JEEWAN SINGH Vs. THAKUR BHAWANI SINGH AND ORS

JUDGEMENT

(1.) - This revision petition has been directed against the order of learned Additional District Judge No. 9, Jaipur City, Jaipur dated 30.3.2001 by which he allowed amendment in the pleadings of the plaintiff, Mr. RuleK. Agarwal appeared on behalf of No. 1 on filing a caveat at the admission stage.

(2.) I have heard learned counsel for the petitioner as well as learned Counsel for the respondent No. 1.

(3.) Briefly stated, plaintiff/non-petitioner Thakur Bhawani Singh filed a suit for possession and injunction against defendant No. 6 Jeewan Singh who is petitioner before me. It was alleged in the plaint that Thakur Udai Singh of Malsisar had two sons Bhoor Singh and Chatar Singh. Of the three sons of Bhoor Singh, Shivnath Singh, Bagh Singh and Takhat Singh, Shivnath Singh died in 1947 and Bagh Singh went to Mandrela in adoption and Takhat Singh succeeded in Malsisar. Thakur Chatar Singh had five sons out of whom Har Nath Singh had five sons out of whom Har Nath Singh went in adoption to Dundlod, Ishwar Singh died issue less and Bahadur Singh died in 1972. The other two sons Karni Singh, whose son is defendant No. 6 Jeewan Singh and Devi Singh, whose son is plaintiff. Plaint averred that after the death of Takhat Singh he started looking after his properties. He further claimed that towards end of his days, Takhat Singh was in poor health and under influence of defendant Nos. 1 to 5 who were employees of Takhat Singh had probably sot a trust constituted which was illegal and, therefore, inconsequential. Thus claiming that defendant Nos. 1 to 6 had trespassed and the properties described in Para No. 15 of the plaint, the plaintiff claimed the possession thereof as the sole successor as adopted son of Takhat Singh. Defendant No. 6 filed reply denying the allegations and averring that Takhat Singh died issue-less on 5.5.70 and had executed a will in favour of defendant No. 6. The claim of Bhawani Singh being adopted by Takhat Singh was denied. Thus defendant No. 6 claiming the title of the properties on the strength of the will on the strength of the will prayed for dismissal of the suit. He also challenged the theory regarding the properties having passed to a trust. A number of preliminary objections were taken including as to the jurisdiction, court fee and factum of adoption. The suit was filed 27 years ago and three witnesses including the plaintiff have been examined. An application under Order 6 Rule 17 C.P.C. was filed on 15.2.2001 which has been allowed by the impugned order. The plaintiff wanted an amendment alternative plea that notwithstanding the earlier pleadings he was the sole survivor of the family and hence was the owner of the properties and entitled to institute the suit and have possession of the properties mentioned in the plaint. This was resisted before the trial Court on various grounds but the trial Court allowed the amendment on cost.