JAGRAM SHAKYA Vs. GOKUL PRASAD

JUDGEMENT

(1.) PLAINTIFF/respondent instituted a suit for partition and perpetual injunction with allegations that the plaintiff and defendants are children of a common father who owned a property situated at Naka Chandrabadni, naharwali Mata Road, Lashkar Gwalior. Their father died on 11-3-1977 in intestate condition. An oral family settlement was effected which was not in accordance with law. Plaintiff being owner to the extent of 1/4th share is entitled to his 1/4th share after effecting partition by metes and bounds. Decree for perpetual injunction has also been sought for restraining the defendants from alienating the disputed property without first effecting the partition and consequent allotment of 1/4th share to the plaintiff.

(2.) DEFENDANTS/petitioners submitted their joint written statement. They acknowledged their relationship as well as source of title. According to them, the family settlement was effected in due manner and the same was acted upon. Plaintiff is debarred from claiming any share contrary to the family settlement.

(3.) AN application for temporary injunction was submitted by the plaintiff which was dismissed by the learned trial Judge as well as by the learned lower appellate Court in the light of family settlement. Thereafter, the plaintiff/ respondent submitted an application under Order 6, Rule 17 Civil Procedure code for amendment at primary stage of the suit. By way of proposed amendment, plaintiff sought leave to delete the averments regarding oral family settlement. Instead, he sought leave to substitute averments to the effect that it was decided between the plaintiff and defendants that the parties would enjoy their respective portions which were possessed by them until a valid partition takes place. This application was opposed by the defendants/petitioners mainly on the ground that it amounts to withdrawal of admission.