1. This appeal arises out of a suit instituted on the 29th November 1913, which was originally framed as one for damages and permanent injunction. It was alleged that the plaintiffs had title to and possession of the land in suit, and that the defendants had trespassed upon the land. The defendants on the 12th January 1914 filed a written statement in which they pleaded that the plaintiffs having no right to or possession of the land, the suit for damages in the form laid could not proceed according to law. On the 11th July 1914 the plaintiffs by a petition prayed for amendment of the plaint with a prayer for declaration of their title and it was alleged that the plaintiffs had been holding khas possession of the land, and had acquired title by adverse possession.
2. The case came on for hearing on the 22nd January 1915, and the Court of first instance found that the plaintiffs were out of possession of the disputed land before the institution of the suit, and that the suit for injunction and damages could not, under the circumstances, be maintained, although it came to the conclusion that plaintiffs' title was proved, and defendants had failed to prove adverse possession, for 12 years.
3. Against that decree the plaintiffs appealed, and the lower Appellate Court was of opinion that the order of the Court of first instance disallowing the prayer for amendment of the plaint by addition of a prayer for declaration of the plaintiffs' title to the land was not a proper one, as none of the parties could have been prejudiced by the grant of the prayer at that stage, and as the question of title was material for the proper decision of the suit. That Court accordingly remanded the case to the lower Court for an amendment of the plaint in terms of the plaintiffs' petition and for a re-trial of the suit after such amendment. After the case went back on remand, the plaint was amended with a prayer for declaration of plaintiffs' title. Then on the 16th January 1917, the plaintiffs put in another petition for further amendment of the plaint with a prayer for recovery of possession, and the prayer which they wanted to add by way of amendment was as follows: 'Or if in the opinion of the Court the plaintiffs are declared to have been dispossessed, then the Court may be pleased to pass a decree in favour of the plaintiffs for recovery of possession of the said property.' This was objected to on behalf of the defendants on the ground that the amendment was illegal, and altered the character' of the suit. This objection was, however, disallowed, and the case was tried out with the result that the plaintiffs' suit was decreed by the Court of first instance, and that decree was confirmed on appeal by the lower Appellate Court. The defendants have appealed to this Court.
4. The main question for consideration is whether the amendment of the plaint, in so far as the prayer for recovery of possession was concerned, ought to have been allowed, There is no doubt that the Code gives ample power to the Court for amendment. Order V, Rule 17, lays down that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The general conditions on which amendments should be granted have been summarised by Mr. Justice Woodroffe in the case of Upendra Narain Roy v. Janaki Nath Roy 47 Ind. Cas. 129 : 22 C.W.N. 611 atp, 617 : 45 C, 305. The learned Judge observed: 'The Court being desirous of getting at the true facts will allow an amendment subject to three general conditions: bona fides on the part of the applicant, possibility of amendment without such prejudice to the other party as cannot be compensated by costs (such as prejudice to rights accrued), and subject to this, that the amendment is not such as to turn a suit of one character into a suit of another character. This statement is not made as being exhaustive, but as embodying what are perhaps the three chief conditions on which amendment may be allowed.' See also Kali Das v. Draupadi 43 Ind. Cas. 893 : 22 C.W.N. 104 : 27 C.L.J. 403 and Rebati Raman Basak v. Haris Chandra Basak 58 Ind. Cas. 665 : 24 C.W.N.,749.
5. Now what are the facts of the present case? As stated above, the plaintiffs in their plaint asserted that they were in possession, and on that footing claimed damages and injunction; the defendants denied the plaintiffs' title, and pointed out that the suit could not be maintained as framed, as they were out of possession. Then the plaintiffs applied for an amendment of the plaint. The only amendment which they wanted was that there should be a prayer for declaration of their title. That was disallowed by the Court of first instance. The Appellate Court by a remand order directed an amendment in terms of the petition and that order was carried out.
6. It was not until the 16th January 1917 that the plaintiffs put in a petition for further amendment, namely, for recovery of possession, It is to be observed that the plaintiffs adduced evidence to show that they were actually in possession of the property and more than three years after the institution of the suit and in spite of the fact that the defendants pleaded that the plaintiffs were out of possession, they persisted in proceeding with the suit without any prayer for recovery of possession. In these circumstances, it is difficult to hold that there was bona fides on the part of the plaintiffs, as an omission to claim a prayer for recovery of possession appears to have been deliberate.
7. In the next place, there is no doubt that the defendants have been prejudiced by the second amendment. It is found that the dispossession of the plaintiffs took place more than six years before the institution of the suit. The suit as originally framed was one for damages and injunction and the prayer for declaration of title was added by the first amendment. No injunction was granted as it was thought unnecessary. The limitation applicable to the claim for damages is three years under Article 39 of the Limitation Act, and the claim for declaration of title added by the first amendment is governed by Article 120, The Court gave a decree for declaration of the plaintiffs' title, and mesne profits as damages. If the plaint had not been amended, for the second time, by adding a prayer for recovery of possession, the defendants could have, upon the findings, succeeded in defeating the plaintiffs' suit as originally framed or even as it stood after the first amendment, on the ground that it was barred by limitation. By the second amendment of the plaint, they were deprived of such a right. It is true that the defendants not having appealed against the order of remand directing amendment, were debarred by the provisions of Section 105, Sub-section 2 of the Code, from disputing the correctness of the order. But the remand order directed an amendment only so far as the prayer for declaration of title was concerned, and conceding that the Court of first instance had power to order further amendment under the order for re-trial, the defendants are not precluded by the provisions of Section 105 from showing that they had been prejudiced by the further amendment made in the course of the re-trial. They might not have objection to the order of remand directing amendment so far as declaration of title was concerned, nor to a re trial, and might not have, therefore, appealed against the said order. But they could not have anticipated that the Court would allow further amendment by adding a prayer for recovery of possession which was contrary to the case made in the plaint, and we do not think that they are precluded by Section 105 from raising the question of prejudice caused by the further amendment. The question whether an amendment should be allowed is a matter within the discretion of the Court, but the order for amendment appears to have been made without considering whether the defendants would be prejudiced thereby. There is no doubt that they have been prejudiced.
8. It is to be observed that in the present case it was not a bona fide mistake on the part of the plaintiffs; they were perfectly aware that they were out of possession, especially so, as it appears from the judgment of the Court of first instance that in a criminal case brought by the plaintiffs against the defendants sometime before the institution of this suit, which resulted in the dismissal of the case, the Criminal Court referred the plaintiffs to the Civil Court. Instead of bringing a suit for recovery of possession, they alleged that they were in possession and claimed damages and injunction against the defendants, and adduced evidence to show that they were in possession; and when the Court found that they were not in possession, it was then, as stated above, more than three years after the institution of the suit, that they prayed for amendment claiming recovery of possession, which altered the nature of the suit, Even then they stated that if in the opinion of the Court it be declared that they were out of possession,' then an amendment might be granted. Under Order VII, Rule 1, Clause (e), the plaintiffs shall state the facts constituting the cause of action and when it arose. The plaintiffs were, therefore, bound to state when they were dispossessed and how, in order that the defendants might meet such a case. There was thus, in fact, no proper application for amendment, nor was the cause of action (for recovery of possession) properly stated as required by law.
9. It is to be observed that the plaintiffs having been found to be out of possession before the institution of the suit, were bound to show that they were in possession within 12 years of the suit, the burden of proof being upon them. But the Courts below have discussed the question whether the defendants have shown that they had been in adverse possession for 12 years, and although there is a finding that the plaintiffs were in possession within 12 years, the Courts below have really proceeded upon the ground that the defendants' adverse possession for 12 years had not been proved, and the finding upon the question of limitation appears to be based upon the decision of the question of adverse possession by the defendants.
10. In all the circumstances of the case we think that the Court ought not to have allowed the amendment. We are accordingly of opinion that the decrees of the lower Courts should be set aside and the plaintiffs' suit dismissed. But as the question of title was found in favour of the plaintiffs, we direct that each party do bear its own costs throughout.