DURGA SINGH Vs. KAMLA DEVI

JUDGEMENT

(1.) This petition under Section 115 of the Code of Civil Procedure, 1908 (hereafter referred to as the Code) has been filed against the order dated 21.8.1999 passed by the learned Sub Judge, Ghumarwin in Civil Suit No. 70/1 of 1993/90 whereby the application under Order 6 Rule 17 of the Code moved by the plaintiffs petitioners (hereafter referred to as the plaintiffs) for amendment of the plaint has been dismissed.

(2.) Brief facts leading to the presentation of this revision petition are that the plaintiffs have filed a civil suit for permanent prohibitory injunction against the original defendant Rattan Singh, since deceased, and whose legal representatives - defendants - respondents 1 to 4 (hereafter referred to as the defendants) have been brought on record. The relief of injunction has been claimed on the averments that Thola Singh, the predecessor in interest of the parties to the suit, was owner of the land in suit as detailed in Para 1 of the plaint. After the death of Thola Singh and one Kartar Singh, father of plaintiffs Nos. 9 to 11, the suit property was mutated in the names of plaintiffs Nos. 1,2,7,9 to 11, defendant No.l and one Smt. Shankari Devi, widow of Thola Singh, deceased. However, defendant No. 1 having become very greedy person is bent upon to get the whole property left behind by said Shri Thola Singh. To achieve this purpose, defendant No.l had applied to the forest department for grant of sanction to extract resin from the cheel trees standing on the suit land and is also bent upon to cut and remove the trees and other produce from the land in suit to the exclusion of plaintiffs and proforma defendants. Hence the suit.

(3.) Deceased defendant No. 1 contested the suit and in his written statement, apart from denying the claim on merits, raised the preliminary objections that the suit is not maintainable; that the plaintiffs have no cause of action and locus standi to sue; that plaintiffs are estopped from filing the suit by their own acts and deeds; that the suit is bad for mis -joinder and non -joinder of necessary parties; that the Court has no jurisdiction to hear and decide the suit and that the suit has not been properly valued to purposes of Court fee and jurisdiction. On merits, it has been claimed that the mutation as alleged though was attested but a revision arising out of such attestation is still pending before the Commissioner. It is further claimed that Thola Singh deceased had divided his property amongst his sons, daughters, daughters - in - laws and wife and at the time of such partition, the suit land had fallen to the share of Thola Singh who executed a Will on 15.8.1980 registered with the Registrar on 19.5.1990 after it was contested by the plaintiffs for 8 years. It is, therefore, claimed that the defendant is the sole successor to Thola Singh by virtue of the Will and thus, the claim as made out in the plaint has been denied.