AVTAR SINGH Vs. FAQIR SINGH

JUDGEMENT

(1.) The order of the trial court dated 29.3.2005 has been challenged by the defendant -petitioners vide which an application of the plaintiff -respondent for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908 has been allowed. The plaintiff -respondent has filed suit in the year 1992 for declaration to the effect that he is owner in possession of the suit land and the defendant -petitioners have no concern with it. The sale deed dated 7.2.1992 allegedly executed by defendant -petitioner No. 1 in favour of defendant -petitioner Nos. 2 to 4 and another has also been challenged. A further prayer has been made for permanent injunction restraining the defendant -petitioners and another from alienating the suit land in any manner and dispossessing the plaintiff -respondent forcibly from the same. When the evidence of the parties was completed and the case was posted for arguments an application under Order VI Rule 17 of the Code was filed which sought to explain as to how the excess land has been shown in the revenue record in the name of Pal Singh prede -cessor -in -interest of defendant -respondent No. 1 who has sold the same to defendant -petitioner Nos. 2 to 4 and another. The case of the plaintiff -respondent is that defendant -petitioners was not owner of the property in dispute and he had no right to execute the sale deed in favour of defendant -petitioner Nos. 2 to 4 and another because it has been alleged by way of amendment that the predecessor -in -interest of defendant -petitioner No. 1 Pal Singh was owner to the extent of 95 Kanals 9 Marias only whereas he had been shown to be owner in respect of 139 Kanals 6 marlas in the revenue record. Therefore, 44 Kanals excess land has been shown in his name. The trial court has permitted the amendment on the ground that it would not change the nature of the suit which was to elucidate the pleadings already made by the plaintiff -respondent. Moreover, it has been recorded that plaintiff -respondent was not to adduce any evidence for amendment and as such it would not lead to do -novo trial. The observations of the trial Court in this regard read as under:

(2.) After hearing the learned counsel and perusing the impugned order I am of the considered view that no interference of this Court in exercise of jurisdiction under Article 227 of the Constitution is called for. The plaintiff -respondent has been permitted to explain in detail as to how the predecessor in interest of defendant No. 1 were shown to be owner of excess land in the revenue record whereas he was not the owner to that extent. A perusal of the application for amendment dated 21.2.2005 (Annexure P.3) would show further details. All these facts are sought to be proved on the basis of the record. The defendant -petitioner has to be granted an opportunity to file the amended written statement. Only thereafter it would be determined whether any issue would rise necessitating further trial. To that extent the order of the trial Court would be deemed to be modified because it cannot be concluded at this stage whether an issue would arise or not because no written statement to the a mended plaint by the defendant -petitioners have been filed so far.