Kehar Singh vs Balraj Singh and Others

G.C. Mittal, J.—The estate left by Uttam Singh is in dispute. Long time back Uttam Singh made a gift in favour of Maikiat Singh by deed dated 24th October, 1921 and the same was challenged by Arjan Singh, a collateral of the donor, and he successfully obtained decree on 14th November, 1923. Under the decree it was declared that the gift would not effect the reversionary rights.

Uttain Singh died in October. 1975, and thereafter Balraj Singh filed the first suit for possession alleging himself to be the adopted son of the deceased and in that suit he impleaded Malkiat Singh donee, Kehar Singh, a collateral of the deceased and other mortgagees as parties. This suit was followed by a suit for possession by Kehar Singh collateral for 1/9th share against Balraj Singh & others. In the plaint he pleaded that Defendants Nos. 2 to 9 were collateral owning the remaining share. Yet another suit for possession was filed by Dr. Jagdishwar Singh, claiming himself to be collateral of the deceased against the parties to the aforesaid two suits

On an application moved by Balraj Singh the trial of 2nd and 3rd suit was stayed. The suit of Balraj Singh was dismissed by the trial Court as well as by the first Appellate Court on the finding that he was not proved to be the adopted son, Balrij Singh came to this Court in 2nd appeal and in that appeal he compromised the suit with Malkiat Singh alone to which Kehar Singh was not signatory. Under the compromise, Balraj Singh and Malkiat Singh agreed to share the land as compromised. Since this compromise was arrived at behind the back of Kehar Singh, he filed an application in the second appeal that such a compromise was not valid, and in any case it did not bind him. On that application it was ordered that Kehar Singh was not party to that compromise, it won''t affect his rights. This application was disposed of in 1988.

After the decision of the suit filed by Balraj Singh, Kehar Singh''s suit was revived in January 1989, and soon thereafter Kehar Singh filed an application for amendment of the plaint to plead that he was the sole collateral and thus was entitled to succeed to the estate left by Uttam Singh including the land covered by the alienations, which were successfully assailed by decree dated 14th November, 1923. It was mentioned in the application for amendment of the plaint that by oversight Defendants Nos. 2 to 9 were stated to be owners of the remaining 8/9th share whereas in fact they were not the collaterals and were merely mortgagees. Some other amendments were also sought, which are not subject matter of dispute in this revision.

The application was opposed by the Defendants and the trial Court by order dated 18-2-1989 rejected the application. This is Plaintiff�s revision.

On a consideration of the matter, I am of the view that this revision deserves to succeed. It is true that Kehar Singh made an admission that Defendants 2 to 9 owned 8/9th share in the land, which was subject matter of gifts but it is always open to a party to show that the admission was wrong. If Defendants 2 to 9 are the collaterals of an equal degree to the Plaintiff, it will be open to them to show the same and if they establish then the Plaintiff will fail in spite of amendment. But in case the Plaintiff is not given opportunity to back out of the wrong admission, he would not be able to show that the admission was wrong. On the peculiar fact of this case it is justified in the interest of justice to allow amendment in this behalf.

The main stay of the argument of the Defendants was that there is limitation of three years to file a suit for possession under the Punjab Limitation (Customs) Act 1920 (for short ''the Act''), and that such a suit is to be filed within three years of the death. The amendment, if allowed would relate back to the date of the filing of suit. Moreover, the Court has been granted powers by the Limitation Act to grant amendment with effect from the date of filing of the suit and this is a fit case for doing so.

The other amendment sought is to include 77 Kanals 3 Marias of land, which according to the Plaintiff was left out of the plaint by inadvertance. The counsel for the Plaintiff says that since the Plaintiff has already filed a suit for possession of that land separately, this amendment need not be granted in this suit.

for the reasons recorded above the revision is allowed partly in regard to the change of share from 1/9th to whole land i.e. regarding the land which was subject matter of alienation and decree dated 14th November, 1923. The net result is that the suit filed by Kehar Singh in the year 1976 will be for possession of the entire land instead of 1/9th share only. As a result of this order, the trial Court will give opportunity, to the Plaintiff to file amended plaint strictly in accordance with the above, order. After the amendment of the plaint, the trial Court will also give an opportunity to the Defendants to file amended written statement and then to proceed further.

The parties through their counsel are directed to appear before the trial Court on 18-2-91, which will proceed with the suit with expedition. No costs.