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S.B. CIVIL WRIT PETITION NO.935/2007.

Laxman Singh & Ors.

Vs.

Civil Judge (J.D.), Deogarh & Anr.

Date of Order :: 16^th May 2008.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Sandeep Shah, for the petitioners.

Mr. Sandeep Sarupariya, for the respondent No.2.

...

Reportable BY THE COURT:

This writ petition is directed against the order dated

06.01.2007 (Annex.5) passed by the Civil Judge (Junior

Division), Deogarh (Rajsamand) in Civil Suit No. 2/2004

rejecting the application for amendment of the written

statement as moved by the defendants-petitioners.

Briefly put, the background facts and relevant aspect are

that the plaintiff Kishan Singh (respondent No.2) and the

defendant No.1 Laxman Singh (petitioner No.1) are bothers;

the defendant No.2 Deepak (petitioner No.3) is the son of

defendant No.1; and the defendant No.3 Smt.Kamla (petitioner

No.2) is the wife of the defendant No.1. By way of the

present suit, as filed on 01.05.2004 against the defendants

Nos.1 and 2, the plaintiff has sought perpetual injunction with

the averments, inter alia, that a 30' x 45' plot of land as

described in paragraph 1 of the plaint is of his ownership and

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has been in his possession ever since it was allotted to him by

Gram Panchayat, Lasani on 30.11.1975; that after leaving a

way in between, towards eastern side of the aforesaid plot is

situated another piece of land as mentioned in paragraph 2 of

the plaint that was allotted to the father of the plaintiff by Gram

Panchayat, Lasani on 06.03.1963; and that father of the

plaintiff had expired and the plaintiff and the defendant No.1

are in joint possession of the land as mentioned in paragraph

2 of the plaint having ½ share each. While alleging that the

defendants attempted to forcibly raise construction on the land

described in paragraph 1 of the plaint, entered into

altercations, and threatened that they would take over

possession of father's plot too, the plaintiff has prayed for

injunction that the defendants be restrained from interfering

with the land described in paragraph 1 of the plaint and further

be restrained from raising construction or interfering with joint

possession of the plaintiff on the property described in

paragraph 2 of the plaint.

Perusal of the record makes out that the plaintiff also

filed an application for temporary injunction with the said suit;

and on 04.05.2004, while the original defendants Nos. 1 and 2

(present petitioner Nos. 1 and 3) put in appearance and filed

their reply, the present petitioner No.2 Smt.Kamla moved an

application for being impleaded a party to the proceedings with

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the submissions that the land in question as described in

paragraph 2 of the application for temporary injunction (i.e.,

the land described in paragraph 1 of the plaint) is of her

exclusive ownership and possession having been gifted by her

husband Laxman Singh (defendant No.1); and earlier the land

was purchased by her husband from Harendra Singh son of

Kushal Singh Rajput for a consideration of Rs. 271/- and had

been in his possession for about 39 years. The applicant

claimed herself to be a necessary party having direct interest

as owner of the property in question. The application as

moved by the petitioner No.2 was allowed by the learned Trial

Court on 21.05.2004 and she was ordered to be joined as

defendant No.3 in the suit and as non-applicant No.3 in the

application for temporary injunction. It is borne out from the

record that the application for temporary injunction was

allowed by the learned Trial Court on 03.06.2004; and the

defendants have been restrained from interfering with the land

in question.

In the suit proceedings, the defendants-petitioners filed

their joint written statement on 03.08.2004 and while stating

that the land described in paragraph 1 of the plaint was of 40'

x 60' size and not 30' x 45' as alleged by th