SAROJ PRIYADARSHANI Vs. RANBIR SINGH

JUDGEMENT

(1.) The respondent filed a suit for declaration and permanent injunction on 19.11.2002 against five defendants in respect of land measuring one bigha eight biswas situated in Revenue Estate of Village Nangli Sakrawati, Delhi. The land was stated to have been purchased by the respondent vide a registered sale deed from original defendants no. 2 to 5 who were the sons and daughters of Sh.Bhagat Ram. Respondent claimed to be in possession of the land of which mutation had been done in the revenue record. The respondent claimed that a small boundary wall was constructed by him as was permissible under the Delhi Land Reforms Act when original defendant no.1 started claiming rights in the land forming part of the khasra no.195/2 measuring one bigha on the basis of some forged and fabricated documents. Since attempt was made by original defendant no.1 to dispossess the respondent, on 18.11.1992 a suit for declaration and injunction was filed in order to establish the title of the respondent and to preserve his peaceful possession. It may be stated that the present petitioners are the legal heirs of late Sh.Kashmiri Lal-original defendant no.1. Sh.Kashmiri Lal contested the suit by filing a written statement along with the counter claim. The possession of the respondent in the suit land was denied and Sh.Kashmiri Lal claimed in the counter claim that he was entitled to a decree for declaration of absolute ownership of the land in plot no.195/2. The original defendants no.2 to 5 were proceeded ex parte and did not contest the suit. The allegation of late Sh.Kashmiri Lal is that they were colluding with the original plaintiff.

(2.) The trial court framed issues on 03.08.2001 which were again re-framed on 31.01.2002 and again on 12.08.2004 At this stage an application was filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) to amend the plaint. In the application it is averred that original defendant no.1 had filed another suit on the basis of a sale deed of 1975 and it had come to the knowledge of the plaintiff that the two sale deeds relied upon dated 02.05.1973 and 10.05.1975 were forged and fabricated documents and were void ab initio. Original defendant no.2 had no authority to execute the sale deeds in 1973. It is further alleged that original defendant no.5 was a minor in 1973 and was incapable of executing a general power of attorney. A declaration is sought to the effect that the two sale deeds as well as the general power of attorney dated 13.03.1972 were null and void. The aforesaid application was contested by original defendant no.1, predecessor in interest of the petitioners herein. Apart from the general objections it has been stated that the defendant no.1 had specifically relied upon the power of attorney dated 13.03.1972 in the written statement which was not even challenged by the plaintiff. In the replication no defence was raised and, thus, the proposed amendments are barred by limitation and, therefore, the amendment cannot be allowed. In addition, the original defendant No. 1 stated that even after perusal of the written statement filed by the defendant no.1, the original plaintiff took no steps to amend the plaint and the plea that the two documents came to the notice of the plaintiff in the year 2004 was not tenable as the written statement is dated 16.12.1992.

(3.) The plaintiff did not dispute that there was delay in filing the application but raised the plea that no prejudice would be caused to defendant no.1 especially since the plaintiff had already sought a decree to the effect that he be declared owner of the suit property. Thus, if the said relief was to be granted the documents executed in favour of defendant no.1 were in any case liable to be declared null and void. The trial court in terms of the order dated 18.07.2005 has allowed the application of the respondent and thus the petitioners aggrieved by the same have filed the present proceedings under Article 227 of the Constitution of India.