Dharam Pal and Another vs Amar Nath and Another

Deepak Gupta, J.—This petition is directed against the order dated 12th March, 2009, whereby the application filed by the Respondent (hereinafter referred to as the Plaintiff) for amendment of the plaint has been allowed.

Briefly stated the facts of the case are that the Plaintiff Amar Nath filed a suit against his real brother Charan Dass, Defendant No. 1 (since deceased), Ram Dass and Jia Lal. According to the Plaintiff, Jia Lal and the predecessor in interest of Ram Dass had sold their half share in their total joint holding measuring 2 kanals 2 marlas, i.e. 1 kanal 1 marla to him. According to the Plaintiff, these two persons had also sold 10 marlas of land to the Agriculture Corporation Society of Village Dhsara and some land had been acquired by the State Government for construction of road from Amb to Una. It was claimed that the Plaintiff is exclusive owner in possession of 0-3-64 hectares, which is equal to about 19 marlas and it was also claimed that this land is short of the land purchased by the Plaintiff by 2 marlas. It was further alleged that the Plaintiff had raised construction by constructing two shops and a kotha on a portion of his land, which he had given on license to his brother. In the original plaint itself, it was mentioned that the Plaintiff had issued notice canceling the license in favour of Defendant No. 1. The Defendants contested the suit. It was not denied that the Plaintiff had purchased 1 kanal 1 marla of land, however, the correctness of site plan etc. was disputed. It was denied that any license had been created by the Plaintiff in favour of Defendant No. 1. In fact, Defendant No. 1 did not deny the ownership of the Plaintiff and claimed that the premises in question had been rented out to him initially on rent of Rs. 1800/- per annum, which was increased to Rs. 2100/- per annum in the year 1991, to Rs. 2400/- per annum in the year 1994, thereafter to Rs. 3000/-per annum in the year 1998 and finally to Rs. 3500/- per annum in the year 1999. The stand of the Defendant is that in fact the Plaintiff was also a share holder in the land acquired by the State Government and has been paid accepted a portion of the compensation and, therefore, his proportionate share in the whole land has come down. By means of this amendment, the Plaintiff instead of claiming exclusive ownership and possession has now claimed exclusive Hissedari possession of the constructed area and claims to be joint holder in the rest of the area. By means of this amendment, possession of the constructed premises has also been sought and damages for use and occupation charges of the said premises have been claimed. The learned trial Court has allowed the amendment. Hence, the present petition.

It has been strenuously urged by Mr. Naresh K. Thakur, learned Counsel appearing for the Petitioner-Defendant No. 1 that the amendment in question changes the nature of the suit itself and according to him, the whole plaint has virtually been re-written by way of amendment. I am afraid that I am unable to accept the contention of the learned Counsel for the Petitioner-Defendant No. 1. The basic dispute between the parties still remains the same. The only difference is that now the Plaintiff claims to be in joint possession over some portion of the suit land and claims to be in exclusive joint possession of the area alleged to have been constructed by him. In fact, the fact that the Plaintiff has raised the construction is not denied by the Defendant. Even, according to the Defendant, he is a tenant under the Plaintiff. Be that as it may, even assuming for the sake of argument, that the Plaintiff had received compensation for a portion of the land acquired by the State Government, then also it would only mean that his share in the total land would come down, but he would be the owner in joint possession. It is not disputed that the area sold to the Plaintiff was 1 kanal 1 marla. The only question is whether out of the land acquired by the State Government, the Plaintiff has received compensation for some portion of land. If he has received some compensation, his share in the total land would obviously fall, which would mean that the share available with Defendants No. 2 and 3 to sell would become more. The nature of the suit does not, in any manner, change.

At the stage of allowing the amendment, the court is not expected to go into the merits of the dispute. Therefore, I find no error in the order of the learned trial Court. The petition is, accordingly, dismissed. It is, however, made clear that this Court has not expressed any opinion on the merits of the case or the rival contentions of the parties. Needless to say that it will be open to Defendant No. 1 Petitioner to raise all objections available to him while filing written statement to the amended plaint.

The parties through their counsel are directed to appear before the learned trial Court on 30th November, 2010. The Registry is directed to ensure that the records of the case are sent at the earliest so as to reach the court well before the said date.