GUJARIYA AND OTHERS Vs. DASHMATIYA AND OTHERS

JUDGEMENT

(1.) Shri Arvind Pathak, learned counsel for the petitioners.

(2.) Learned counsel appearing for the petitioners submits that the trial Court has committed grave illegality in dismissing the application. It is urged that the impugned order has been passed without considering the legal and factual aspect that the proposed amendment is in the nature of clarification, and if allowed, will cause no harm to the defendants.

(3.) On examination of the record and the impugned order, it is seen that the petitioners/plaintiffs have instituted a suit on 28.03.2003 under Sections 34 and 38 of the Specific Relief Act for declaration and permanent injunction in respect of the suit land, pleading that plaintiffs and defendants are offsprings of common ancestor. Apart from the suit lands which are ancestral, other lands have also been purchased. In 1945 a partition took place between the plaintiffs and the defendants and thereafter both plaintiffs as well as defendants are in possession and cultivating their respective shares. Further, it is the case that some lands which fell into the share of plaintiffs were recorded in the revenue record in the names of defendants. Due to financial constrain, the plaintiffs could not get their names mutated on these lands, taking advantage of which, the defendants tried to dispossess them. Hence, the suit for declaration that plaintiffs are owner and in possession of the suit lands and entitled to get their names mutated in the revenue records and to further restrain the defendants from interfering in their possession.