Anil Kumar and Others vs Kamla Devi and Others

Surjit Singh, J.—Heard and gone through the record.

Petitioners-plaintiffs are aggrieved by order, dated 27.3.2009, of learned District Judge, whereby their application for amendment of plaint, has been rejected.

A suit has been filed by the petitioners-plaintiffs for issuance of permanent prohibitory injunction, restraining the respondents-defendants from changing the nature of the suit property, described in the plaint, or felling trees standing thereon, or extracting resin from pine trees. Respondents-defendants denied the petitioners-plaintiffs� claim that they are joint owners of the suit property. They pleaded that predecessors of the petitioners-plaintiffs, namely, Thola Ram, who was joint owner in the suit property, executed a Will in their favour and so, the share of Thola is owned by them, to the extent, it had been bequeathed to them under the Will of said Thola.

Trial Court dismissed the suit. Petitioners-plaintiffs filed an appeal and during the pendency of the appeal, they moved an application for amendment of the plaint, which has been dismissed, vide impugned order, dated 27.3.2009, Annexure P-8. Amendment, sought by the petitioners-plaintiffs, was to the effect that during the pendency of the suit, respondents-defendants, had committed certain acts, like raising construction, on a portion to the extent of 1 biswa area on a given Khasra number, setting up a saw mill and making encroachment upon 3 biswas area of another number and had also felled some pine trees. That application has been dismissed. Reasons given by the learned District Judge are, that earlier application for amendment moved by the petitioners in the trial Court had been dismissed and the order of dismissal of that application, when assailed in the High Court, had been affirmed and, therefore, it would be an act of judicial impropriety on his part, to allow amendment. Another reason given by the learned District Judge is that revenue papers, to which presumption of truth attaches, falsify the petitioners� claim of their being joint owners, even though the learned District Judge has noticed that those entries have been made in favour of the respondents-defendants, on the basis of Will, propounded by them.

I have heard counsel for the parties and gone through the record.

Neither of the two aforesaid reasons given by the District Judge in his order, is legally sustainable. Earlier, prayer for amendment of the plaint was for incorporation of additional plea that Thola, the alleged testator, was only a coparcener with the petitioners-plaintiffs and, therefore, he did not have the capacity to bequeath the entire share, recorded in his name in the revenue papers. Second reason given by the District Judge that there are entries in the revenue papers in favour of the respondents-defendants and, so, the plea of joint possession cannot be allowed to be raised by the petitioners, can also not be upheld, because admittedly, petitioners-plaintiffs are not being recorded as joint owners in the revenue papers, on account of mutation having been attested in their favour, on the strength of Will executed by Thola, which Will, is under challenge in the present litigation.

Learned Counsel for the respondents submits that in the garb of present amendment, petitioners-plaintiffs want to examine one of them as a witness in the case, despite the fact that their right to enter the witness box, has already been shut by order of the Court, which order has been upheld by this Court, in an earlier appeal, in which remand order was passed.

This objection of the learned Counsel for the respondents can be met by incorporating a condition in the order of allowing amendment, that petitioners-plaintiffs, if entering the witness box after amendment, shall not be allowed to testify the facts, other than those, allowed to be incorporated by way of amendment.

For the foregoing reasons, present petition is allowed, impugned order is set aside and consequently, application for amendment is allowed. Petitioners shall have the right to lead evidence with respect to additional plea only and not in respect of entire case and the respondents-defendants shall have the right to rebut such evidence. Parties to appear before the first appellate Court on 7.9.2010.