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2018 DIGILAW 291 (MP)

Banshilal v. Gheesalal

2018-03-09

VIVEK RUSIA

body2018
ORDER 1. The petitioners have filed the present petition being aggrieved by order dated 7.9.2015 passed by Civil Judge, Class-I, Manasa, District Neemuch in COS No. 34-A/2013 by which application seeking framing of additional issues has been rejected. 2. The plaintiffs/respondents filed the suit for grant of permanent injunction in respect of the land Survey Nos. 848, 1058 and 1068 recorded in their names in the revenue records. The plaintiffs have alleged that the petitioners/ defendants are trying to dispossess and trying for mutation of their names in the revenue records. The present petitioners filed the written-statement by submitting that the land Survey Nos. 848 and 1068 is not a disputed land and the land Survey No. 1058 does not belong to the plaintiff alone and they are in joint possession with plaintiff since 40-50 years on the basis of mutual family arrangement. 3. After filing the written-statement, the plaintiffs filed an application under Order VI rule 17 of CPC. The said application was allowed. Thereafter, the petitioners filed an application under Order XIV rule 5 of CPC framing additional issues. The plaintiffs filed the reply opposing the additional issues and the learned trial Court vide impugned order dated 7.9.2015 has rejected the application on the ground that the plaintiff has filed affidavits and the proposed issues are already covered under the issues already framed. Hence, the present petition before this Court. 4. The plaintiffs filed the suit seeking permanent injunction that the defendants be restrained not to interfere into the possession and restrained to get mutation in their favour. The defendants filed the written-statement along with counter claim. According to the defendants, the plaintiffs and the defendants are from one family and they are in jointly possession over the some of the suit land. The land Survey No. 1058 was wrongly recorded in the name of Late Nandlal and after his death the same has been recorded in the name of the plaintiffs. The husband of the plaintiff and the defendant Nos. 1 and 2 and father of defendants No. 4, 5 and 6 are real brothers. By order dated 7.1.2015 the amendment sought in the plaint has been allowed. The amendment was sought on the basis of counter claim submitted by the defendants. The issues were framed on 27.11.2013 i.e. before the amendment was allowed in the plaint. 1 and 2 and father of defendants No. 4, 5 and 6 are real brothers. By order dated 7.1.2015 the amendment sought in the plaint has been allowed. The amendment was sought on the basis of counter claim submitted by the defendants. The issues were framed on 27.11.2013 i.e. before the amendment was allowed in the plaint. As stated above, the suit was filed only seeking permanent injunction. Therefore, issues were framed on the basis of that limited pleading and relief claimed in the plaint and the pleading in the written-statement as well. Thereafter the plaintiff has got amended his plaint. Therefore, the defendants have filed an application proposing some additional issues. After filing written-statement and counter claim and amendment in the plaint, the scope of dispute between parties has been enlarged and suit between the plaintiffs and the defendants has virtually become a partition suit between . The issues of family settlement undertaken 40-50 years back has also cropped up between the parties. The basic nature of the suit has virtually been changed. Therefore, the issues proposed by the defendants are also necessary to adjudicate the dispute between the parties. 5. Hence, the impugned order is hereby seta side and the issues proposed by the defendants are hereby allowed. The matter is remitted back to the trial Court to frame additional issues as proposed by the defendants and the plaintiffs are at liberty to file additional affidavits of evidence on the basis of the additional issues. 6. The petition is allowed.