NANAK RAM Vs. ANANT RAM

JUDGEMENT

(1.) The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioners, against the order dated 05.04.2016, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., in CMA No. 39-6 of 2016, in Civil Appeal No. 9/13/2011, whereby the application filed by the petitioners/plaintiffs (hereinafter to be called as "the plaintiffs"), under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was dismissed.

(2.) Briefly stating the facts, giving rise to the present petition are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the respondents/defendants (hereinafter to be called as "the defendants"), which was dismissed by learned trial Court vide judgment and decree dated 28.03.2011. Feeling aggrieved, the plaintiffs has maintained an appeal before the learned first Appellate Court, which is pending adjudication. During the pendency of first appeal, an application under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was maintained by the plaintiffs. In the said application, it has been averred that during the pendency of the suit, vide order dated 19.02.2000, passed by A.C. 1st Grade, Ghumarwin, District Bilaspur, H.P., the suit land stood partitioned. On 01.01.2008, possession stood delivered and rapat rojnamcha was entered and since the subject matter of the suit has entirely been changed and as the share of plaintiffs, which was 13 biswas has been merged in the share of respondent No. 1, therefore, the amendment is necessary, hence, the plaintiffs prayed for amendment in the plaint as detailed in paras 6 to 10 of the application.

(3.) The application so filed by the plaintiffs was resisted by filing reply, wherein preliminary objections qua maintainability etc, were taken. On merits, it has been averred that Jiuni Devi had not executed any Will in favour of the persons named in para 4 of the application. It has been further averred that the mutation with respect to the property of Jiuni Devi had been sanctioned and the same was in the knowledge of the plaintiffs, who had accepted it and since the mutation on the basis of inheritance of Juini Devi was correct, the plaintiffs had rightly accepted the partition proceedings. All the co-sharers were in possession as per the delivery of possession and as per the partition order. Lastly, it has been averred that the proposed amendment could not be permitted at this belated stage and dismissal of the application has been prayed.