ARBINDER PAL SINGH Vs. JOGINDER KAUR & OTHERS

JUDGEMENT

(1.) This revision is filed against the order dated 26.02.2014 ( Annexure P-5) passed by learned Additional Civil Judge( Sr. Divn.), Batala vide which an application of the plaintiff under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint and seeking the relief for specific performance regarding property mentioned in the Schedule B in addition to the relief already mentioned in the head note of the plaint, was dismissed on the ground that the oral agreement is alleged to have been executed in the year 1980. The suit was instituted on 27.10.2005 and that no reasonable explanation has been given while waiting about 08 years. The lower court also observed that case is now fixed for arguments. Hence, the amendment at the said stage was disallowed.

(2.) It comes out that as per the copy of the plaint annexed with the present revision, plaintiff had filed a suit for declaration to the effect that he is owner in possession of the property mentioned in the schedule (A) and (B) while defendant No.3 is the owner in possession while property mentioned in Schedule C. Further declaration is sought that defendant No.1 has got no right to proceed with the partition application pending in the Court of Assistant Collector, Ist Grade Batala. The suit was filed on 27.10.2005. It was pleaded in the suit that the property of Niranjan Singh father of the parties, was succeeded by plaintiff/defendant Nos.2 and 3 as his sons, defendant No.1 as his daughter and Avtar Kaur as his widow. Vide agreement dated 10.07.1980, which is stated to be oral one, the defendant No.1 and Smt. Avtar Kaur sold their share in favour of the plaintiff and defendant Nos.2 and 3, who executed a memorandum of family partition and part payments of the amounts were adjusted as per the memorandum of family partition. After the execution of said four agreements dated 13.09.1980, plaintiff and defendants no. 2 & 3 became full fledged owners in possession of the property mentioned above. It is stated that it was mutually agreed between the parties and that defendant No.1 and Smt. Avtar Kaur will be entitled to the remaining amount of Rs. 10,550/- as per agreement referred above. Defendant No.1 and Smt. Avtar Kaur signed and thumb marked the agreement dated 10.07.1980. Smt. Avtar Kaur expired on or about 02.06.1982 leaving behind the plaintiff and defendant Nos. 1 to 3 as her legal heirs. After her death the amount due was payable by the plaintiff and defendant No.2 to defendant No.1, which comes to Rs. 4400/-. It was further pleaded that Smt. Avtar Kaur and defendant No.1 had surrendered the possession to the plaintiff and defendant nos. 2 and 3 on 10.07.1980 as owner. Defendant No.2 sold the property mentioned in the schedule (B) in favour of the plaintiff for a sum of Rs.85000/- and received the entire amount vide receipt dated 04.05.1992 and delivered the actual physical possession to the plaintiff.

(3.) By way of the present amendment, plaintiff wants to seek specific performance directing defendant No.2 to specifically perform the contract effected by an oral agreement entered into by defendant No.2 by transferring the land in Schedule (B) by executing a legal and proper document and sale deed of the said land. Following para is sought to be added:-