The main legal point established in the judgment is that an amendment seeking to incorporate additional evidence, when the plea has already been set up in the original plaint, may be considered mala fide and impermissible.

M.M.Kumar, J.

1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code), is directed against the order dated 3.8.1994, passed by the learned Additional District Judge, Sangrur, allowing the application of the plaintiff-respondents seeking an amendment in the plaint at the stage of appeal filed under Section 96 of the Code, which is pending consideration of the learned lower appellate Court.

2. Brief facts of the case are that the plaintiff-respondents had filed a suit for joint possession, declaration and permanent injunction by challenging two sale deeds dated 6.3.1990 executed by their rather Gurdev Singh in favour of the defendant-petitioners. The defendant-petitioners are the nephews of Gurdev Singh, who is father of the plaintiff-respondents. One of the sale deeds was executed in favour of defendant-petitioners Nos. l to 4 and the other sale deed has been executed in favour of defendant-petitioner Nos. 5 and 6. A specific plea had been taken that the property is ancestral in nature as is evident from the pleadings in paras 3, 4 and 5 of the plaint which reads as under:

3. That previously Jangir Singh deceased was the owner of the suit land shown in part A of the head note of the plaint and it devolved upon him from his father Gandhi and land shown in Part B of the head note of the plaint was purchased by late Jangir Singh son of Khushala out of the joint labour, endeavour and income, from the common stock funds derived by late Jangir Singh with the joint labour and vigil of his sons as a benami transaction, though it was never purchased by his sons from their independent income of their own or by spending the consideration meant from their own pockets. So the property stated in Part "B" of the heading of the plaint became ancestral, coparcenary, joint Hindu family in nature since the time of its purchase (though it was benami purchase) as regards the rights of the plaintiffs as coparcener being born during the life time of their grand father.

4. That the plaintiff and defendant No. 1 constitute Hindu Joint Family and the plaintiffs are coparceners by birth in the 1/3rd share of their father to extent of 2/3 share. The defendant No. 1 had no right to alienate his share from the suit land without any legal necessity and except for the benefits of the estate.

5. That defendant No. 1 is karta (Manager) of the Joint Hindu Family property and the 1/3rd share of defendant No. 1 out of the suit land detailed in Part "A" and "B" of the heading of the plaint is ancestral, and joint Hindu family property and which is the copacenary property among the plaintiffs and defendant No. l. The plaintiff and defendant No. 1 constitute a joint Hindu family coparcenary and are governed by their personal law i.e. Mitakshra School of Hindu Law and Karta of a joint Hindu family had no right to alienate the coparcenary property without any legal necessity and except for the benefit of the estate because the coparceners had (possess) their respective share in the same.

3. The parties have gone on trial after having fully understood the case. The trial Court in his decision dated 28.8.1993, under Issue No. 4 has dealt with the aforementioned controversy as is evident from the reading of portion of para 12 of its judgment. It is also evident from the reading of paras 23 and 26 that the plea had already been taken and the plaintiff-respondents had failed to establish the fact that the property was joint Hindu family and coparcenary property in the hands of their father. It has further been held that they failed to prove that they acquired right in the suit property by birth.

4. Against the judgment of the trial Court, dated 28.8.1992, the plaintiff-respondents preferred an appeal under Section 96 of the Code. During the pendency of appeal an application under Order VI Rule 17 of the code was filed by the plaintiff-respondents for incorporating the following amendment in the plaint:

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