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2015 DIGILAW 1436 (RAJ)

Pooran Krishna Sharma v. Nitin Dak

2015-08-03

ARUN BHANSALI

body2015
JUDGMENT 1. - This writ petition has been filed by the petitioner aggrieved against order dated 29.01.2015 passed by the trial court, whereby, the application filed by the petitioner under Order 6, Rule 17 CPC has been rejected. 2. The suit has been filed by respondent No. 1 to 4 for possession and permanent injunction against the petitioner; the suit was filed with the averments that the property in question was the joint property of Gauri Shanker and Surajmal; the said brothers executed partition deed dated 10.04.1946 wherein the suit property came to the share of Surajmal father of the petitioner and respondents No. 5 and 6; the mother of the petitioner and sisters executed a release deed dated 13.09.2011 in favour of the petitioner and respondents No. 5 and 6. Where after the property in question was transferred by the three brothers to the plaintiffs for a sum of Rs. 45,000,00/- and based on the said averments, the prayer was made seeking possession of a part of the suit property which was still in possession of the petitioner. 3. Petitioner filed written statement wherein by reply to the averments pertaining to the partition, no specific reply was given, rather the aspect was denied for want of knowledge. However, the execution of release deed by mother and sisters was admitted, qua the sale consideration of the plot in question. It was claimed that the same was settled at Rs. 95,000,00/- and only Rs. 45,000,00/- were paid. 4. Based on the pleadings trial court framed five issues and the matter was fixed for evidence of the plaintiffs. 5. Where after the petitioner filed application under Order 6, Rule 17 CPC seeking amendment in the written statement based on the ground that the petitioner while undertaking cleaning certain documents pertaining to the litigation relating to the suit property which took place in the year 1961-62 and even prior thereto were found wherein there is no reference to the partition deed, which clearly shows that the averments in the suit regarding partition between Gauri Shankar and Surajmal on 10.04.1946 are incorrect and where-after certain more amendments were also sought in written statement. 6. An application under Order 8, Rule 1 CPC was also filed for placing on record the documents said to have been found while cleaning. 7. The application was opposed by the plaintiffs. 8. 6. An application under Order 8, Rule 1 CPC was also filed for placing on record the documents said to have been found while cleaning. 7. The application was opposed by the plaintiffs. 8. The trial court after hearing the parties, came to the conclusion that the amendments sought was with a view to change the defence already taken in the suit and the amendment sought was not necessary for determining the issues involved in the suit and consequently, dismissed the application. 9. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the applications filed by the petitioner inasmuch as, the same was necessary for determining the real issues involved in the suit. It was contended that the finding by the trial court that petitioner was seeking to change the basis of defence is factually incorrect and, therefore, the order impugned cannot be sustained. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record. 11. The petitioner by way of amendment was on the one hand seeking to deny the execution of the partition deed dated 10.04.1946. However, he was reiterating the execution of the release deed by the mother and the sister simultaneously. Further the execution of the sale-deed has not been denied by the petitioner, the only plea raised is that the consideration paid is not as agreed between the parties and the signatures have been got done keeping the petitioner in dark. The plea sought to be raised by the petitioner regarding non-execution of the partition between Gauri Shanker and Surajmal has no implication on the present suit. Nowhere in the suit and/or a written statement any relief has been sought qua property of Gauri Shankar and even if the plea pertaining to partition as sought to be raised by the petitioner was taken on record, the same would not affect the issues involved. Further here is no ground to deny partition as petitioner has accepted execution of the release deed made by the mother and sisters qua the property which fell to share of their father on partition dated 10.04.1946 and in view thereto the trial court was justified in coming to the conclusion that petitioner was seeking to change the defence taken in the written statement. As noticed hereinbefore, the plea even if permitted, would not be necessary for determining the real issue involved. 12. In view of above discussions, there is no substance in this writ petition, the same is, therefore, dismissed.Petition Dismissed. *******