ISHRO DEVI Vs. SUKMA

JUDGEMENT

(1.) THE petitioners have challenged the order dated 9.5.2014, dismissing their application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [for short 'the CPC] for amendment in the written statement.

(2.) THE plaintiff filed the suit for declaration that she is owner in joint possession of 1/2 share of the suit land measuring 52 kanals 11 marlas situated within the revenue estate of Village Aurang Shahpur, Tehsil Hansi now Tehsil Narnaund, District Hisar.

(3.) IN brief, one Sheo Dutt had two children, namely, Basheshar (son) and Prameshwari (daughter). Plaintiff is the daughter of Parmeshwari, whereas defendant No.1 (Nafe Singh) (since deceased) and defendant No.2 (Hawa Singh) are the sons of Basheshar. It is alleged that after the death of Sheo Dutt, both Basheshar and Prameshwari became the owners, to the extent of 1/2 share each of the suit property and entered into possession as well. According to the plaintiff, the suit land was being cultivated and managed by the family of Basheshar. She had requested the defendants in the month of July, 2007 to partition the suit land as she had lost faith in them but when they did not accept her request, she went to Halqa Patwari for obtaining the revenue records and came to know that entries in the revenue record have been changed on the basis of a mutation bearing No.919 dated 23.3.1984, without notice to her, on the basis of a civil court decree dated 6.4.1983 which has also been challenged in the suit on the ground that she had never appeared in the suit and neither engaged any counsel nor filed any written statement. She also challenged the entries in the revenue record showing defendants No.1 and 2 to be the owners of 1/2 share belonging to the plaintiff, as null and void. Defendants No.1 to 3 filed a joint written statement. In para No.14 thereof, it was averred that the plaintiff or her mother was never a co -sharer in the disputed land as Sheo Dutt had expired before the Hindu Succession Act, 1956 came into force, therefore, the estate of Sheo Dutt could not have been inherited by Prameshwari being a female and the mutation was wrongly entered by the revenue officials in the names of Basheshar and his sister Prameshwari to the extent of equal shares. It is also alleged that the plaintiff had herself suffered a decree on 6.4.1983 and mutation was sanctioned accordingly on 23.3.1984. On the pleadings of the parties, as many as 15 issues were framed. The parties led their documentary as well as oral evidence and the trial Court decided issues No.1 to 3 in favour of the plaintiff and issue No.14 against the defendants. Consequently the suit was decreed on 22.4.2010 and the Civil Court decree dated 6.4.1983 and mutation No.919 dated 23.3.1984 were set aside and the plaintiff was declared owner in joint possession of 1/2 share of the suit land and was held entitled for correction of the revenue entry in her favour. The defendants were restrained from alienating the suit land pertaining to 1/2 share of the plaintiff, in any way or manner. The defendants challenged the judgment and decree of the trial Court by way of appeal and during its pendency, an application was filed through an advocate on 3.1.2014 for amendment of the written statement to add preliminary objection No.15 to allege that the property in dispute was ancestral at the time when Sheo Dutt had expired, therefore, Prameshwari, mother of the plaintiff, had no right, title or interest in it. This application has been dismissed by the Appellate Court, inter alia, on the ground that neither the application seeking amendment of the written statement is supported by an affidavit of the parties concerned nor the applicants/defendants could prove that they were not aware of the mutations prior to the first week of November 2013 because not only the mutation No.179 is of 11.12.1935 but also it has already been produced by the defendant as Ex.D4. The Appellate Court had also observed that the written statement was filed on 29.2.2008, the suit was decreed on 22.4.2010, the appeal was filed on 26.5.2010 and the application is filed on 3.1.2014 without giving any plausible explanation for such a long delay.