TMI Blog2012 (9) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... shan and Kaki as his daughters. The mutation of inheritance was sanctioned in favour of Khuda Bux alone being his son. (b) Feeling aggrieved by the aforesaid mutation, Kaki and Aishan (daughters of Jhandu) filed Suit No. 280/162 against Khuda Bux claiming 9/36 share each in the said lands before the subordinate Judge, Ist Class, Sangrur, Camp at Malerkotla. By order dated 20.12.1971, the sub-Judge dismissed the said suit. (c) Challenging the said judgment, Kaki and Aishan filed an appeal being Civil Appeal No. 21 of 1972 before the District Judge, Sangrur. Vide order dated 04.07.1972 passed by the District Judge, the said appeal was dismissed as withdrawn in terms of the compromise arrived at between the parties. According to the terms of the compromise, it was agreed that Khuda Bux shall be entitled to retain possession of land admeasuring 34 Bighas 13 Biswas in village Haider Nagar with the condition that he and his wife Ramzanan will receive the produce of the suit land during their life time but they will have no right to alienate it by way of sale, mortgage or any other form. After the death of Khuda Bux and his wife, the said land would be divided among the four sons of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by the said judgment, the appellants have filed this appeal by way of special leave. 4) Heard Ms. Manmeet Arora, learned counsel for the appellants. None appeared for the respondents. 5) The only point for consideration in this appeal is whether the appellants herein have made out a case for amendment of the plaint in terms of Order VI Rule 17 of the Code. 6) Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:- 17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 7) It is clear that parties to the suit are permitted to bring forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute. Respondent Nos. 1-3 herein (Defendant Nos. 1-3 therein) filed written statement wherein they specifically alleged that they have stepped into the shoes of Ramzanan and Smt. Bashiran and Rashidan on the basis of the sale deeds dated 25.08.2003. It is the claim of the appellants that the above said Ramzanan and Smt. Bashiran and Rashidan have no concern with the ownership of the land in dispute and no right to alienate the suit land to the defendants or anybody else. In view of the stand taken by the defendants in their written statement, in the application filed under Order VI Rule 17 of the Code, the appellants have specifically raised that the alleged sale deed Nos. 1810 and 1811 dated 25.08.2003 in favour of defendant Nos. 1-3 executed by Ramzanan and Bashiran and Rashidan are liable to be set aside and have no effect on the rights of the plaintiffs and Saifur-Rehman qua the suit land and the mutation Nos. 781 and 782 sanctioned on the basis of above noted sale deeds dated 25.08.2003 are also liable to be set aside. In view of the claim of the appellants, we verified the necessary averments in the written statement of Defendant Nos. 1 and 3 and we agree with the stand of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customary law of inheritance to the parties therein, widows and daughters have no right of inheritance in the presence of the sons. It is the claim of the appellants that in view of the same, respondents transferees are not bona fide purchasers of the suit land. Learned counsel for the appellants again brought to our notice that these facts were specifically stated in the un-amended plaint and, therefore, amendment seeking incorporation of relief of declaration that the sale deeds are void does not change the nature of the suit. Because of those allegations in the un- amended plaint, the same was denied by the defendants in their written statement and we are satisfied that the necessary factual matrix as regards the relief of cancellation was already on record and the same was an issue arising between the parties. 13) In view of the stand taken by the respondent Nos. 1-3 herein/Defendant Nos. 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to protect their interest and not to change ..... X X X X Extracts X X X X X X X X Extracts X X X X
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