CR No.5088 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5088 of 2010 (O&M) Decided on: 16.08.2010 **** Charan Kaur and another . . . .Petitioners Versus Kashmir Singh and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.V.M. Gupta, Advocate for the petitioners. **** RAKESH KUMAR JAIN, J. (ORAL) CM No.20338 & 20339-CII-2010 Applications are allowed as prayed for. CR No.5088 of 2010 This revision petition is directed against order dated 17.5.2010 passed by the Civil Judge (Junior Division), Patiala. Learned counsel for the petitioners has submitted that original owner Ram Singh was having 5 bighas 16 biswas of land. In the year 1959-60, out of the aforesaid land, 2 bighas 13 biswas was acquired and said Ram Singh was left with 3 bighas 3 biswas of land. Again in the year 1974-75, 2 bighas 0 biswa was acquired out of 3 bighas 3 biswas of land and Ram Singh was left with 1 bigha 3 biswas of land. It is alleged that on 5.6.1975, plaintiffs had purchased 20 karams x 62 ft. of land out of the remaining land of Ram Singh namely 1 bighas 03 biswa of land and is in possession CR No.5088 of 2010 (O&M) - 2 - thereof. However, the defendants alleged to have purchased 2 bighas 5 biswas of land out of Khasra No.587 by virtue of sale deed dated 8.7.1993 from said Ram Singh and started interfering in their possession, therefore, petitioners had to file suit for permanent injunction. It is submitted that on 18.11.2008, the defendants had claimed that Ram Singh had also bequeathed his immoveable property in their favour by virtue of Will dated 10.12.1993. The petitioners then filed application for amendment of the plaint at the stage of rebuttal and arguments. The purpose of amending the plaint is to challenge the said Will on the basis of which mutation No.897 has also been sanctioned in favour of the defendants on 19.11.2008. The learned trial Court dismissed the application on the ground that the plaintiffs/petitioners had filed suit for permanent injunction claiming themselves to be owners in possession on the basis of the sale deed. In defence, defendants had set up their sale deed and had not even pleaded the Will dated 10.12.1993 in their written statement. Thus, it was found that once the Will is not pleaded in defence, the plaintiffs unnecessarily wanted to raise another dispute by seeking declaration for challenging the Will. Learned counsel for the petitioners has vehemently argued that in any case the petitioners had to challenge the said Will by way of a separate suit, therefore, in order to avoid multiplicity of litigation, amendment should be allowed. The argument of the learned counsel for the petitioners may be attractive but it is not impressive because of the reason that plaintiffs have come to the Court on the basis of their own title CR No.5088 of 2010 (O&M) - 3 - by virtue of the sale deed whereas the defendants had set up their case on the basis of title derived from the sale deed in their favour dated 8.07.1993. Once the Will has not been set up in defence, the application of the plaintiffs/petitioners for amendment could not be appreciated. However, they are free to challenge the Will if it is set up against the plaintiffs by the defendants. Thus, the present revision petition is devoid of any merit and is hereby dismissed, though, without any order as to costs. (RAKESH KUMAR JAIN) 16.08.2010 JUDGE Vivek