Piari Bai vs Smt. Jamna Bai

G.C. Garg, J.—Plaintiff-respondent filed a suit for declaration to the effect that she is owner in possession along with the defendants in equal shares of the land as fully detailed in the headnote of the plaint. Case of the plaintiff is that the land was owned by Jagtar Singh, her father and on his death, she inherited the same equally along with defendants. She also prayed for a decree for permanent injunction restraining the defendants from ousting her from the suit land and also restraining them from alienating by way of sale, mortgage, exchange, gift, transfer, lease or in any manner whatsoever any specific Khasra numbers, beyond their shares and without getting the suit land partitioned. The suit was resisted by the defendants by filing a written statement. Case of the defendant-petitioners is that the plaintiff is not the daughter of Jagtar Singh and, therefore, the suit is not maintainable. Defendant No. ''1 is the widow of Jagtar Singh and the defendants are only heirs of deceased Jagtar Singh. The factum of Jagtar Singh contracting two marriages was denied. It was denied that the defendants in league with the revenue authorities got a mutation sanctioned. It is denied that the mutation is illegal or void. The defendants are the absolute owners in possession of the suit land.

After the framing of the issues, the parties led their respective evidence and when the suit became mature for arguments, the defendants moved an application seeking amendment of the plaint. In the application seeking amendment of the plaint, it was stated that the suit land was inherited by Jagtar Singh from his father Bahadur Singh after the death of the latter. Bahadur Singh was allotted land in lieu of the land left by him in Pakistan. The land was thus a Joint Hindu family, ancestral and coparcenary property in the hands of Jagtar Singh. The plaintiff is thus not entitled to the share claimed by her in the suit. It was thus also sought to be alleged by way of an additional plea that "even otherwise the suit property was and is the Joint Hindu Family ancestral and coparcenary property in the hands of Jagtar Singh, so the plaintiffs is not entitled to the share of property as claimed by her, if proved to be the daughter of Jagtar Singh." The application for amendment of written statement was considered by the trial court and it on a consideration of the matter dismissed the same by order dated 13.10.1993 by observing that the amendment of written statement will change the nature of defence and it will re-open the case from the first stage. Hence this revision at the instance of the defendants.

After hearing learned counsel for the parties and perusing the record especially the written statement and the evidence led in the case, I am of the opinion that this petition has no merit. The plaintiff filed a suit claiming l/6th share in the property of her father. The defendants who are the step-mother, step-brother and the step-sister of the plaintiff took a stand that the plaintiff is not the daughter of Jagtar Singh and, therefore, she was not entitled to a share in the land. It is their case that the mutation of inheritance has rightly been sanctioned in favour of all the defendants i.e. including the widow and daughter after the death of Jagtar Singh. During the course of evidence it was no where the stand of the defendants that the property is the Joint Hindu Family property and the plaintiff has no share therein. Rather the evidence led by the defendants clearly goes to show that the mutation has been rightly sanctioned and the defendants are the owners of the land in dispute. If the property was coparcenary in the hands of Jagtar Singh, it could but obviously have devolved on his daughter and widow in equal shares along with sons of Jagtar Singh whereas as per the mutation, it has devolved upon the sons, daughter and the widow of Jagtar Singh in equal shares. This apart, the written statement if allowed to be amended at this stage, will mean total re-trial of the case by ignoring the evidence already led. The amendment if allowed would mean that it is against the interest of defendant No. 1 and defendant No. 5 especially when defendant No. 5 is a minor. The amendment sought is contradictory to the main issue in the suit. The only effort on the part of the defendants seems to be to delay the disposal of the suit as long as possible. The defendant while appearing in the witness box did not utter a word in that behalf nor such a suggestion was ever given to the plaintiff or her witnesses. The only averment now sought to be made is that the land was allotted to the father of Jagtar Singh in licu of the land left by him in Pakistan. This does not establish that Jagtar Singh or his father Bahadur Singh was governed by Hindu Law and the latter constituted a coparcenary along with his son. It is also not clear even from the amendment sought to be made that the land was inherited by coparceners in ancestral shares and in no other way. In the facts and circumstances of this case, I am of the opinion that the amendment sought is clearly an abuse of the process of law and is malafide. The judgment relied by the learned counsel for the petitioners, namely Smt. Amro v. Smt. Sukhdarshan Kaur. 1993 (3) RRR 712 Raghbir Singh and Ors. v. Gurnam Kaur 1990 P.L.J. 534 and Surjeet Singh v. Sucha Singh and Ors. 1980 P.L.J. 41 have no application to the facts of this case. The revision petition is consequently dismissed but with no order as to costs. The parties through their counsel are directed to appear before the trial court on 18.5.1998 for further proceedings in accordance with law. No costs.