GAYA PRASAD Vs. RAM KISHAN

JUDGEMENT

(1.) CHALLENGE in this petition under Article 227 of the Constitution of India is to an order dated 22.12.2011 passed by Civil Judge Class I, Bina in Civil Suit No. 95 ?A/2010; whereby, an application under Order 6 Rule 17, Code of Civil Procedure, 1908 filed by the petitioner who is defendant in a suit for declaration and permanent injunction seeking amendment in written statement has been rejected. The contention put ?forth by learned counsel for the petitioner is that the amendment sought for in written statement was necessary for fair and complete adjudication of the controversy involved in the suit.

(2.) THE suit as apparent from the material on record by respondent No. 1 is for declaration and permanent injunction in respect of property bearing Khasra No. 192, 193 and 194 of Village Hiranchhipa Tahsil Bina. It is the contention of the plaintiff that, he and defendant No. 1 had been in possession of entire land and had been recorded over the same in revenue records. That, possession of their mother was also acknowledged since she was Karta of the family and upon her death the plaintiff and defendant No. 1 are the owners in possession. It is the contention that in January 2005 defendant No. 1 (petitioner No. 1) denied the plaintiff's title to the lands asserting his own title in entirety contending that half of the lands have been bequeathed by his mother in favour of defendant No. 2 (petitioner No. 2 herein). Alleging that will executed by his mother in favour of defendant No. 2 being forged and fabricated plaintiff has filed a suit for declaration and permanent injunction.

(3.) THE application was opposed by the respondents/plaintiffs. THE trial court by impugned order dated 12.12.2011 observed that issues having already been framed which include issue with respect to partition and amendment sought for by petitioners is with respect to partition which is a matter of evidence and that proposed amendment is not based on subsequent events, rejected the application. Challenging the aforesaid order, it is urged by learned counsel for the petitioner that trial court grossly fell in error in rejecting the application which resulted in failure of exercise of jurisdiction vested in it.