KUNHALIUMMA Vs. RABIUMMA

JUDGEMENT

(1.) This Revision is by defendants 16 to 26, in a suit for partition. The partition was of the estate of one Moyi Haji, the father of the plaintiff, defendants 1 to 6 and one Mammu Haji the husband of defendant No. 16 and the father of defendants 17 to 26. Various items of properties were included in the plaint schedule. Defendants 16 to 26 filed a written statement that the plaint schedule properties belonged to Moyi Haji, but that there was already an oral partition effected among his heirs and hence the suit for partition was not maintainable.

(2.) Evidence was commenced in the suit. PW-1 was examined on behalf of the plaintiff. At that stage, defendants 16 to 26 sought an amendment of their written statement by filing I.A. 6764 of 1996 seeking to introduce a plea that plaint schedule item No. 22 originally belonged to one Pocker as per a lease deed, Document No. 679 of 1943 and that the said right was purchased by Mammu Haji, their predecessor under document No. 1349 of 1948. In other words, they wanted to set up an exclusive title as lessee in their predecessor in interest against their original stand that all the suit items belonged to Moyi Haji, the father of Mammu Haji, the plaintiff and defendants 1 to 6. The application was opposed by the plaintiff and defendant No. 2. They contended that an amendment which had the effect of withdrawing an admission made in the written statement that the title to item 22 also rested in Moyi Haji and hence part of his estate available for partition and the introduction of a totally different case that the title to that item was with Mammu Haji, their predecessor, cannot be permitted. They relied on the decisions of the Supreme Court in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram ( AIR 1977 SC 680 ) and Jagannadha v. Chander Bhan ( AIR 1988 SC 1362 ) in support of their argument. Defendants 16 to 26 relied on the decision in Basavan Jaggir Bhobi v. Sukhnandan Ramdas Choudhary (1995 Supp. (3) SCC 179) in support of their plea that such an amendment of the written statement can be allowed, even if a contrary stand is attempted to be adopted. The Court below rejected the prayer for amendment by taking the view that it was not only an incorporation of an inconsistent plea but it was a deprivation of an admission to the benefit of the plaintiff and 2nd defendant.

(3.) The suit was for partition on the basis that plaint item No. 22 also belonged to Moyi Haji and hence was available for division among his heirs. This was not disputed by defendants 16 to 26. It can also be said that they admitted the title of Moyi Haji over that item. Now defendants 16 to 26 want to plead that the title to that item exclusively vested in their predecessor-in-title, Mammu Haji son of Moyi Haji. They are setting up two registered documents in support of their present plea.