Civil Revision No.91 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.91 of 2009 Date of decision:- 16.01.2009. Sukhdev Singh and others ...Petitioners Versus Hakam Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Malkeet Singh, Advocate for the petitioners. JASWANT SINGH J. The petitioners have filed the present revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 28.08.2008 (Annexure P-1) passed by learned Civil Judge (Senior Division) Sangrur vide which the application dated 23.03.2008 (Annexure P-2), vide which they have sought the permission to amend the reply/written statement to the counter claim filed by the respondents, was declined. The facts giving rise to the matter in controversy are as under:- The petitioners-plaintiffs have filed a civil suit No.41 instituted on 26.02.2004 for permanent injunction restraining the defendants from dispossessing and interfering in their peaceful possession on the suit land comprised in Khewat No.22, Khatauni No.51 situated in Village Rajpura according to the jamabandi for the year 1999-2000, forcibly and without due course of law. After notice, defendants-respondents appeared and filed their written statement and have denied the ownership of the plaintiffs-petitioners Civil Revision No.91 of 2009 -2- and defendant No.3 has rather filed a counter claim for possession of the suit land. Faced with this situation, the plaintiffs-petitioners have filed an application dated 23.03.2008 (Annexure P-2) under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the reply/written statement of the counter claim, which was sought to be incorporated as disclosed in para No.2 of the application is as under:- (a) That in para 2 of the reply/written statement parawise after the words......plaintiffs are as owners.....and before the words and figure “the writing dated 03.04.1967”, the following words are to be added:- “the defendants No.1 and 2 on the asking of Bachan Singh, the father of the defendants No.2 and 3, and with his consent sold the suit land to Bhajan Singh son of Maingal Singh for Rs.260/- through writing dated 03.04.1967. At the time of filing the suit, when copy of jamabandi was obtained, the names of defendants No.2 and 3 were shown in the said jamabandi, but how their name came in the jamabandi was not mentioned. However, in the revenue record, Bachan Singh and Santi were shown to be the owners of the suit land alongwith some other land to the extent of ½ share each. In the jamabandi for the year 1984-85, Santi and Bachan Singh have been wrongly shown as owner in possession of the suit land alongwith other land of which they might be the owners and Civil Revision No.91 of 2009 -3- the alleged share of Santi is shown to have been mutated in favour of the defendants No.2 and 3 vide mutation No.1020. The said mutation is shown to have been entered and sanctioned on the basis of alleged decree dated 02.01.1993 passed in the suit mentioned in the plaint. The above mentioned decree, mutation and revenue entries regarding suit land in favour of the defendants No.2 and 3 are wrong, illegal, unauthorized, null and void and the same passed no title, in respect of suit land in favour of the defendants No.2 and 3 and have got no effect on the rights, title and interest of the plaintiffs regarding the suit land. The sale of the suit land by defendants No.1 and 2 with consent of Bachan Singh was in the knowledge of above said Santi, Bachan Singh, Hakam Singh and Hardev Singh and the possession of the plaintiffs and previously Bhajan Singh as owners was in the knowledge of Santi, Bachan Singh alongwith the defendants. The defendants-respondents filed the reply to the application for amendment and vehemently opposed the amendment sought to be incorporated by the petitioners-plaintiffs on the ground that it will change the whole nature of the suit and the pleas are contradictory to the stand taken by the plaintiffs in their plaint and which is not permissible in view of the provisions of Order 6 Rule 17 of the Code of Civil Procedure. Civil Revision No.91 of 2009 -4- Admittedly and undisputedly the suit filed by the petitioners-plaintiffs is for permanent injunction for restraining the defendants-respondents from interfering in their peaceful possession over the suit property. In the written statement filed by the defendants-respondents it has been specifically submitted that the defendants No.1 and 2 with the consent of Bachan Singh never sold the suit land to Bhajan Singh son of Maingal Singh on 03.04.1967 for an amount of Rs.260/-. It is further submitted that no possession of the suit land was handed over to the said Bhajan Singh as owner. It is also denied that Bachan Singh never remained in possession of the suit land as owner. It is further alleged that Bachan Singh was exclusive owner in possession of the suit land till he suffered a decree dated 02.01.1993 in faovur of defendants No.2 and 3 regarding the suit land and in pursuance thereof they (defendants No.2 and 3) are continuing as owner in possession of suit land and the plaintiffs-petitioners or their predecessor in interest had no concern with the same. By way of the application dated 15.01.2008 (Annexure P-2), the plaintiffs-petitioners not only wish to change the entire nature of the suit but also changing the entire plaint by seeking relief of declaration to the extent that the alleged judgment and decree dated 02.01.1993 and consequent mutations No.900 and 1020 vide which the share of Bachan Singh shown to have been transferred to defendants No.2 and 3 are not sustainable being illegal and void. Therefore,if the present application for amendment is allowed, then the entire plaint will be replaced and that will change the whole controversy and that will run counter to the pleas raised by the plaintiffs in their suit. The plaintiffs-petitioners in their reply/written statement to the counter claim, specifically submitted that possession of Bhajan Singh Civil Revision No.91 of 2009 -5- remained continuous exclusive, adverse, uninterrupted, hostile and within the knowledge of defendants and after the death of Bhajan Singh, his successors i.e. plaintiffs came into exclusive possession of the same as owners to which the defendant Bachan Singh never raised anyobjection. It is further submitted that the possession of plaintiffs is protected under Section 53-A of the Transfer of Property Act. The specific stand taken by the defendants-respondents in their written statement to civil suit as well as in the counter claim is that Bachan Singh transferred the suit land in favour of defendants No.2 and 3 by way of a decree dated 02.01.1993 and on the basis of that mutations No.900 and 1020 were sanctioned. The plea raised by the plaintiffs-petitioners that in the jamabandi for the year 1999-2000 names of the defendants No.2 and 3 were not mentioned and when they obtained the copy of jamabandi for the year 1984-85 and 1989-90, it was revealed that by way of decree dated 02.01.1993 mutations have been sanctioned in favour of the defendants No.2 and 3 by their father-deceased Bachan Singh. The plea of the plaintiffs-petitioners is not consistent with their stand in the civil suit or in the reply to the counter claim. The allegation of applicants-petitioners is that in the revenue record Bachan singh and Santi were shown to be the owners of the suit land alongwith some other land to the extent of ½ share each wrongly and in the jamabandi for the year 1984-85 Santi and Bachan Singh have been wrongly shown owners in possession of the suit land and that the decree dated 02.01.1993 and mutation No.900 and 1020 as well as revenue entries regarding the suit land in favour of defendants No.2 and 3 are wrong and illegal and passing of the title in favour of defendant No.3 is also illegal. The proposed amendment sought by the petitioners is running counter to their stand in the Civil Revision No.91 of 2009 -6- written statement to the counter claim, filed by defendants and it cannot be permitted as that will change the whole nature of the stand taken by the petitioner in their written statement. Learned Trial Court has rightly exercised the discretion while declining the application for amendment by relying upon judgment of this Court in Ashwani Kumar Aggarwal v. Shanti Lal, 2008(2)RCR (Civil) 452 in which it has been held that party cannot be allowed to change the cause of action and the basic nature of the suit, or inconsistent plea can be allowed to be added by way of amendment. In view of the discussions above, this Court does not find any illegality or perversity in the order dated 28.08.2008 (Annexure P-1) passed by the learned Trial Court while declining the application moved by the plaintiffs-petitioners for amendment of their reply to the counter claim filed by respondent-defendants. No ground to interfere under Article 227 of the Constitution of India is made out. Dismissed with no order as to costs. January 16, 2009 (JASWANT SINGH) vj JUDGE