JAI BHAGWAN Vs. BACHHI RAM DIMRI

JUDGEMENT

(1.) HEARD Shri Sharad Sharma, the learned senior counsel duly assisted by Shri Kovid Bhatt, the learned Counsel for the Defendants/Petitioners and Shri Arvind Vashisth, the learned Counsel for the Plaintiffs/Respondents.

(2.) THE Plaintiffs/opposite party filed a suit for specific performance in the year 1993 praying that the Defendant Nos. 1 to 4 be directed to execute the sale deed in favour of the Plaintiffs. The suit was filed on the premise of an execution of an unregistered agreement of sale by Defendant No. 1 in favour of the Plaintiffs. It was alleged that the Defendant No. 1 had made some kind of an internal arrangement to sell the property to Defendant Nos. 2, 3 and 4. Subsequently, the plaint was amended in the year 2001 and the relief clause was also amended wherein a decree for specific performance was sought against Defendant No. 1 for possession.

(3.) SHRI Sharad Sharma, the learned senior counsel submitted that the relief of possession cannot be granted in favour of the Defendant Nos. 3 and 4 when there was no relief for specific performance against them, especially, when the sale deed dated 15/12/1992 had been executed by Defendant No. 1 in their favour which sale deed has not been questioned by the Plaintiffs nor any prayer has been made for its cancellation. The learned senior counsel submitted that if the sale deed was not questioned nor challenged by the Plaintiffs, the question of giving relief of possession over the said property does not arise. The learned Counsel submitted that the prayer for amendment of the plaint seeking the relief of possession against the Defendant Nos. 3 and 4, namely, the Petitioners cannot be granted and that the amendment application could not have been allowed by the court below. The learned Counsel also placed reliance upon Rule 37 of the General Rule Civil, which stipulated that where an amendment application is allowed, all consequential relief should be incorporated. In that scenario, the leaned counsel submitted that once an amendment was granted where the relief of specific performance was incorporated in the year 2001, all consequential amendment for relief of possession should have been incorporated at that stage and, consequently, the second amendment application should not have been allowed.