NARINDER SINGH Vs. JAGMOHAN SINGH

JUDGEMENT

(1.) This is an application underorder 6, Rule 17 for amend ment of the written statement. Defendant No. 1 has moved this application for introducing the following pleas in the written statement:

(2.) The plaintiffs filed the instant suit for partition of the property in question. In the written statement filed by defendant No. 1 there is not even a whisper about the alleged tenancy created by Smt-lqbal aur in favour of defendant No. 1. In the written statement it is inter alia pleaded that defendants No. I and 2 had jointly constructed the building in question at different points of time with their hard earned money and the plaintiffs did not contribute any amount towards the construction. It is, however, admitted that building was partly built by the sources derived from the earnings of the mother and claim received by her in respect of property left in Pakistan. It is note-worthy that defendants No. 1 and 2 in their statements recorded under Order 10, Rule 2 on April 4, 1991 and April 18,1991 did not set up the plea that the mother of the parties had created a tenancy in favour of defendant No. 1. On April 18, 1991 a preliminary decree was passed in the presence of all the parties to the suit. According to the preliminary decree each party was to get th share in the property. On April 25, 1991 a Local Commissioner was appointed to suggest the mode of partition of the property by metes and bounds. The Local Commissioner filed his report dated October 7,1991 in which four portions of the property were allotted to each of the four parties. On April 6,1992 the four portions of the property, as demarcated by the Local Commissioner, were directed to be allotted to the parties through draw of lots. Pursuant to the directions of the Court a draw of lots was held by the Local Commissioner. None of the parties filed any objections to the draw of lots or to the allotment of the shares. In the order dated July 17,1992 the Court recorded that the draw of lots was acceptable to all the parties and they have consented to allotment of portions to each one of them. Since the parties accepted the allotment the Court directed the construction of the dividing walls for actual demarcation of the portions as suggested by the Local Commissioner. As is evident from the above, after the passing of the preliminary decree the parties were consenting to the orders which had been passed by the Court. At no earlier stage defendant No. 1 set up the plea of tenancy.

(3.) It was only on September 27, 1994 that defendant No. 1 by means of an application, I.A. No. 8685/1991, under Section 151, Cr.P.C., set up the plea of tenancy. Defendant No. 1 on the basis of this plea sought modification of the order dated July 17, 1992 permitting the Local Commissioner to demarcate the respective areas and construct walls. The Court while rejecting the plea of defendant No. 1 observed as follows: