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1998 DIGILAW 1142 (RAJ)

Vijay Singh v. Rajasthan Board of Muslim Wakf

1998-11-03

MOHD.YAMIN

body1998
JUDGMENT 1. - This revision petition has been directed against the order of learned Addi- tional District Judge No. 1, Jodhpur dated 7.8.95 by which an application for amendment has been disallowed. 2. I have heard the learned counsel for the petitioner as well as for the respondents plaintiffs. 3. Respondent plaintiff filed a civil suit against the petitioners and respondents Nos. 2 to 17 for possession and mesne profits in the year 1966. The facts as averted in the plaint are that there is a large plot of land named as Chandshah-ka-Takia situated near Sojti Gate Jodhpur. It is described in para No. 1 of the plaint. Out of this land an area of 10238 sq. yards is the subject of dispute in present litigation. The case of the plaintiff respondent is that the entire land including the land in mosque and a Takia in the disputed land. The land is a wakf property. Defendant No. 12 Neneh Shah was a Mutwali of the entire land but he made a gift of the land in favour of deity Shri Sumer Bihariji through his trustee Rajdadi Shri Chavanji Sahiba by a gift deed dated 17-10-1945. It was registered. Thereafter Fateh Shah who was daughter's son of Chand Shah had raised a dispute and had filed objections. Thereupon the area of 10238 sq. yards which is the subject matter of dispute was relinquished by Rajdadi Shri Chavanji Sahiba in favour of Fateh Shah on 5-10-1948 and that deed of relinquishment was registered. A suit for cancellation of the gift deed dated 17-10-1945 was filed on behalf of Muslim of Jodhpur against Thakur Shri Sumer Bihariji and Neneh Shah. In that suit the learned Senior Civil Judge, Jodhpur vide his judgment and decree dated 13-4-1957 held that the property was a wakf property but he dismissed the suit because no consequential relief for possession was claimed in the suit. An appeal against that decision was pending in the High Court. Then Neneh Shah defendant No. 12 had vide a sale deed in favour of Ram Kumar, since deed, and who is now represented by his legal representatives, had sold the land in dispute. The sale deed was not registered. The case of the plaintiff further is that Ramkumar afterwards had sold plots of lands to Kalusingh, defendant No. 2, and to Devilal and Labhmal, defendants Nos. 9 and 10. The sale deed was not registered. The case of the plaintiff further is that Ramkumar afterwards had sold plots of lands to Kalusingh, defendant No. 2, and to Devilal and Labhmal, defendants Nos. 9 and 10. When the suit was pending the appeal filed against the judgment and decree of Senior Civil Judge was decided by the High Court on 24-2-1970. 4. Learned counsel for the petitioners submitted that during the pendency of the suit Kalu Singh expired and the petitioners have been impleaded as his legal representatives in the year 1993. He submitted that the plaintiff respondent No. 1 obtained a decree passed on the basis of compromise from this Court on 24-2-1970 in which the petitioners defendants were not the party. On the basis of that decree the plaint was amended and thereafter amended written statements were also filed. The plaintiff also claims his title on the basis of this decree based on compromise whereby the property in dispute is to have been agreed by the parties in that suit to be a wakf property. In the written statement Kalusingh had challenged the compromise decree and pleaded that the decree was collusive as such issue No. 1 has been framed. He submitted that the lower Court has refused amendment on the ground that it was not relevant to the issue No. 1 which is to be decided by the trial Court. Review petition was also submitted but the same was also dismissed on 8-11-95. It has been prayed that the amendment sought may be allowed in the written statement as they are necessary for the purpose of determining the real questions in controversy between the parties. 5. On the other hand, learned counsel for the plaintiff respondents submitted that the suit has been pending since 1966 and issue No. 1 is such on which the defendants has to lead his evidence. He instead of pleading evidence on issue has been using the delaying tactics by moving applications one after another and is not allowing the Court to proceed with the case. He submitted that the proposed amendments are not necessary as issue No. 1 as it stands is wide enough to determine the real controversy. It is in the following words "Whether the decree passed by the Hon'ble High Court in Civil Appeals Nos. 32/58 and 64/58 on 24-2-1972 was collusive. If so, what is its effect?" 6. He submitted that the proposed amendments are not necessary as issue No. 1 as it stands is wide enough to determine the real controversy. It is in the following words "Whether the decree passed by the Hon'ble High Court in Civil Appeals Nos. 32/58 and 64/58 on 24-2-1972 was collusive. If so, what is its effect?" 6. The learned Additional District Judge on 3-8-1972 was of the view that the suit can be decided on the decision of issues Nos. 1 and 3 out of which No. 3 was purely a legal issue. Burden of issue No. 1 was on defendant, therefore, he ordered that first the evidence of parties will be recorded on issue No. 1 and the defendants shall lead their evidence first. The proposed amendment, in my view, is not required to be made to determine the real controversy in the matter. Issue No. 1, as stated earlier, is quite wide. I agree with the learned trial Judge that the amendment sought by the defendants petitioners is not relevant for the determination of real question of controversy. It appears that in this case the amendment sought is not bona fide and application has been submitted to further delay proceeding of the civil suit. In 1989 (1) RLW 518, Kapur Chand Singhal v. Gopal Prasad, it has been observed that when the amendment is not bona fide, it should be disallowed. 7. Consequently, the revision petition is hereby dismissed. 8. Delays in Courts are proverbial. This suit is one of such examples. It was filed in the year 1966 and the Court below has not been able to decide issue Nos. 1 and 3 uptil now on which the fate of the suit depends. Therefore, it appears necessary that some time may be prescribed for disposal of the suit. The trial Court is directed to record evidence on issue No. 1 day to day and decide the suit within six months from the date of receipt of record which may be transmitted to the trial Court immediately.Petition dismissed. *******