SAMIE AHAMAD Vs. FATEHUDDIN

JUDGEMENT

(1.) Present petition is filed assailing the judgment and order dated 31.07.2009, passed by the Civil Judge (Senior Division), Haridwar as well as judgment and order dated 16.01.2012, passed by the 6th Additional District Judge, Haridwar whereby amendment application moved by the plaintiff/petitioner herein to carry out the amendment in the plaint of O.S. No. 249 of 2002 was dismissed and revision arising therefrom was also dismissed by the Revisional Court. Brief facts of the present case, inter alia, are that plaintiff petitioner herein has filed suit for permanent prohibitory injunction and possession, being O.S. No. 249 of 2002, Sarnie Ahamad Vs. Fatehuddin and others in the Court of Civil Judge (Senior Division), Haridwar, inter alia, stating therein that property 'Schedule-A' situated in Mohalla Kassabaan Jwalapur, District Haridwar was earlier owned by HasmatuUa, father of the plaintiff petitioner herein as well as grand father of defendants/respondents herein; Hasmatulla was having three sons, namely, Sarnie Ahamad/plaintiff petitioner herein, Yamin and Yaseen, father of the present defendants; after the death of Hasmatulla, property was inherited by his three sons, namely, Sarnie Ahamad/plaintiff petitioner herein, Yamin and Yaseen; Sarnie Ahamad, plaintiff petitioner herein, Yamin and Yaseen mutually partitioned the property 'Schedule-A' and in the mutual partitioned, 'Schedule-B' came into the share and possession of the plaintiff Sarnie Ahamad while property, 'Schedule-D' came into the share and possession of Yamin and property Schedule-C came into the share and possession of Yaseen; Yamin sold his share in favour of Yaseen; after the death of Yaseen, property 'Schedule-C' and 'D' was inherited by the defendants, being sole legal heirs of Yaseen; defendants S/o. Yaseen are in possession of the property 'Schedule-C' and 'D', however, defendants want to grab forcefully property 'Scheduled-B' which came into the share and possession of the plaintiff; therefore, defendants be directed not to make any interference in the possession of the plaintiff over the property 'Schedule-B' and, in case, defendants are found to have encroached upon the property 'Schedule-B', they should be dispossessed from property 'Schedule-B' or part thereof.

(2.) Defendants respondents herein have preferred their written statement to the plaint and have stated that this is true that Hasmatulla, father of the plaintiff and grand father of the defendants was the sole owner of the property, in question, i.e. 'Schedule-A', Mohalla Kassawaan Jwalapur; however, during his lifetime, he has gifted the property orally (Jubani Hiba) in favour of the Yaseen, father of the defendants and from the pre-independent era, Yaseen was in exclusive possession of the entire property 'Schedule-A' and plaintiff has never been in possession of the property 'Schedule-A'.

(3.) After framing of the issues, evidence of the plaintiff has commenced and plaintiff has appeared in the witness box for the purpose of cross examination. Thereafter, plaintiff has moved amendment application seeking amendment to the effect that property, in question, is still joint, therefore, it may be partitioned. Both the Courts below were pleased to observe that initially plaintiff has taken plea that property was mutually partitioned and property 'Schedule-B' came into his share and possession while property mentioned in 'Schedule-C' and 'D' came into the share and possession of Yaseen and Yamin and Yamin has sold his share to Yaseen. However, now vide proposed amendment, plaintiff wanted to show that property is still joint, therefore, amendment sought cannot be allowed.