Ganeshi vs Rajwan

M.M. Punchhi, J. (Oral)

This petition for revision is to challenge an interlocutory order passed by Shri R.K. Bishnoi, HCS, Sub Judge IInd Class, Narwana. The order came to be passed in the circumstances mentioned hereafter.

Ganeshi petitioner filed a suit for declaration against Smt. Rajwan (now deceased and represented by her legal representatives) that he is owner in possession of the suit land on the basis of a family arrangement and that the revenue papers disclosing Smt. Rajwan defendant to be a cosharer in the joint holding were incorrect and wrong and liable to be corrected in accordance with his claim. In paragraph 1 of the plaint, a pedigree table was drawn disclosing that Ganeshi plaintiff was the adopted son of Kirpa, and Smt. Rajwan defendant was the natural daughter of Jagde. Kirpa, Jagde, aforereferred to, and Harde and Bhana being brothers were sons of Sada Ram. It was alleged in the plaint that the land measuring 329 Kanals 6 Marlas, fully detailed in the heading of the plaint, was owned and possessed by the Hindu undivided family and that a year prior to the institution of the suit the status of the joint Hindu family was broken and partition effected mutually and in accordance therewith the plaintiff had become the owner of the share which was reflected in the revenue papers to be belonging to the defendant. It was further asserted that though it was agreed that she would not stand in the way in getting the revenue papers corrected, she appeared to have changed her mind and on the basis of the revenue entries had started asserting herself to be the owner of a share in the land in dispute which had caused a cloud on the title of the plaintiff. On these facts, relief of declaration was sought to the effect that halfshare out of 1/8th share in the total area be declared to be in the ownership and possession of the plaintiff and the relevant revenue entries liable to be corrected in accordance therewith. The suit was filed on July 19, 1983 and on the very same day the defendant filed a written statement admitting all the paragraphs of the plaint to be correct praying to the Court that proper orders be passed. In reiteration of her written statement, the defendant also made a statement that she had heard the plaint and understood it and in accordance therewith said that let a decree be passed, and that she had not been brought to Court under any threat or fear. The Court still did not, in accordance with the provisions of Order 12 Rule 6 of the Code of Civil Procedure, pass the decree. The case was adjourned to July 22, 1983 for consideration and thereafter was adjourned from time to time. Later, on September 3, 1983, the defendant filed an application seeking permission to file second written statement, pleading that she had been subjected to undue influence, misrepresentation and fraud whereby her interests had been put to jeopardy. In the second written statement, she denied the averments made in the plaint and posed contest in the suit. This application was contested but the learned trial Court allowed it vide the impugned order and the defendant filed second written statement on payment of Rs. 40/ as costs.

Mr. Nehra, learned counsel for the petitioner, on the strength of M/s. Modi Spinning & Weaving Mills Co. Ltd. & others v. Messrs Ladha Ram and Company, AIR 1977 S.C. 680 contends that the defendant could not be allowed to amend her written statement so as to plead altogether a new case totally inconsistent with the stance adopted by her earlier. It is further maintained by him that even permission to amend the written statement was not sought by the defendant and straightaway permission to file a second written statement was sought and which has been granted without any reference to any provision of law. He vehemently asserts that the first written statement has to remain on the record and the suit has to be decided in accordance therewith. In other words, it means that the suit has to be decreed. This position of law and the outcome suggested is disputed by the learned counsel for the respondents.

Having heard the learned counsel for the parties, I am of the view that no interference need be caused in the impugned order. From the plaint, it is patent that the defendant had succeeded to the estate of Jagde in the one line and the plaintiff to have succeeded to the estate of his adoptive father Kirpa in the other line. The mere assertion of the plaintiff that he and the defendant constituted a joint Hindu family and that there was a family partition vide which the defendant had relinquished her share in the property to him, is utterly farcical, for, a married daughter of a collateral cannot be a member of a joint Hindu family, much less party to a family arrangement or partition. The plain reading between the lines was suggestive of nothing but an oral surrender of immovable property obviously more than the value of Rs. 100/ in favour of the plaintiff. The plea, if accepted or even admitted, would in the face of it tend to transfer immovable property of the value of Rs. 100/ or more without the payment of stamp duty and registration. That the suit was collusive in nature is writ large. The trial Court rightly did not decree it. The admission in the first written statement to the plea of the plaintiff would not automatically entitle him to a decree as that written statement was utterly meaningless. In these circumstances, when defendant had asserted that she had not filed the written statement of her own will and that she was subjected to undue influence, misrepresentation and fraud has, on the bare reading of it, to be accepted, allowing her to file written statement to contest the suit on merits. Obviously, justice is on her side in view of the nature of suit. For these reasons, I do not deem it appropriate to interfere in the order in the exercise of powers under section 115 of the Code of Civil Procedure.

Resultantly, this petition fails and is hereby dismissed. The parties through their counsel are directed to put in appearance before the trial Court on August 19, 1985.