IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.79 of 2008 Date of decision: 29.5.2008. Sh.Khem Chand …..Petitioner -Versus- Hari Chand and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioners: Ms.Jyotsna Rewal Dua, Advocate. For the respondent: Mr.Romesh Verma, Advocate Deepak Gupta, J.(oral) This petition is directed against the order dated 24.10.2007 whereby the learned trial Court i.e. Civil Judge (Junior Division), Court No.2, Paonta Sahib has rejected the application filed by the petitioner-plaintiff for amendment of the plaint. Briefly stated, the facts of the case are that the petitioner (hereinafter referred to as the plaintiff) is the real brother of respondents-defendants 1&2 and respondent-defendant No.3 is the widow of his pre-deceased brother Sumer Chand. Their common ancestor was Daulat Ram, father of the plainttiff and defendants 1&2 and father-in –law of defendant No.3. The case set up by the plaintiff in his original plant was that in the year 1960 an oral partition had been effected by Daulat Ram ‘karta’ of the Hindu Joint Family and whereas the defendants were given their shares in land measuring 11-11 bighas comprised in khata khatauni Nos.14/15 in mauza Kodewala, Tehsil Paonta Sahib, as far as the rights in the Shamlat land corresponding to this land were concerned these were exclusively given to the plaintiff. The plaintiff also pleaded that later Daulat Ram executed a Will and in this Will also recognized the fact that during consolidation proceedings the shamlat 2 rights had been given to the plaintiff. It was also contended that the plaintiff was coming in possession of the land forming part of the shamlat. The defendants contested this suit and claimed that no partition or family settlement was arrived at as alleged. According to the defendants the plaintiff was in possession of 5 bighas of land out of the shamlat land and he was otherwise dis-inherited from the other property. A plea was also taken up that in terms of the Will the defendants had inherited all the land which belong to Daulat Ram and therefore they were also entitled to the corresponding share in the Shamlat land. Written statement was filed on 22nd of March, 2007. Thereafter, replication was filed in May, 2007 and immediately thereafter an application under order 6 Rule 17 CPC was filed on 9th August, 2007. This application was filed seeking permission to amend the plaint. By means of the amendment the plaintiff prayed for grant of an alternative relief. The alternative relief sought by the plaintiff was that in case it is held that no partition had been effected in the year 1960 then the land being ancestral and the parties forming a coparcenary, Daulat Ram had no right to execute the Will in respect of the land in excess of his share. This application was opposed and has been rejected by the learned trial Court. The objection taken by the defendants was that this amendment changes the very nature of the suit inasmuch as the original suit was only qua the right of the plaintiff in the shamlat land and now he is claiming the right in the land actually owned by Daulat Ram which allegedly was coparcenary property. Another ground raised was that there was no explanation given in the application as to why this application had not been moved earlier. In fact as far as second ground is concerned the same may not arise in this case because this application was filed prior to the framing of the issues, therefore, the trial had not commenced. The trial in a suit is deemed to commence only after the framing of the issues. 3 On merits, I am of the considered view that the amendment as prayed for is necessary to decide the real matter in controversy between the parties. The petitioner claim exclusive right to the shamlat on the basis of an oral partition allegedly executed in the year 1960. He also did not deny the execution of the Will qua the remaining property by his father Daulat Ram. The defendants took up a plea that the petitioner was neither entitled to any share in the shamlat property nor in the coparcenary property. They denied that any partition had taken place. Once they had denied the execution of the partition, the plaintiff was justified and entitled to raise a plea that in case it is not proved that the properties were partitioned as alleged by him then the property being ancestral property should be inherited as per the Hindu law and that Daulat Ram had no right to execute a Will in respect of the Co- parcenary property in excess of his share. I am not expressing any opinion on the merits of the case. Whether there was a partition or not? Whether the property is a coparcenary or not? These are questions to be decided by the trial Court. These questions are not to be decided at the time when the application for amendment is considered. But all these questions are important questions directly connected with the main dispute i.e. who is entitled to inherit the property of Daulat Ram. Therefore, in my opinion, the plaintiff should have been permitted to amend the plaint as prayed for by him. The findings of the learned Court below that the pleas are contradictory cannot be accepted. The pleas are not mutually destructive. They are alternative pleas. Therefore, the order of the learned trial Court is set-aside and the plaintiff is permitted to amend the plaint. Amended plaint is ordered to be taken on record. Parties through their counsel are directed to appear before the learned trial Court on 19th June, 2008. The defendants shall file written statement to the amended plaint on or before 24th June, 2008. Replication, if any, be filed by 26th June, 2008 and additional issues if any arising shall be framed on 4 26th June, 2008 and the matter shall be kept for plaintiff’s evidence on 29th August, 2008 which is the date already fixed in the case. The petition is disposed of in the aforesaid terms. In view of the disposal of the main petition, all miscellaneous applications stand disposed of. No order as to costs. May 29, 2008. ( Deepak Gupta ), PV Judge