Dismissed

Doli Raj v. Nanak Chand

Himachal Pradesh HC1 Sept 2011CMPMO/146/2010

Case brief

AI extract

What is this about?

A petition challenging the trial court's permission to amend a suit for injunction regarding disputed property. The High Court held the amendment did not alter the suit's nature as the core dispute remained ownership validity. The order was allowed as correct at the pre-trial stage.

What did the court decide?

Petition dismissed with no costs. Trial court's order allowing amendment of plaint stands.

Doli Raj Vs Nanak Chand — Partition | Himachal Pradesh HC (2011)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 146 of 2010. Reserved on 30.8.2011. Date of Decision: 1.9.2011.

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Doli Raj & Others. …Petitioners. Versus. Nanak Chand & Others …Respondents.

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Coram:

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The Hon’ble Mr. Justice Deepak Gupta, Judge.

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Whether approved for Reporting? No.

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For the Petitioners: Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For the Respondents: S/Sh. Javed Khan & Rajiv Rai, Advocate for Respondents.

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Deepak Gupta, J .

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The petitioners (hereinafter referred to as the defendants) have challenged the order dated 26.4.2010 passed by the learned Civil Judge (Jr. Division), Karsog, District Mandi whereby the respondents No.1 and 2 (hereinafter referred to as the plaintiffs) were permitted to amend the plaint.

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Briefly stated, the facts of the case are that the plaintiffs filed a suit claiming to be owners of land measuring 0-9-4 bighas in Karsog Bazar bearing khasra No. 792 and khasra No.

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It was alleged that a shop had been constructed by the father of the plaintiffs in khasra No. 792 and that the father of the defendants 1 to 3 was permitted to run a business in this shop. It was claimed that defendants No. 1 to 3 have started demolishing the shop without any right title or interest and hence a suit for injunction was filed, wherein a prayer was made that the defendants No. 1 to 3 be restrained from pulling down the old shop.

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The defendants No 1 to 3-present petitioners filed written statement and alleged that the suit land had been sold by the predecessor-in-interest of the plaintiffs and proforma defendants to their father Gopi Ram vide oral sale which was later on confirmed by a writing dated 3.12.1956. It was further pleaded that at the time of execution of document dated 3.12.1956, the area of the land was wrongly written as 6 biswas instead of 9 biswas and 4 biswansis. Thus, the defendants claimed to have become owners of the land and the shop thereupon.

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The plaintiffs alongwith the suit had filed an application for grant of stay which was allowed by the learned trial Court. Thereafter the present petitioners filed an appeal and the learned Addl. District Judge, Mandi, District Mandi reversed the aforesaid order and dismissed the prayer for grant of interim injunction. Thereafter the plaintiffs filed CMPMO No. 256 of 2007 which was dismissed, but the defendants No. 1 to 3 were directed

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to file a written undertaking that if the suit is decided against them they shall not claim any equitable consideration in their favour nor the cost of the structure if they are asked to pull it down. On filing of such undertaking, the defendants No.1 to 3 were permitted to carry on the construction.

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Thereafter the petitioners filed an application seeking permission to withdraw the suit with liberty to file a fresh one on the same cause of action, on the ground that since the construction has been raised and the defendants-respondents had claimed to have become owner by way of oral sale, a lot of new facts were required to be pleaded. This application was rejected by the learned trial Court, because it was found that the plaintiffs have failed to point out any formal defect in the suit. The plaintiffs filed CMPMO No. 310 of 2008 challenging the said order, but the said petition was later dismissed as withdrawn.

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Immediately after the withdrawal of the petition, the plaintiffs filed an application seeking permission to amend the plaint. Basically the amendments sought are that the predecessorin-interest of the plaintiffs was conferred ownership rights in respect of the suit land and thereafter the plaintiffs and proforma respondents were recorded as owner in possession of the same. It is also sought to be pleaded that the defendants claim that they had become owners pursuant to oral sale which was later recorded in writing dated 3.12.1956, but writing is in respect of 0-

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6 biswas of land and even if the same is held to be true, then also the plaintiffs are entitled to possession of remaining 3 biswas and 4 biswansis of vacant land. The application was contested. The same was allowed by the learned trial Court and hence the present petition.

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Mr. Bhupender Gupta, learned Sr. Advocate appearing for the petitioners-defendants strenuously contended that the whole nature of the suit is being changed. According to him, now the plaintiffs claimed to be co-owners. He further submits that in view of the undertaking filed, there is no need to claim possession and such possession should have been claimed when the suit was initially filed, since the plaintiffs were never in possession of the suit land.

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It would be pertinent to mention that the suit is still at the pre-trial stage and even issues have not been framed. The suit remained pending because of the various applications filed from time to time at the pre-trial stage. In my view, the order of the learned trial Court is absolutely correct and calls for no interference in exercise of the supervisory jurisdiction of this Court. The defendants set up a plea that they had become owners pursuant to the oral sale, but have themselves taken a plea that in the writing dated 3.12.1956 the land was wrongly recorded as 6 biswas instead of 9 biswas and 4 biswansis. The construction has been raised by the defendants and the plaintiffs by means of this

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amendment seek possession of the suit land. This in no manner changes the nature of the suit, because the basic dispute remains the same-who is the owner of the suit property?

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The ground raised by Mr. Bhupender Gupta, learned Senior Advocate that the plaintiffs cannot claim to be co-owners and this changes the nature of the suit land cannot be accepted. The plaintiffs have not admitted the oral sale but only allege that even if the oral sale is found to be correct, then also as per writing dated 3.12.1956 the land sold was only 6 biswas and therefore, the plaintiffs have a right to claim possession on the remaining 3 bighas 4 biswas and since the land is recorded in one khata they have the right to claim the partition. At this stage, this Court is not going to the merits of the case. The case has to be decided on the basis of the evidence led by the parties. However, the order allowing the amendment at the pre-trial stage cannot be said to be illegal or vitiated by an error of jurisdiction. Therefore, I find no merit in the petition which is accordingly dismissed. No costs.

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(Deepak Gupta), Judge

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1^st September,2011.

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(Krn Guleria)

Doli Raj v. Nanak Chand

Case brief

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Doli Raj v. Nanak Chand

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