Punjab-Haryana High Court
Jangir Singh vs Mohinder Kaur And Ors. on 4 December, 1992
Equivalent citations: (1993)104PLR512
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. The present revision petition is directed against the order of the Additional District Judge, Faridkot, whereby the application under Order 6 Rule 17 of the Code of Civil Procedure filed before him by the plaintiff/appellant at the stage of appeal, has been declined. The facts of the case are that the plaintiff (hereinafter referred to as the petitioner) filed a suit against the defendants (hereinafter referred to as 'the respondents') for declaration to the effect that the plaintiff was owner in possession of the certain agricultural land and mutation No. 943 and 1920 of inheritence of Rattan Singh and decree dated 19.7.1984 in favour of respondents No. 7 and 8 was also wrong and fictitious.
2. The following issues were framed by the trial Court :-
1. Whether the plaintiff is in exclusive possession to the knowledge of others as owner after the death of deceased Rattan Singh by way of alleged partition dated 13 8.195? OPP
2. Whether the parties are Jats and governed by custom in matters of inheritance ? OPP.
3. Whether mutations No. 943 and 1980 are void as alleged in the plaint and have no effect on the rights of the plaintiff? OPD.
4. Whether the suit is bad for mis-joinder of necessary parties ? OPD.
5. Whether the simple suit for declaration is not maintainable ? OPD.
6. Whether the suit is not within limitation ? OPD.
7. Whether the plaintiffs are entitled to the declaration prayed for ? OPP.
8. Whether the plaintiffs are entitled to the permanent injunction prayed for ? OPP.
9. Whether the decree dated 19.7.1984, is fictitious and wrong ? OPP.
9A. Whether the defendant No. 6 has not suffered any decree in favour of defendants No. 7 and 8 ? OPD 6.
10. Relief.
The trial Court decreed the suit partly and being dis-satisfied, the petitioner filed an appeal before the Additional District Judge, Faridkot. While the appeal was yet pending, he moved an application under Order 6 Rule 17 of the Code of Civil Procedure and sought to make the following amendments : -
"3-A. that father of the plaintiff inherited the land measuring 186 kanals 5 marlas, from his father Kunda Singh. At the time of death of Rattun Singh, the land in dispute was ancestral co-parcenary property. In this land sister of the plaintiff has no right being the heir of Rattan Singh."
As already indicated, this application was disallowed and the present revision petition has been filed against the same. The First appellate Court has held that the amendment could Dot be allowed keeping in view the nature of the suit as the case of the petitioner before the trial Court, as set out in the original plaint, was that a partition had taken place between the petitioner and Raj Singh-his brother during the life time of Rattan Singh their father and that alternatively, the parties being Sidhu Jats were governed by custom and that the petitioner and Raj Singh were to be taken as co-owners of the property. Keeping in view this background, it has been held by the lower Appellate Court that by the proposed amendment the petitioner sow seeks to change the nature of the suit and put up totally a different and inconsistent plea to the one already taken.
3. Mr. M. L. Sarin, Senior Advocate, appearing for the petitioner has urged on the basis of a number of judgments cited by him that the plea now he seeks to project by amendment is not a new one as he only seeks to plea that the parties being governed by Hindu Law were entitled to succeed to the property on that basis, and even if this suit was decreed, the net result would be that the petitioner and Raj Singh would be held members of co-parcenary. He has also stated that the amendment can be allowed at any stage and for this proposition has cited a number of judgments in support of this.
4. Mr. Ashok Singla, learned counsel for the respondents has, however, urged that by the proposed amendment, the entire case of the respondents would be displaced and a new case will be put as an inconsistent plea which could not be permitted. In support of his proposition, he cited Daljit Singh and Ors. v. Balwant Singh, 1991 (1) H. L. R. 493, and Dalip Kaur and Ors. v. Sohan Singh, 1989 (1) H. L. R. 141.
5. After hearing the learned counsel for the parties, I am of the view that if the proposed amendment is allowed, the case of some of the respondents would be totally displaced and that cannot be permitted. The judgments cited by the learned counsel for the respondent fully support their case. In Daljit Singh's case (supra), the defendants had taken the plea that suit property was a Joint Hindu family property whereas by the 'amendment of the written statement, it was sought to plead that in matters of inheritance/succession, the parties were governed by customary law. This amendment was disallowed by the Court. In Dalip Kqur's case (supra), the plaintiff based, his claim on a Will and also that the property indispute was not co-parcenary property but by an amendment claimed at the appellate stage that the property in dispute was a coparcenary property. The trial Court allowed the amendment but that judgment was reversed by the High Court observing that the party could not be allowed to turn round to take an altogether contradictory plea to the effect that the property in dispute was a co-parcenary property as this plea could not coexist with the original claim based on a Will. The aforesaid judgment fully support the respondent's case.
6. For the reasons recorded above, I find no merit in this revision and the same is dismissed with no order as to costs.