C.R. No.6515 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.6515 of 2009 Date of Decision: 18.02.2010 Narender Kumar .……Petitioner Versus Roshni Devi and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. G. S. Jaiswal, Advocate for the petitioners. Mr. Amit Jhanji, Advocate for respondent. L. N. MITTAL, J (ORAL) Plaintiff has come up by way of instant revision petition filed under Article 227 of the Constitution of India challenging order dated 20.09.2009 (Annexure P-5) passed by learned Civil Judge (Junior Division), Hoshiarpur thereby dismissing plaintiff’s application for amendment of plaint. The plaintiff filed suit seeking declaration that he is owner in possession of the suit plot and the house built thereon on the basis of unregistered transaction by way of sale/writing dated 05.02.1993 for consideration of Rs.80,000/- and continues in possession thereof since then and as such the plaintiff has acquired perfect title to the suit property by adverse possession. The plaintiff also claimed relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property. The plaintiff moved application dated 07.08.2009 (Annexure P-3) for amendment of the plaint alleging that due to wrong advice of the counsel, the plaintiff took the plea of adverse possession which is not C.R. No.6515 of 2009 -2- permissible. Accordingly, the plaintiff wants to omit the plea of adverse possession by amendment. In addition thereto, the plaintiff wants to plead that unregistered sale deed is to be treated like an agreement to sell and, therefore, the plaintiff wants to plead various facts entitling him to seek specific performance of the said sale deed dated 05.02.1993 as an agreement. Elaborate facts running into several pages are sought to be pleaded. Alternative relief of confirmation of possession of the suit property by specific performance of unregistered sale deed dated 05.02.1993 is also sought to be added. I have heard learned counsel for the parties and perused the case file. At the outset, learned counsel for the petitioner is unable to explain as to how unregistered sale deed dated 05.02.1993 can be treated as an agreement to sell. The whole case of plaintiff for seeking amendment of plaint is based on the said plea. However, the same is not tenable. Unregistered sale deed cannot be treated as an agreement to sell. On this short ground, the amendment application is liable to be dismissed. Learned counsel for the petitioner, however, contended that the petitioner is entitled to protect his possession even on the basis of unregistered sale deed. Reliance in support of this contention has been placed on a judgment of this Court in the case of Ude Singh and others versus Ram Chander, 2009(1) RCR (Civil) 41. However, it defies logic as to how this legal proposition entitles the plaintiff to seek specific performance of unregistered sale C.R. No.6515 of 2009 -3- deed dated 05.02.1993 by treating it as an agreement. On the other hand, insofar as protection of possession on the basis of unregistered sale deed is concerned, the plaintiff has already sought the relief of permanent injunction and, therefore, the question of amendment of plaint to seek the said relief does not arise. Learned counsel for the petitioner vehemently contended that basic facts are already pleaded in the original plaint and only clarificatory facts are sought to be pleaded by way of amendment. The contention cannot be accepted. The plaintiff by amendment wants to change the very nature of the suit by adding voluminous fact. In addition thereto, relief of specific performance would also be time barred. The alleged sale deed which is sought to be treated as agreement to sell is dated 05.02.1993. The amendment application was filed on 07.08.2009 i.e 16½ years after the date of the unregistered sale deed. Consequently, relief of specific performance cannot be allowed to be added by way of amendment of plaint. The plaintiff wants to plead that sale certificate had not been issued in favour of Brahmu (predecessor of the defendants), who has executed the unregistered sale deed and for this reason, the sale deed was not got registered. However, Brahmu allegedly died on 01.02.2002. It is also pleaded in the amendment application that during his life time Brahmu never disclosed about the issuance of sale certificate in his favour. It would mean that sale certificate had been issued during the life time of Brahmu i.e before his death on 01.02.2002. Consequently, relief of specific performance cannot be added in the year 2009 and would be time barred. It is worth noticing that after framing of issues, the suit C.R. No.6515 of 2009 -4- was fixed for evidence of the petitioner on 11.10.2007 for 27.03.2008 and thereafter the plaintiff availed more than 5 opportunities, but did not lead any evidence. On the other hand, after dismissal of stay application moved by the plaintiff, the plaintiff moved application for amendment of plaint. Thus the plaintiff having failed to lead evidence came out with application for amendment of plaint. On the other hand, learned counsel for respondents pointed out that respondents had filed ejectment petition against the plaintiff-petitioner on the ground of non-payment of rent because the petitioner is tenant in the suit property and to frustrate the same, amendment application has been moved. It is manifest from the facts of the case that the proposed amendment would change the entire fabric of the suit. Even assuming the averments sought to be added to be correct, unregistered sale deed cannot be treated to be an agreement to sell and the proposed amendment cannot, therefore, be allowed. Relief sought to be added by amendment is also barred by limitation and for this reason, proposed amendment cannot be allowed. For reasons recorded hereinabove, I find no illegality in the impugned order of the trial Court. The revision petition is without any merit and is accordingly dismissed. ( L. N. MITTAL ) JUDGE 18.02.2010. A. Kaundal