GULAB BIBI Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) THESE two applications involve common points of law and I purpose to deal with them by one common judgment.

(2.) TWO suits were filed by the plaintiff Sri -mati Shakuntla Devi one against Sobaydar Fateh Ali and others and the other against Mst. Gulab Bibi and others for possession of the properties in suit on the ground that the plaintiff had a right of pre -emption based on contiguity. The suits were filed on"" 11 -8 -1958 and onT22 -4 -1963 the plaintiffs filed an application for amending the plaint so as to preempt the property on the basis of a right of easement. The defendants had also made a prayer praying for taking an additional objection that the right of contiguity was ultra -vires of Article 19 of the Constitution of India. The court, after hearing both the parties allowed the amendment sought for by the plaintiff and the defendants respectively. It is against this order that the defendants have come up in revision before this court.

(3.) THE main grounds taken by the defendants in this case are : - i) That the application of the plaintiff was not bona -fide. ii) That since the plaintiff had already based her claim on the right of way, no reasonable explanation has been given for not including the additional right of easement claimed when it could have been taken at the time when the plaint was filed. iii) That there is no mention in the application that the amendment was sought for because the right of contiguity has been declared to be ultra vires of Article 19 of the Constitution of India, but the ground taken is that the plea was left out due to over -sight. iv) That the plea now sought to be taken is barred by limitation on the date when the application for amendment was filed and if the plea is allowed the defendants would be deprived of a valid defence to the action filed by the plaintiff.