Allowed

Surinder Kaur and Ors. v. Sumanjit Kaur and Anr.

Punjab & Haryana HC5 Dec 2011CR/1999/2010

Case brief

AI extract

What is this about?

This revision petition challenged an order allowing the amendment of a suit for declaration to include a suit for partition. The High Court held that the trial court erred and set aside the order, declining the amendment. The court reasoned that partition was independent and plaintiffs could file a separate suit.

What did the court decide?

Impugned order allowing the amendment is set aside; the amendment is declined. The suit shall proceed for declaration only.

Surinder Kaur and Ors. Vs Sumanjit Kaur and Anr. — Partition | Punjab & Haryana HC (2011)

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CR No. 1999 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No. 1999 of 2010 (O&M) Date of Decision: 5.12.2011

Surinder Kaur & Ors.

...Petitioners

Vs.

Sumanjit Kaur & Anr.

...Respondents

BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL

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Present: Mr.Binderjit Singh, Advocate, for the petitioners.

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Mr.Kunal Mulwani, Advocate, for respondents No. 1 and 2.

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A.N.Jindal, J.

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This revision petition has arisen out of the order dated 20.10.2009 (Annexure P.9) passed by Civil Judge (Jr. Division), Chandigarh, allowing the application dated 12.5.2006 (Annexure P.8) under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure filed by the plaintiffs/respondents (hereinafter referred as the plaintiffs).

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The facts in the back-ground of the case are that House No.1120 Sector 21-B, Chandigarh (herein referred as the suit property) was originally owned by Jawala Singh and his son Jasbir

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CR No. 1999 of 2010

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Singh and both of them died. Thereafter, Sajid Kaur wife of Jawala Singh also died. Jasbir Singh had left behind him his wife Jaswant Kaur and two daughters namely Sumanjit Kaur and Sukhrajan Kaur, now respondents. Thereafter probate proceedings were filed qua the suit property wherein a compromise was effected and Smt. Jaswant Kaur filed ejectment petition against Surinder Kaur which was dismissed. However, Jaswant Kaur wife of Jasbir Singh had filed an appeal against the said order which is pending before the appellate court. It was further pleaded that now the petitioners/defendants (hereinafter referred as the petitioners) are in possession of the suit property. Jaswant Kaur was the owner of ½ share in the suit property in view of the compromise in probate proceedings, whereas Jaswant Kaur, Sumanjit Kaur and Sukhranjan Kaur became owners of 1/10^th share on account of death of Jawala Singh and his wife Sajid Kaur. Now the plaintiffs are the owners of the suit property to the extent of 3/5^th share.

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Respondents No. 1 and 2 filed a suit for declaration challenging the sale deed No.2553 dated 15.5.1992 executed by Surinder Kaur defendant No.1 as power of attorney of the plaintiffs in favour of defendants No.2 to 4.

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It was replied by the respondents that respondents No.1 and 2 with an intention to prolong the litigation want to convert the suit for declaration challenging the sale deed into a suit for partition. The petitioners have nothing to do with the suit for partition as they are co-sharers in possession of the suit property on the basis of valid

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CR No. 1999 of 2010

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sale deed, If respondents No.1 and 2, ultimately, succeed in their mission then they would be left with no share in the suit property, therefore, the relief of declaration is quite independent to the relief of partition which may entail number of persons to be added as parties in the suit for partition and the cause of action will completely change. The suit has already been filed in the year 2002 and the trial has already commenced. If this amendment regarding suit for partition and rendition of accounts is allowed at this stage then it will amount to setting the clock back and it will take 10 years more to conclude the trial. Suit for partition is quite independent to the cause of action already pleaded in the suit and the plaintiffs could file a separate suit for partition if they so desire.

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Trial court has fell in apparent error and impugned order is quite invalid and calls for interference by this court.

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Resultantly, this petition is allowed. Impugned order is set aside and the amendment sought for, is declined.

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5.12.2011 rp

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(A.N.Jindal) Judge

Surinder Kaur and Ors. v. Sumanjit Kaur and Anr.

Case brief

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Surinder Kaur and Ors. v. Sumanjit Kaur and Anr.

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