RAHIM DIN Vs. FAQIR MOHAMMAD

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings recorded by both the Courts below holding that the plaintiff- respondent is the real brother of the defendants-appellant and is entitled to 1/4th share in the property in question. Therefore, suit for possession was decreed and preliminary decree for possession of 1/4th share in the property in dispute through partition was passed in favour of the plaintiff-respondent. The defendants-appellant have claimed that the following substantial questions of law would arise for determination of this Court :

(2.) BRIEF facts of the case are that the plaintiff-respondent filed a suit for possession through partition of 1/4th share of two houses detailed as under :

(3.) FEELING aggrieved, the defendants-appellant filed an appeal before the lower Appellate Court. The arguments in the aforementioned appeal were concluded on 7.2.1979 and orders were reserved. However, on 8.2.1979, the defendants-appellant filed an application under Order VI Rule 17 of the Code seeking amendment of the written statement with permission to plead that there has been a partition between the parties and in terms thereof the plaintiff- respondent is not entitled to the share in the houses. The aforementioned application was dismissed by the learned lower Appellate Court vide order dated 13.11.1979, holding that a new plea was sought to be introduced by the amendment which would completely change the nature of the defence. The learned lower Appellate Court has referred to various judgments and concluded in the aforementioned terms in its order dated 13.11.1979, as is discernible from the following extract :-