HUKAM CHAND Vs. SHAM LAL

JUDGEMENT

(1.) Respondents Sham Lal and Sat Pal filed a suit to pre-empt the sale made by their father Phoola respondent of the land measuring 23 Kanals being the one-fourth share of the land measuring 32 Kanals. The description of the land given in the plaint was one-fourth share of 92 Kanals consisting of khewat No. 83, khatuni No. 90, rectangle No. 60 Killa Nos. 1, 2, 3, 8, 9 and 10, khewat Nos. 124 and 125, khatuni Nos. 147 and 148, rectangle No. 59, killa Nos. 5, 6, 7 and 8, khewat No. 261 khatuni No. 355, rectangle No. 59, killa No. 4 min.

(2.) The suit was opposed by the petitioners-vendees and one of the pleas raised by them, with which only we are concerned in this petition, was that the suit was bad for partial pre-emption, the plaintiffs having not sought possession of killa No. 9, rectangle No. 59. After recording evidence of the parties, the trial Court upheld the said plea of the vendees and dismissed the suit. The pre-emptors went in appeal against the decree of the trial Court and during the pendency of that appeal, they filed an application on July 28, 1978 under Order 6, Rule 17 of the Code of Civil Procedure for permission to amend the plaint so as to delete killa No. 8, rectangle No. 59 and substitute killa No. 9 instead thereof. This application was allowed by the learned Additional District Judge, Karnal vide order dated August 2, 1978. Aggrieved therefrom, the vendees have come up in this revision petition.

(3.) It is not disputed that the lower appellate Court has the jurisdiction to pass the impugned order but it is contended that the Court has acted illegally in the exercise of the jurisdiction in passing that order and reliance for this contention has been placed on the following observations of the Full Bench in Banta Singh and others v. Shrimati Harbhajan Kaur and others, 1974 PunLJ 328:-