HARNEK SINGH Vs. PRITAM SINGH

JUDGEMENT

(1.) HARNEK Singh adopted son of Sarup Singh alias Sarupa filed suit against Sarup Singh alias Sarupa, Pritam Singh Surjan Singh to the effect that gift deed dated 28.2.1985 registered on 22.3.1985 alleged to have been executed by Sarup Singh alias Sarupa in favour of Pritam Singh and Surjan Singh defendants in respect of land measuring 142 kanal 12 marlas of land titled in the heading of the plaint situated in village Matheri Jatan, Hadbast No. 120 Tehsil and District Ambala is illegal, against law and ineffective and inoperative having no effect on the rights of the plaintiff so far as this land is concerned and is liable to be ignored and set aside and for joint possession of the aforesaid land and also for permanent injunction restraining Sarup Singh alias Sarupa from alienating the land measuring 43 kanal 7 marla as entered in jamabandi for the year 1979-80 situated in village Sondh Hadbast No. 114 and for permanent injunction restraining the defendants from interfering in any manner in the possession of the plaintiff over the whole land mentioned above in both the villages on the allegation that the plaintiff is the adopted son of Sarup Singh alias Sarupa. Sarup Singh alias Sarupa is an old man of 89 years of age. His wife is alleged to have died 3 years ago. Sarup Singh alias Sarupa and Smt. Prem Kaur had no child of their own and, therefore, they adopted him as their own child on 16th December, 1982. His adoption had the effect of transplanting him from the family of his birth to the family of his adoption and he became their son for all intents and purposes. If that was so, there was no occasion for Sarup Singh to execute any gift in favour of defendants 2 and 3. So-called gift was the result of coercion and misrepresentation. Sarup Singh alias Sarupa contested the suit urging that he never adopted the plaintiff as his son. As such he has no locus standi to file this suit. It was admitted that this gift deed was executed by him. It was denied that this gift was the result of undue influence, misrepresentation or coercion. Defendants 2 and 3 contested the suit of the plaintiff urging, inter-alia, that they are in possession of his land. During the pendency of the suit, an application was moved for the amendment of the plaint. By way of amendment, it was sought to be pleaded that after the institution of the suit, the plaintiff was dispossessed and as such he be allowed to sue for possession. Vide the impugned order, the Subordinate Judge refused amendment of the plaint.

(2.) LEARNED counsel for the petitioner submits that the basic issue on which the decision of the suit depends is whether Harnek Singh had been adopted by Sarup Singh alias Sarupa and further whether Sarup Singh alias Sarupa had executed any gift in favour of Pritam Singh and Surjan Singh and no amendment was being sought by the plaintiff so far as these basic issues are concerned whereas earlier his claim was for the grant of injunction restraining the defendants from interfering in any manner whatsoever in his possession of land of both the villages. After amendment, his prayer would be one for possession. Suit for declaration was instituted only in the year 1985. Application for amendment was made in the year 1992. In the year 1992, no right had become accrued to the defendants by the lapse of time. Such an amendment should have been allowed to the plaintiff. Even otherwise also the Court could take notice of subsequent events. If the Court had come to the conclusion that on the day when the suit was instituted the plaintiff was in possession, the plaintiff could be ordered to be put in possession in the event the suit was to be decreed. Proposed amendment, thus would not prejudice the defendants at all in their defence. As stated above, the defence of the defendants is that Harnek Singh was never taken in adoption by Sarup Singh alias Sarupa and further Sarup Singh alias Sarupa had executed gift deed in their favour while in sound disposing mind and in execution of gift deed, no coercion, undue influence or misrepresentation was practised on him.