A party is not allowed to amend their pleadings to set up a new case or a new cause of action, especially when the amendment would convert their defense into a different and inconsistent character.

1. This is an appeal filed by Ishwar and other defendant-appellants against the judgment dated 11th April, 1969, of Shri Banwari Lal Singal, I Additional District Judge, Karnal, by which he dismissed their appeal against the judgment dated 14th August, 1967, of the Subordinate Judge First Class, Karnal, who passed a decree for possession by pre-emption of the land on payment of Rs. 17,309.50, in favour of the plaintiff against them i.e. defendants.

2. The facts of this case are that the land in suit measuring 126 Kanals 16 Marlas situated in the area of village Bir Amin tehsil Karnal belonged to Dial Chand who sold the same to the defendant-appellants for Rs. 15,374.50 on the basis of a registered sale deed, dated 29th April, 1964. The plaintiff Sudesh Kumar who is the son of the vendor filed a suit for possession by pre-emption of this land on payment of Rupees 11,374.50 alleging that he being the son of the vendor had a preferential right of pre-emption to that of the vendees and that the sale took place for Rs. 11,374.50 and the remaining amount was entered in the sale deed fictitiously to deter the pre-emptors.

3. The defendants contested this suit. It was alleged that the plaintiff was not the son of the vendor and had no right to file a suit. They averred that the suit was barred by limitation and that it was a benami suit and the plaintiff was being financed by the vendor for maintaining the suit which may be dismissed. The sale was alleged to have taken place for Rs. 15,374.50. They claimed Rupees 2,000/- spent by them on improvements made by them. Besides this they claimed expenses incurred by them on the execution and registration of the sale deed. On the pleadings of the parties the following issued were framed by the trial Court:-

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"1. Is the suit barred by limitation?

2. Is the suit benami? If so, to what effect?

3. Whether the suit is not maintainable for the reasons mentioned in paras 3 and 4 of the preliminary objections?

4. Whether the plaintiff has got superior right of pre-emption?

5. Whether the sale price was fixed in good faith and paid actually? If no, what is the market value of the land in dispute?

6. In case of decree, whether the defendants are entitled to stamp and registration charges? If so, at what amount?

7. Whether the defendant made any improvements in the land in suit? If so, to what amount and to what effect?

8. Whether the plaintiff is estopped from bringing the suit on account of his conduct?"

The Subordinate Judge held issues Nos. 1, 2, 3, 7 and 8 against the defendant-vendees. Issues Nos. 5 and 6 were held in favour of the vendees while issue No. 4 was decided in favour of the plaintiff. As a result decree for possession by pre-emption of land was passed in favour of the plaintiff against the vendees as stated above. The defendants filed an appeal in the Court of the District Judge, Karnal and it was dismissed by the Additional District Judge, Karnal, on 11th April, 1969. Feeling dissatisfied the vendees-defendants filed this second appeal.

4. The decision of the lower appellate Court was not contested before me on all the issues framed in the case excepting issue No. 2. Besides this it was alleged that the trial Court wrongly dismissed their application for amendment of the written statement to raise new plea that the vendor and the plaintiff constituted a joint Hindu family and the land in suit was joint Hindu Family property and the lower appellate Court also wrongly disallowed this appeal.

5. Issue No. 2 on which the decision of the lower Court is contested is this--"Is the suit benami? If so, to what effect?". In the written statement, in para 2 of the preliminary objection, the defendants had alleged that the suit was benami and the plaintiff was being financed by the vendor for maintaining the suit and the same may be dismissed. The defendants did not lead any evidence worth the name on this issue. The learned counsel for the appellants referred me to the statement of Sud