BIMLA DEVI Vs. TIHNU DEVI

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order dated 23.3.2018 passed by the Civil Judge, Anni, District Kullu, Himachal Pradesh in Case No. 26-1 of 2010 titled Tihnu Devi vs. Bimla Devi, whereby an application under Order 6 Rule 17 read with S. 151 CPC, having been filed by the respondentplaintiff (hereinafter, 'plaintiff') came to be allowed, petitionerdefendant (hereinafter, 'defendant') has approached this court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set aside the aforesaid order.

(2.) Facts, as emerge from the record are that the plaintiff filed a suit for possession of half share in Khasra No. 29 measuring 11 Bigha in Khewat Khatauni No. 255/307 in Mohal Bari, Tehsil Nirmand, District Kullu, Himachal Pradesh, in the court of learned Civil Judge, Anni, averring therein that after death of father of the plaintiff, when mutation of inheritance was taken up for registration by Assistant Collector 2nd Grade, Nirmand on 23.1.2009, defendant produced a registered Will alleged to have been executed by father of the plaintiff in favour of the defendant, but such Will was turned down by the Assistant Collector 2nd Grade Nirmand, on the ground that the father of the plaintiff, Shri Paras Ram had cancelled the alleged will vide registered document No. 102/2003 dated 16.12.2003, wherein it has been specifically mentioned that the registered Will No. 101 dated 1.12.1999 stands cancelled by the father of the plaintiff. In the suit, plaintiff claimed that since the Will allegedly executed by her father in favour of defendant was revoked, she being legal heir of late Paras Ram is also entitled to half share in the suit property. Defendant by way of written statement, refuted the aforesaid claim and averred that Paras Ram, by way of Will, had bequeathed his entire property in her favour and as such, plaintiff has no right, title or interest over the same.

(3.) Learned Court below, on the basis of pleadings of parties, framed issues and thereafter, parties led evidence also. After closure of the evidence of defendant, when matter was fixed for rebuttal evidence, plaintiff filed an application under Order 6 Rule 17 read with S.151 CPC, praying therein for amendment of plaint stating that the father of the plaintiff namely Paras Ram, had cancelled the alleged Will No. 101 dated 1.12.1999 vide revocation deed No. 102/03 dated 16.12.2003. Plaintiff further stated in the application that though the Will in question was registered on 13.12.1999, but due to clerical mistake, date of registration was recorded as 1.12.1999 in the revocation deed, as such, she be permitted to carry out amendment in the plaint. Plaintiff prayed in the application that she be allowed to amend the plaint to the extent that the date of execution of Will was 13.12.1999 and not 1.12.1999, which prayer having been made by the plaintiff was opposed by defendant by filing reply. However, the fact remains that the application was allowed by the learned Court below, who permitted the plaintiff to carry out amendment in the plaint, as prayed for in the application.