VEERENDRA PRATAP SINGH Vs. SANJAYA KUMAR TIBUDE

JUDGEMENT

(1.) The present appeal is filed under sec. 104, Civil Procedure Code read with Order 43, Rule 1(u) of the Code of Civil Procedure (in short 'CPC'), challenging the legality and validity of the order dtd. 21/5/2010 passed by 9th Upper District Judge, Jabalpur, in Miscellaneous Appeal No. 24-A/2009 whereby the appeals filed by the defendants have been partially allowed and the judgment and decree dtd. 31/7/2007 passed in Civil Suit No. 44-A/2004 by 3rd Civil Judge, Class I, Jabalpur has been set aside and after allowing the application under Order 6, Rule 17, Civil Procedure Code filed by the plaintiff, the case has been remanded back by imposing cost of Rs. 2500.00 on the plaintiff. The plaintiff has been permitted to amend the plaint and the present appellant/defendants have been given liberty to incorporate necessary amendments in the written statement.

(2.) The brief facts, in short, are that the respondent/Plaintiff Sanjay Kumar Tibude filed a suit against the appellant and other defendants seeking a relief of declaration that he is the owner in possession of the suit plot on the basis of sale deed executed by the defendant Co-operative Society in his favour and also prayed consequential relief of injunction restraining the respondent No. 3/present appellant from interfering from the possession of the plaintiff of the suit plot/land. The appellant filed written statement and denied the claim and submitted that the plaintiff was not in possession of the suit plot and his title is also defective. It was stated that since the plaintiff could not carry out the construction as per the condition of the allotment within a stipulated period, therefore, the plot has been sold to him and he is a subsequent purchaser. He also claimed that he is in the possession of the plot. An application for amendment was filed by the plaintiff on the basis of subsequent development but the same was rejected by the trial Court however, the suit was decreed in favour of the plaintiff for declaration.

(3.) The defendant No. 3 and the other defendant Co-operative Society filed appeal against the judgment and decree. It is stated that a counter claim was also filed by the plaintiff but the same was rejected. In the appeal, the plaintiff filed an application for amendment under Order 6, Rule 17, Civil Procedure Code claiming a relief for restoration of his possession on the allegations of the subsequent events during pendency of appeal that the present appellant/defendant No. 3 has raised a construction.