply clear that though the plaintiff had described, in the schedule to her plaint itself, the land purchased by her in the year 1994, she, at the same time, made it clear, in her plaint, that she had not been able to enfence the land of her institution, up to the actual boundary, on its western and southern sides. This, in turn, shows that the real controversy between the parties was that the land of the said institution had not been completely enfenced. With the help of the amendment, now, the plaintiff has sought to bring the land of her other two sale deeds within the schedule of the said land. If this prayer of the petitioner is considered in the light of the averments, made in paragraph 7, it is clear that notwithstanding the fact that the plaintiff’s suit was in respect of the land, purchased by her, in the year 1994, the real controversy, in the suit, was that the land, which had been purchased by the plaintiff, in the name of her school, had not been completely enfenced and that the some portions thereof had been encroached upon on its southern and western boundary by the defendants. This allegation may or may not be true; but it cannot be said that with the help of the amendment, so sought to be made, the nature or character of the suit would be changed if the amendment is allowed or a new case would be set up if the amendment is permitted. The amendment, if allowed, would, rather, settle the real controversy between the parties, particularly, when the plaintiff has clearly pointed out that while in the deed of 1994, the defendant No. 1 was shown as the man, whose land was on the southern and western boundary of the plaintiff’s land, the deeds of 1998, whose vendors were same as the vendors of the deed of 1994, showed the Dag No. 722 either on the western or on the southern side of the land. There is nothing on the records or in the pleadings of the parties to show that the plaintiff knew, at the time of institution of the suit, that the land of defendants was under Dag No. 722 and not under Dag No. 723.
9. In the circumstances, as indicated above, when the plaintiff states, in her petition for amendment, that from the deeds, it transpired that the land, in Dag No. 722, is situated either on the west or on the southern sides of her land, it could not have been said that the plaintiff knew that the defendant’s land was in Dag No. 722 and not in Dag No. 723.
10. The learned trial Court, as I have already pointed out above, did not allow the amendment, as had been sought for by the plaintiff, on the ground that despite the proposed amendment, the plaintiff was unable to identify her land. In a case of this nature, the duty of the plaintiff is only to adduce evidence, which is necessary for determination of the boundary of his or her land. As already indicated above, a person is entitled to institute a suit for declaration of title to his or her land, by demarcation of the boundary thereof, and a civil Court cannot decline to entertain such a suit. Though such a suit may fall for lack of evidence, the plaintiff cannot be non-suited merely on the ground that the plaintiff has not been able to identify his or her land correctly. Not permitting the proposed amendment to the plaint would amount to non-suiting the plaintiff, which is impermissible in law, particularly, in a case of the present nature. As long as the plaintiff adduces evidence, which can enable the Court to identify and locate the boundary of her land, the plaintiff cannot be non-suited. A suit cannot be dismissed merely because of the fact that the plaintiff does not know where his land lies. The demarcation of the land may fail if the plaintiff is unable to adduce evidence. In other words, a suit can fail for the Court’s inability to locate the land on account of lack of evidence; but a suit cannot fail, because of the fact that the plaintiff does not know the demarcation of his or her land.
11. Because of what have been discussed and pointed out above, I find that the present case is one, wherein the learned trial Court, while passing the impugned order, has not exercised the jurisdiction, which stood lawfully vested in it. Such an order shall, if allowed to stand good on record, cause serious miscarriage of justice.
11.1. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 16.2.06, shall stand set aside and the suit is remanded to the learned trial Court with direction to pass appropriate order (s) allowing the prayer for amendment made by the plaintiff in the light of the discussions made hereinabove.
Send back the LCR.