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2012 DIGILAW 309 (PNJ)

Darshan Singh v. Jagjit Singh

2012-02-22

M.M.S.BEDI

body2012
JUDGMENT Mr. M.M.S. Bedi, J.: - The plaintiff-petitioner is aggrieved by the order dated 20.9.2010, passed by the trial Court dismissing the application under Order 6 Rule 17 CPC, seeking the amendment of the plaint. 2. The plaintiff-petitioner had filed a suit for permanent injunction restraining defendant No.1, from alienating more than his 1/8th share from the suit property mentioned in the heading ‘A’ of the plaint by way of sale, exchange, gift or in any other manner on the basis of wrong revenue record. By amendment, the plaintiff-petitioner sought to incorporate the plea that defendant Nos.1 & 2, had sold the land more than their share despite an injunction order of the Court and that it was necessary to bring this fact before the Court and to seek a further declaration to ignore the sale deed executed during pendency of the case. The facts of the litigation are already pleaded in the suit but only some elaboration is required which is necessary for the proper adjudication of the case and to decide the real controversy between the parties. It is claimed that an application for correction of the revenue record submitted before the revenue authorities was dismissed after the institution of the case. Therefore, the plaintiff-petitioner is entitled for correction of the revenue record from the civil Court. 3. It is claimed that an application for correction of the revenue record submitted before the revenue authorities was dismissed after the institution of the case. Therefore, the plaintiff-petitioner is entitled for correction of the revenue record from the civil Court. 3. The plaintiff-petitioner wants to incorporate the following declaration in the plaint: - “Suit for declaration to the effect that the plaintiff has 456/1083 share and defendant No.1 has 1/8th share in the suit property mentioned in the heading ‘A’ of the plaint and that the jamabandi for the year 1979-80, 1984-85, 1998-90, 1994-95, 1999-2000, 2004-2005, are liable to be corrected accordingly.” He also wants to add para 3-A as follows: - “3-A. That the share of the parties are correctly recorded in the Jamabandi 1974-75 after that the plaintiff along with Mohinder Singh deceased purchased the 1/6 share of Faqir Singh and mutation bearing No.1014 to this effect was sanctioned, after that the plaintiff along with Mohinder Singh deceased also purchased the 1/6 share of Chahal Singh and mutation bearing No.1017 to this effect was sanctioned, in this way share of the plaintiff might have been recorded as 7/24 share but the share of the plaintiff was shown as ¼ after that the plaintiff along with Mohinder Singh deceased also purchased 1/6 share of Banto widow of Makhan Singh and mutation bearing No.1148 to this effect was sanctioned, after this the share of the plaintiff might have been mentioned as 9/24 share but the same is wrongly mentioned in jamabandi for the year 1984-85 as 1/3 share on the basis of this the subsequent jamabandies were also wrongly prepared when in the recent jamabandi the share of the plaintiff might have been shown as 456/1083 share on the basis of the property purchased and inherited by the plaintiff, the plaintiff filed an application to this effect before the Collector/SDM Fatehgarh Sahib at the instance of defendant No.1 without disclosing any reason which is highly illegal when the record of rights must have been upto date as per the share of the parties. Hence, the plaintiff is entitled to the declaration of his share in the suit property. Hence, the plaintiff is entitled to the declaration of his share in the suit property. He also wants to add para 4-A as follows: - “4-A. That the defendant No.1 sold the suit property in favour of defendant No.2 in spite of the knowledge of the injunction orders of the Hon’ble Court, the defendant executed sale deed bearing No.3401 dated 5.12.2007 to deprive the rights of the plaintiff hence the sale deed does not create any right or title in favour of the defendant No.2 the same is liable to be ignored.” 4. He also wants to amend the pleadings and prayer clause as follows: - “It is, therefore, prayed that suit of the plaintiff for declaration to the effect that the plaintiff has 456/1083 share and defendant No.1 has 1/8 share in the suit property mentioned in the head note “A” of the plaint and the jamabandis for the years 1979-80, 1984-85, 1989-90, 1994-95, 1999-2000 and 2004-05 are liable to be corrected accordingly and for permanent injunction restraining the defendant No.1 his servants and agents from alienating more than his share i.e., 1/8 share from the suit property mentioned in the head note ‘A’ of the plaint by way of sale, exchange, gift or in any manner, illegally forcibly on the basis of wrong revenue record may kindly be decreed with costs in the interest of justice.” 5. The defendant had opposed the above said proposed amendments on the ground that the amendments would change the nature of the case and cause of action. The trial Court has dismissed the application for amendment observing that the nature of the suit would be changed in case the amendment is allowed as the plaintiff has pleaded that his application for correction of the revenue record has been dismissed by the revenue authorities during pendency of the suit despite injunction order and that despite injunction order, the defendant Nos.1 & 2, have sold the land more than their share and as such, the plaintiff-appellant cannot be permitted to incorporate the relief of declaration that he has 456/1083 share and that defendant No.1, has 1/8th share in the suit land. 6. Counsel for the plaintiff-petitioner has contended that the petitioner wants to make amendment in view of the subsequent event of defendant having sold the property more than his share. 7. Mr. 6. Counsel for the plaintiff-petitioner has contended that the petitioner wants to make amendment in view of the subsequent event of defendant having sold the property more than his share. 7. Mr. M.L. Saggar, learned Senior Advocate, for the respondents has contended that the entire nature of the suit will change to the prejudice of the defendants in case the amendment is allowed. 8. I have heard the learned counsel for the petitioner as well as learned counsel for the respondents at length. The amendment sought for by the plaintiff as mentioned herein above would not, in any manner, change the nature of the suit nor the delay in seeking amendment would, in any manner, cause prejudice to the defendant. The main claim of the plaintiff-petitioner had been that defendant No.1 has got 1/8th share in the property mentioned in the heading of the plaint. Defendant No.1 having sold the property despite the injunction order and the subsequent event having cropped up warrant the incorporation of the new pleas and new relief of declaration by amendment of the pleadings which would be necessary for the final adjudication of the rights of the parties. The plaintiff-petitioner cannot be compelled to file a fresh suit by incorporating the circumstances which have arisen during pendency of the suit. 9. In view of above circumstances, the impugned order is hereby set aside. The present revision petition is allowed. The plaintiff-petitioner will be permitted to amend his plaint with corresponding right to the defendant-respondent to file amended written statement subject to costs of ‘ 10,000/- (rupees Ten Thousand Only) which will be paid by the plaintiff on next date of hearing fixed before the trial Court. The parties are directed to appear before the trial Court on the date already fixed. ---------0.B.S.0------------