P L D 1965 (W (PLP)

Mian Muhammad Yunis Shah for Respondents. Date of hearing : 1st June 1965. This revision petition arises out of a suit, brought by Rahim Gul and three others, r/o Akora Khatak, Tahsil Nowshera, against Fazal Rehman, etc. for a declaration that they were the owners in possession of 1/2 share out of 19 kanals 19 marlas comprised in Khasra Nos. as specified in para. `alif' of the plaint and in possession of 1/4th share out of it as mortgagees. In para. `Be' they urged that they were the owners of 1 /2 share out of 124 kanals 14 marlas bearing Khasras Nos. 1277, 1270 and 1269, situate in the area of Akora Khatak and were in possession as vendees of the remaining 1/2 share, and thus they were the full owners of the entire land comprised in these Khasras Nos. In para. 4 of the plaint, it was urged that the plaintiffs and their predecessor‑in‑interest had been in possession as owners and mortgagees of the land mentioned in para. `alif' and in possession of the entire land mentioned in para. `Be' of the plaint as full owners, On 14.5‑64, an application was made by the plaintiff's to the Court requesting that they be allowed to amend the plaint and raise an alternative plea that they had become owners of Khasras Nos. 1277, 1270 and 1269 on account of adverse possession for over 12 years. The amendment was allowed by the trial Judge, by his order, dated 3‑6‑64, as in his opinion. 'it did not change the nature of the suit.

2. The defendant has come in revision.

3. Learned counsel for the petitioner urged that the evidence was concluded, and the case was fixed for the pronouncement of orders, when the application for amendment was made at a very late stage. He urged that the amendment will change the nature of the suit and is not consistent with the original suit. In support of this contention, he relied upon A I R 1940 Nag. 8, where it was held :‑ "where an amendment would convert the suit into one of a totally different character based not only on entirely different allegations but on allegations wholly inconsistent with the original plaint and would involve a fresh trial with fresh pleadings and fresh evidence, the amendment sought ought not to be allowed even if it were otherwise permissible." The plea of adverse possession is not inconsistent with the plea of ownership, as both are based on the plea of title, which the plaintiffs claim. They allege that their predecessors had purchased the suit property about 50 years ago, and since then their predecessors, and now they, are in its possession. By amending the plaint the plaintiffs want to further base their title on adverse possession against the defendants for a declaration that they had become owners of the suit property on account of adverse possession for over 12 years.

4. The real purpose of allowing amendment is to secure proper administration of justice for the purpose of determining the real question in controversy between the parties and normally leave to amend will be granted so as to enable the real question in issue between the parties to be raised in the pleadings, where amendment will not occasion injury to the opposite‑party. Learned counsel for the respondents in support of his contention that the amendment was rightly allowed by the lower Court, relied upon A I R 1935 Mad.

137. In that case the suit was filed by the plaintiff for an injunction against the defendant from trespassing on her land. Her case was that her husband was divided from his brother, defendant 1, about 35 years ago, that the land in question fell to his share, and he had been enjoying it and after his death she had been in possession and enjoyment of the same. The defendant admitted the partition but denied that the suit lands were ever family property. Thereupon the plaintiff asked leave to amend her plaint by further basing her title on adverse possession against the defendants for 12 years, and asking for a declaration that the, suit properties belong to the plaintiff and are in her possession and enjoyment : It was held "that the amendment was one which, under the circumstances of the case, should be allowed, as there was nothing in the proposed amendment which really added anything to the rights which plaintiff had stated in the plaint, and that the defendant will not be prejudiced by the proposed amendment."

5. The authority relied upon by the respondents' counsel is applicable, because in the instant case the plaintiffs claim that they have been in possession of the suit property for over 50 years on account of sale in their favour, but now they wish to amend it by taking the alternative plea that they had become owners on account of possession fo: over 12 years, and so in these circumstances, I hold that the amendment does not change the nature of the suit. I, therefore, maintain the order of the learned trial Judge and dismiss this revision with costs. K. B. A. Petition .dismissed.