S. MAN SINGH Vs. RULIA AND OTHERS

JUDGEMENT

(1.) ON 4th December 1948 Rullia and five other persons instituted the suit out of which these proceedings have arisen for possession of land measuring 184 kanals 10 marlas of land with a share in the shamilat and two houses situate in Tikka Charangi, village Beroli, Tehsil Dera, District Kangra, alleging that Mt. Kokloo, widow of Sudaman, died on 5th March 1948 and that on her death the property in suit devolved upon them. On 28th February 1949, plaintiffs applied under O. 6, R. 17, Civil P. C., 1908, hereinafter referred to as the Code, for permission to plead that Rup Singh son of Sudaman was the last male holder of the property in suit. In the original plaint it was pleaded that Sudaman was the last male holder of the property in suit. In a brief order the trial Court has allowed the application for permission to amend the plaint on payment of Rs. 32 as costs. Man Singh defendant applies under S. 115, Civil P. C. for the revision of the order passed by the trial Court on 1st April 1919, permitting the plaintiffs to amend the plaint by stating that Rup Singh son of Sudaman was the last male holder of the property in suit.

(2.) MR . Daya Kishan Mahajan, learned counsel for the petitioner contends that under R. 17 of O. 6 of the Code it was not open to the trial Court to allow the plaintiffs to raise an allegation of fact inconsistent with their previous pleadings. Indeed, counsel contends that the plaintiffs have been allowed to introduce, by way of amendment, a case totally different from the case set up by them in the original plaint. In support of the contention raised, Mr. Daya Kishan Mahajan cites Ma Shwe Mya v. Maung Mo Hnaung,, A. I. R. (9) 1922 P. C. 249 : (48 Cal. 832) and Nasir -ud -Din v. Babu Lal, I. L. R. ( : 1945) ALL. 109 : (A. I. R. 1945 ALL. 197). In Ma Shwe Mya v. Maung Mo Hnaung, : A. I. R. 1922 P.C. 249 : (48 Cal. 832) the plaintiffs sued in February 1913, seeking specific performance of the verbal agreement made in 1912 by the defendant with him for transfer of certain land for oil -wells in place of the first agreement of 1903 and when the Court found that the verbal agreement was not proved the plaintiff applied to amend the plaint by claiming damages for breach of the contract of 1903. On these facts Lord Buckmaster said :