Abdul Rehman & Anr vs Mohd.Ruldu & Ors

(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 Vide order dated 04.07.1972 passed by the District Judge, the said appeal was dismissed as withdrawn in terms of the compromise arrived at between the parties.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 Khuda Bux in equal shares. The remaining land owned by Khuda Bux in Binjoli and Haider Nagar was partitioned by him amongst his four sons in the manner set out in the compromise deed.

(d) On 12.09.1986, Khuda Bux executed a sale deed transferring ownership and possession of land admeasuring 17 Bighas and 10 biswas in village Haider Nagar in favour of the appellants herein. Challenging the said sale deed, the other two sons and two daughters of Khuda Bux filed a suit before the sub-Judge, Malerkotla. The sub-Judge dismissed the said suit and set aside the sale deed dated 12.09.1986. The said order was further confirmed in appeal.

(e) After the death of Khuda Bux, Ramzanan - his wife filed Suit No. 308 of 2002 before the Civil Judge, Malerkotla for declaration and permanent prohibitory injunction against all her children. In the above suit, on 24.12.2002, she also filed an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) seeking an injunction against the appellants herein from interfering with her possession. The said application was dismissed. Against the dismissal of the said application, she filed an appeal being C.M.A. No. 7 of 2003 before the Additional District Judge, Sangrur. By order dated 06.08.2003, the Additional District Judge dismissed the same.

(f) Vide registered sale deed Nos. 1810 and 1811 dated 25.08.2003 Ramzanan (wife of Khuda Bux) and Bashiran and Rashidan (daughters of Khuda Bux) sold some lands to respondent No.1 to 3 herein and tried to forcibly dispossess the appellants and respondent No.4 herein from the lands under their possession.

9) It is true that originally the appellants have approached the trial Court with a prayer for permanent prohibitory injunction restraining respondent Nos. 1-3 herein from forcible and illegal dispossession of the appellants herein from the land in dispute. 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 the appellants.

15) We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.

16) In the light of various principles which we have discussed and the factual matrix as demonstrated by learned counsel for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 06.06.2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial Court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned. The appeal is allowed. No order as to costs.

SEPTEMBER 27, 2012.