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Judgment
Clark, J.—The first respondent is a trustee of a temple and has filed the suit for recovery of possession of certain properties which he claims
to belong to the temple. He filed the suit in December, 1944, against two persons (defendants 1 and 2) to whom another trustee purports to have
mortgaged the properties. That mortgage was a possessory mortgage, dated 20th May, 1942 and accordingly the suit was one for possession
against the two mortgagees. The first respondent asked also for cancellation of the mortgage on the ground that the trustee-mortgagor had no
authority to effect it. The plaint was accepted and registered on the 13th January, 1945 and the defendants-mortgagees claimed that the mortgage
was paid off before that date. In October, 1945, the suit was decreed in the respondent''s favour. In March, 1945, the trustee who effected this
mortgage (the fifth defendant) purported to sell this mortgaged property to the petitioner. There was an appeal to the Subordinate Judge''s Court
against the decree which was disposed of by consent. The decree was set aside and the case was remanded for trial. The order of remand
directed that the defendants were to be permitted to file an additional written statement raising such other additional pleas as they may be advised
and the plaintiff was to be permitted to amend his plaint by adding necessary parties, if any plea of non-joinder of the other trustee is taken by the
defendants in their written statement. When the case came back to the trial Court the plaintiff joined the remaining trustees and also the present
petitioner who it will be remembered claims to be a transferee from the fifth defendant-trustee. The plaintiff joined also the ninth defendant who
claims to be a lessee from the petitioner, eighth defendant. The petitioner and the ninth defendant were joined because they claimed to have some
interest in the property of which the plaintiff was claiming possession. The suit came on for hearing on the 13th and 14th of November, 1946 and
on the 15th November, 1946, whilst the hearing was in pro-gress the respondent filed an application to amend his plaint by inserting a claim for
cancellation of the sale-deed in favour of the petitioner and for possession against the petitioner and the ninth defendant. The District Munsiff
allowed this amendment.
The petitioner now applies u/s 115 of the CPC and asks that the order may be reversed and the amendment disallowed. His case is that the
amendment has the effect of changing the cause of action and that on that account it was not properly allowed. The District Munsiff has dealt with
this point in his judgment. He takes the view that the suit is properly to be regarded as one for recovery of possession of properties belonging to
the temple and, that being so, that it is proper that the respondent-plaintiff should have his claim fully decided in these proceedings. Otherwise the
first respondent, after securing a decree, will be compelled to file another suit to give full effect to the claim which he is now making. Counsel for
the petitioner of course relies on the dictum of Lord Buckmaster in the case in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 IndAp 214 :
ILR 48 Cal. 832 (P.C.). He urges that the effect of this amendment is to substitute one distinct cause of action for another and to change the
subject-matter of the suit. There might be some force in this contention if the original suit were properly to be regarded merely as one for
cancellation of an instrument of mortgage. The amendment then would convert it into a suit for cancellation of a subsequent transfer of the same
property. But like the District Munsiff I cannot regard the suit in this way. It is a suit for possession of that property. After it was filed the person
who is alleged to have wrongfully parted with the possession makes another transfer of the same property and by so doing puts another obstacle in
the way of the plaintiff. In these circumstances it would, I think, be most improper to refuse the amendment asked. The only effect of such a refusal
would be to compel the plaintiff to file another suit and to delay him in securing a decision as to the right to possession which he claims. This is the
view which has been arrived at by the District Munsiff and it is one with which I agree. Accordingly I consider that the amendment was properly
allowed but in any event I am satisfied that there is no case shown here for interference u/s 115 of the Civil Procedure Code. The petition is
dismissed with costs.