GHANSHYAM SHARMA Vs. JADU NANDAN SHARMA

JUDGEMENT

(1.) THE order in challenge is one dated 06. 12. 2005, passed by the learned Civil Judge (Sr. Division), No. 3, in Title Suit No. 68 of 1999, rejecting the application of the petitioners'/plaintiff 's under Order 6, Rule 17 of the Civil Procedure Code (hereafter also referred to as the 'code'), seeking amendment of the plaint.

(2.) I have heard Mr. D. C. Sharma, learned counsel for the petitioner and Mr. O. P. Bhati, learned counsel for the opposite party.

(3.) THE run up of facts in brief leading to the instant petition has to be minuted. The petitioners instituted the aforementioned suit against the opposite party praying for a decree, inter alia for declaration of their right, title and interest in the property described in Schedule D to the plaint and permanent injunction restraining them from demolishing the godown or any part thereof, described in Schedule C thereto. It was averred that during the lifetime of the father of the petitioner/respondent No. 1, their ancestral property was partitioned on 04. 03. 1974, in course of which a godown measuring 31/ x 27/ fell in their share, as described in Schedule C to the plaint. The western portion thereof, was identified to be that of the petitioners and is the suit premises. The petitioners alleged that on 10. 03. 1999, all on a sudden the opposite party started demolishing the godown, which necessitated the institution of the suit with the reliefs, as above. In their written statement, the opposite party claimed that the eastern side of the godown fell in their share and as the other half thereof, remained intact, there was no cause of action of the suit. While the proceeding was thus pending, Smt. Mohini Devi Sharma (defendant No. 5), wife of the respondent No. 3, died on 25. 03. 2005. It is asserted that to perform the religious rites in connection therewith, the opposite party sought to temporarily use the petitioner's portion of the godown described in Schedule D on the condition; they would vacate the same immediately after the ceremony was over. Though, the petitioners on good faith permitted the use of their portion of the godown, the opposite party did not handover the vacant possession thereof, inspite of repeated requests. Situated thus, the petitioners submitted an application under Order 6, Rule 17 of the Code, praying for the following amendment: -