AMANULLA BAIG Vs. MAHABOOB JAIN

JUDGEMENT

(1.) HEARD Mr B. N. Ananthanarayana, learned Counsel for the revision petitioner and Mr. M. S. Javeen Ahmed, learned Counsel for respondents 1 to 8 and mr Shivaram, learned Counsel holding brief for Mr. N Dinesh Rao, learned Counsel for respondent No. 9.

(2.) THIS revision petition under Section 115 of Civil Procedure Code arises from the judgment and order dated 23. 10. 1998 whereby the Trial Court has refused to allow the amendment sought to be made in the written statement in Suit No, 11016/1994. The trial Court refused the amendment on the ground that the proposed amendment, if allowed, will take away the admissions made by said defendant No. 4 in his written statement. It is on this basis, the application for amendment has been rejected.

(3.) THE learned Counsel for the revision petitioner contended that the learned Court below wrongly assumed that amendment has a tendency to allow the withdrawal of any admission. The learned Counsel submitted that in the original written statement, the defendant very clearly admitted that Budan Baig by virtue of the fact that he made gift of five put of six shares in favour of his sons and retained with him one share of the property as owner. The admission is yet maintained. In the written statement, learned Counsel contended, what has been stated that Budan Baig gifted l/6th share of his property to each of his five sons i. e. , 5/6th share in favour of his sons and sons continued to be in possession of respective portion of the property as owners on the basis of the gift since April. 1972 when the oral gift was made. By amendment, learned counsel contended that an alternative approach has been made to the same facts raising the plea to the effect that the sons have prefected their title by adverse possession with respect of 5/6th shares in the property. As regards l/6th, defendants admitted, that it belong to Budan Baig and it may be separated.