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1998 Supreme(Del) 468
High Court Of Delhi
DALIP SINGH - Appellant
Versus
SANT SINGH - Respondent
Interim Application 1154 of 1998
Decided On : 07/09/1998
GITA LUTHRA, SHYAM KISHORE SHARMA
Headnote:Civil Procedure Code, 1908 - Order 6 Rule 17 — Amendment of pleadings — Considerations for — Introduction of new cause of action by amendment — Amendment cannot be allowed.
Held :
I am of the view that the proposed amendment cannot be allowed because it will not only introduce an entirely different and new cause of action, it is also unnecessary for the purpose of determining the real question in controversy, clearly spelt out in the settled issues. As noted above, the entire defense of the applicant was based on the agreement to sell dated 16 January 1981, executed in his favor by deceased defendant No.1 and the decree obtained by him on 17 November 1983 against the said defendant. Apart from these two factors no other averment was made as to the facts or grounds on which the applicant had based his title to the portion of the property in question. The factum of will dated 27 October 1983, executed a month prior to the passing of consent decree, was neither relevant nor even remotely mentioned. Indeed, it was not considered necessary for the reason that the plaintiff was not disputing the transfer by defendant No.1 of his share to the applicant. Plaintiffs grievance seemed to be only with respect to the area which was to fall to his share, This is borne out from the plaint wherein the plaintiff, in para 6 of the plaint takes notice of but neither challenges the agreements sell dated 16 January 1981 by defendant no. 1 with the applicant nor the decree obtained by the applicant on 16 November 1983 against the said defendant.
I feel, that the only matter in controversy to be decided in the suit being whether the applicant is in possession of some extra portion of the said property, which defendant No.1 was not entitled to transfer in his favour, the will now set up has no relevance to the real issue between the contesting parties, nor can it be a positive defense to the real matter in controversy. The amendment sought for by the applicant is not material for deciding the said controversy between the parties.
( 1 ) BY this application under order VI Rule 17, Civil Procedure Code defendant no. 2,ereinafter referred to as the applicant, seeks leave to amend the written statement filed sometime in September 1985, by incorporating two new paragraphs mentioned in the application. In substance, the applicant wants to raise a plea that he has become absolute owner of the back portion of the property bearing no. 7/32, Roop Nagar, Delhi by virtue of a Will dated 27 October 1983 executed by late Sh. Sant Singh, co-owner of the suit property and defendant no. 1 herein.
( 2 ) THE application has emerged under the following circumstances :- The suit property originally belonged to one Sh. Man Singh, father of the plaintiff and defendant no. 1. He had executed a Will on 1 September 1956, bequeathing the property to his wife, Smt. Jeevan Dei. Sh. Man Singh died on 22 June 1972 and his will was probated on 30 August 1973. Smt. Jeevan Dei, on her part, executed a will on 5 September 1974, bequeathing specific portions of the suit property to her two sons namely, Sh. Dalip Singh-the plaintiff and Sh. Sant Singh-defendant no. 1. A site plan was also attached with the Will specifying the respective portions of two brothers. Smt. Jeevan Dei died on 29 June 1977 and on a joint application by the plaintiff and defendant no. 1, High Court of Malawi, Central Africa, granted probate in respect of the said will. On the strength of the said probate the property was mutated by the DDA in the joint names of the plaintiff and defendant no. 1.
( 3 ) IT seems that after mutation defendant no. 1 entered into an agreement, dated 16 January 1981, to sell his share in the property with the applicant. Perhaps there was some default on the part of defendant no. 1 in not executing the sale deed in favour of the applicant with the result that in the year 1981 the applicant filed a suit (No. 1399/81) against defendant no. 1 for specific performance of the said agreement and on 17 November 1983 a consent decree was passed in favour of the applicant. Thereafter, admittedly, the applicant has been in possession of the back portion of the property but sale deed in respect thereof has not yet been executed. There being some dispute with regard to the area in possession and occupation of the applicant, the plaintiff filed the present suit for partition of the entire property by metes and bounds on the plea that sale deed having not been executed in favour of the applicant-defendant no. 2, the title in the property still remained with defendant no. 1, there had been no partition of the property by metes and bounds between the plaintiff and defendant no. 1, he sues for partition of the same. However, confronted with the situation that late Smt. Jeevan Dei had already effected partition of the shares which were to go to her sons, the suit for partition may not be maintainable, the plaintiff, with the permission of the court, amended the plaint; converted it into a suit for possession of portion of the suit property by way of partition or otherwise, with an alternative prayer for possession of the strip of land admeasuring 56 sq. yards, which was alleged to have been encroached upon by the applicant.
( 4 ) IN the written statement filed by the applicant, to the original plaint as well as to the amended plaint, his stand is that he is purchaser of defendant no. 1 s portion of the property for consideration and is in exclusive, uninterrupted and independent possession thereof, including the alleged excess portion, by virtue of decree dated 17 November 1983 as was in possession of Sant Singh on 16 January 1981, when the registered agreement to sell was concluded between him and Sant Singh. Defending possession of the entire portion in his occupation, it was pleaded by the applicant that though Smt. Jeevan Dei had demarcated the property in two portions but after her death the plaintiff and Sant Singh found it difficult to enjoy the separate portions so demarcated in the
