HAZARA SINGH Vs. BANTA SINGH

JUDGEMENT

(1.) THE plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below, arising out of a suit for possession by way of redemption of the land.

(2.) THE plaintiffs alleged that one Banta Singh was the mortgagee of the suit land who transferred his right in favour of defendant Nos. 2 to 5 and one Ganda Singh. Ganda Singh has now expired and defendant Nos. 2 to 5 are his legal heirs. Defendant Nos. 2 to 5 have transferred their rights in favour of defendant No. 6. While giving the particulars of the mortgage, the date of mortgage is mentioned as 1940, name of the mortgagor as Mohan Singh son of Budh Singh, name of mortgagee as Banta Singh and mortgage money about Rs. 400/-. The learned trial Court dismissed the suit of the plaintiffs on the ground that the pleadings and the evidence is at variance as the particulars of the mortgage given in the plaint were at variance with the evidence led.

(3.) THE learned First Appellate Court has declined the applications on the ground that if the amendment is allowed, it will change the nature of the suit. In the suit, the mortgage sought to be redeemed is one allegedly made in the year 1940, whereas, the mortgage which is now sought to be made the subject-matter of the suit, is of the year 1922. It was initially pleaded that the mortgagor is Mohan Singh and now the mortgagor is alleged to be Mohan Singh and Sohan Singh. The amount of mortgage originally pleaded is Rs. 400/-, which is now alleged to be Rs. 2,000/-. The period of redemption was originally pleased (pleaded ?) as 8 years which is now alleged to be 25 years. Thus, it was concluded that the plaintiffs want to make altogether a new case under the pretext of amendment of the plaint, therefore, the amendment is not permissible. The Court also found that the period of limitation of redemption has already expired, therefore, the right to redeem stands extinguished. The appellants have challenged the said order of the learned First Appellate Court in the memorandum of second appeal. The appellants moved another application before this Court seeking amendment in the plaint as well. A reply has been filed by the defendants controverting the plea of the plaintiffs to seek amendment in the plaint. The learned counsel for the respondents has also argued that the plaintiffs have not challenged the order declining the amendment, by way of filing a revision petition and, therefore, the said amendment cannot be permitted to be disputed in appeal.