KHATUN BEE Vs. GAPPU KHAN

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India petitioners are aggrieved by the order dated 05/05/2015 passed by X Additional District & Sessions Judge, Ujjain in Civil Suit No.31 -A/12, dismissing the application filed under Order 6 Rule 17 of the C.P.C by plaintiff /petitioners.

(2.) Briefly stated the facts of the case are that the plaintiff/respondents no. 1 to 4 had filed a suit for declaration, partition and permanent injunction against respondents no.5 to 22 regarding the agricultural land situated at village Naleshree, Tehsil Tarana, District Ujjain. The said land belong to agriculturist Kunwar Ji and the respondents no.1 to 5 claimed that they had one third (1/3) share each in the said land and hence had filed a suit for declaration. Whereas the petitioners 1 to 6 did not have any right, title or interest in survey no.819 rakhba 0.70, from survey no.1018 rakhba 1.23 admeasuring 0.47 and from survey no.1048 rakhba 0.99, total land admeasuring 2.16 hectare and petitioners 1 to 5 claimed that respondents no.5 to 9 had entered into an agreement on sale which was not binding on them and the respondents did not have a right to sell the said land. The petitioners claim that they were the sole owners of the land and had, therefore, opposed the suit filed by the respondents no.1 to 4. Petitioners prayed for dismissal with disclosure to the above said effect and it was the content of the application under order 6 rule 17. Two applications, to the effect were filed and both the applications were dismissed by the impugned order and hence the present petition.

(3.) Counsel for the petitioner vehemently urged that the Trial Court had erred in rejecting the application primarily because plaintiff were having knowledge that the land had already been sold by agreement dated 02/09/1980 and after a long period of almost 35 years the facts were being produced. Regarding I.A. No.7, the respondents want to add paragraph no. 19 -A in the written statement to indicate the fact that by agreement dated 02/09/1980, the deceased plaintiff Gappu Khan and his elder brother Ismaile and Mohhammed's wife and son Yasin had entered into an agreement with agriculturists Moreshwari and Devdatt for survey no.814, 821, 818 1049 and 278 in village Naleshree. However, on death of the seller, their L.Rs had entered into different agreements of sale with the family members and they were in the possession separately since L.Rs of Moreshwari and Devdatt had entered into separate agreements with separate family members. But this fact was suppressed by plaintiff and hence the respondents wished to include this effect in their written statement.