Avinash Kumar and Others vs Arvind Kumar

Surjit Singh, J.—Petitioners in this case are Defendants in a suit filed by Plaintiff-respondent, alleging that he is a co-owner with the Petitioners, in respect of certain property, which belonged to their common ancestor and on the death of said common ancestor, it devolved upon all his successors, i.e. the Respondent and the present Petitioners. Plaintiff-respondent sought declaration that he is joint owner in possession with the present Petitioners (defendants). Petitioners filed written statement, in which they specifically alleged that a Will was executed by their common ancestor and on the basis of that Will, mutation has also been attested in their favour and, thus, they are exclusive owners in possession of the suit property.

Suit was filed in the year 2008 and thereafter issues were framed and the Plaintiff-respondent adduced Whether reporters of the local papers may be allowed to see the judgment? evidence. When the evidence of the Defendants-petitioners was being recorded, an application was moved by the Respondent, for amendment of the plaint, so as to take the plea that the Will set-up by the Petitioners was bogus and forged. Trial Court has allowed that application, vide order dated 17th March, 2011, copy Annexure P-7. Petitioners are aggrieved by this order.

I have heard learned Counsel for the parties and gone through the record.

Admittedly, the subject matter of the suit was the property of the common ancestor of the parties. But for the Will set-up by the Defendants-petitioners, that property would have devolved upon the Petitioners as also the Respondent. Respondent filed the suit, seeking declaration that he being one of the heirs of the common ancestor had inherited the property alongwith the Petitioners.

Petitioners did not deny status of the Respondent as a heir of the common ancestor and his right to inherit the property alongwith them, but set-up a will. Trial Court ought to have framed an issue, with respect to the plea of Will, raised by the Defendants-petitioners and in that situation, Plaintiff-respondent would have automatically got the right to lead evidence, while rebutting Petitioners'' evidence, qua the issue, pertaining to Will, to prove that the Will was not genuine. This having not been done by the Court, Plaintiff-respondents moved an application for amendment of plaint, though he could have also achieved the object, sought to be achieved by carrying out the amendment, by making an application for framing an additional issue. Request for framing an additional issue can be made by either party at any time, during the pendency of the case.

In view of the abovestated position, I am of the considered view that amendment of the plaint, allowed to be carried out by the trial Court, was a mere technicality to cure an error, in not framing issue, based on the plea of Will. The amendment does not change the cause of action, as is canvassed by the learned Counsel for the Petitioners. Issue, as already noticed, was required to be framed, with respect to the plea of Will, even if the Respondent had not challenged the Will, in the plaint or by filing replication, because the Defendants-petitioners admitted the status of Plaintiff-respondent as an heir of the deceased, but set-up the exclusive title in themselves, on the basis of Will.

For the foregoing reasons, I find no merit in the present petition. The same is, therefore, dismissed. Pending application(s), if any, also stand disposed of.