Gurdial Singh and Another vs Kartar Singh

G.C. Garg, J.—This revision is directed against the order dated September 5, 1991 whereby application filed by the plaintiff-petitioners for amendment of plaint was dismissed by the trial Court.

Plaintiffs filed a suit for declaration that there has already been a partition between the parties about 30 years ago and that the plaintiffs were in exclusive possession as owners of a particular piece of land since then and the respondent who was their brother was given possession of separate pieces of land, and also for permanent injunction restraining the respondent from alienating any specific portion of the suit land and from disturbing the actual possession of the plaintiffs especially two pieces of land which fell to their share on partition. Suit was resisted by the defendant by filing written statement that there had been no partition between the parties and the land continued to be the join ownership of the parties.

The plaintiffs moved an application seeking amendment of the plaint. One of the amendments sought was allowed by the trial Court and there is no dispute about the same in the present revision. However, the amendments which were sought to be made in the plaint and have been declined by the trial Court are:

i). that the plaintiff had made improvements in the land falling to their shares by installing electric motor pump sets etc. and the defendant did not object to the same, therefore, he is estopped from asserting by his own act and conduct that there was no partition.

ii). That the plaintiffs made three parcels of the land which fell to the shares of three brothers;

iii). that the land given to the plaintiffs was inferior and, therefore, more in area than the land that had fallen to the share of the defendant;

The trial Court on consideration of the matter declined the application. It is how the plaintiffs have filed the present revision.

Defendant-respondent did not appear in spite of service. Learned counsel for the petitioners has been heard and the impugned order perused.

The contention of the learned counsel for the petitioners is that the amendments sought are of clarification in nature and in no way affect the matter in controversy between the parties and, therefore, the same ought to have been allowed by the trial Court.

I have considered the submission of the learned counsel and find that the same is without any merit. The primary controversy between the parties is whether there has been a partition of joint land or not. If it is proved during trial that there has been a partition then the subsequent acts sought to be pleaded by seeking amendment of the plaint are not necessary as the respective parties could improve the land which fell to their share. If, on the other hand, it is found that there has been no partition, then the mere fact that the party who was in possession of some portion of land as co-sharer cannot defeat the right of the defendant to seek partition. Thus, I am in complete agreement with the view taken by the trial Court that the amendments sought are neither relevant nor necessary for determining any controversy between the parties. It is a matter for the authorities partitioning the land to keep in view while deciding the mode of partition. One of such recognised principles is that possession of the parties is normally respected.

For the reasons aforesaid, this revision fails and is dismissed. There shall be no order as to costs. It is, however, made clear that anything said herein will not affect the merits of the controversy raised between the parties.