GH AHMAD BABA Vs. HABIBULLAH SODAGAR

JUDGEMENT

(1.) THESE revision petitions are directed against an order of City Judge Srinagar dated 27 -5 -67 whereby he has rejected an application of the plaintiff -petitioner dated 8 -12 -65 for amendment of issue 1 struck on 18 -12 -68 and accepted a counter application of the defendant,

(2.) THE suit of the plaintiff -petitioner was for possession of the disputed property on the ground of the right of prior purchase. It seems first of all he had pleaded contiguity as a ground for the exercise of this right. Later on when the Supreme Court held that contiguity was not a ground on which pre -emption could be claimed, he sought permission to amend the plaint. Permission was granted to him on 15 -5 -68 by the court below. The application for amendment was made on 7 -3 -63, In this application the plaintiff sought permission to amend the plaint on the ground that the property in dispute was a dominant property vis -a -vis the property of the plaintiff which was a servant tenement. Secondly the building and the land in dispute were on a higher elevation than that of the plaintiff. The rain water from the premises was drained out through the land and the compound of the plaintiff for more than 40 years. In the disputed property some windows etc opened on the plaintiffs land. This amendment was permitted. The plaintiff on 19 -11 -63 sought permission to file a replication with respect to the written statement. This was permitted by the court and ultimately on 4 -12 -63 the replication was presented. Issues were struck in this case on 23 -12 -1963. The first issue struck in this case pertaining to the right of the prior purchase was in the following terms: - "Kaya jaidad gair manqola madai malabqa jaidad matnawia par se jaidad matdawia ko bazoze asaish hawa -roshni wa balasbam hasil hain aur istavab se jaidad mat dawia ko harore asaish kalasbam hawa aur roshni wa rakashpani madai ki malkaiti jaidad par se hasil hai aur auski vana par haq hbarid faiq madai ko hasil hai."

(3.) THEREAFTER evidence was led by the plaintiff but it was discovered by the plaintiff in the year 1965 that the issue should have been in two parts, namely that the property of the plaintiff vis -a -vis the disputed property was a servant and a dominant tenement. He prayed that the first issue mentioned above be amended. Then defendant when he learnt about this application for amendment of the issue presented by the plaintiff, put in an application to the effect that the plaintiff had in this replication dated 4 -12 -1963 without the permission of the court in para No. 7 pleaded a new ground for the exercise of the right which was unwarranted. Therefore the replication to that effect should be ignored. The trial court heard arguments and ultimately by its order under revision dated 27 -5 1967 rejected the application of the plaintiff dated 8 -12 -65 and accepted the application of the defendant dated 9 -6 -1966. Against this order the present revision petition has been filed.