Satpal & Ors v. Parveen Jain & Anr

1. By the present petition,the petitioners seek to impugn the order dated 18.05.2016 by which the application ofthe respondents under Order VI Rule 17 CPC was allowed.

2. Respondent No.l/plaintiff has filed the present suit for declaration, cancellation, partition, permanent injunction, mesne profits and damages regarding to the suit property.In the plaint, it is stated that the suit property is ancestraljoint family property inherited by respondent No.l/plaintiffand respondentNo.4 his brother.It is averred that a number oftenants,including father of defendant Nos.l and 2/petitioners were inducted by the grand mother and father ofthe plaintiff/respondent during their life time.

3. It is the contention ofthe plaintiff/respondent No.l that he appointed CM(M)843/2016 Pagg, 2016:DHC:9243 respondent No.2/elder brother as attorney after death of his father. The petitioners were paying rent to respondent No.2 who was issuing receipts based on the said power ofattorney.

4. Respondent No.l has now filed the present application under Order VI Rule 17 CPC seeking various amendments, including the amendment seeking possession ofthe entire property claiming that the petitioners and the respondent No.2 never sought permission or consent ofrespondentNo.l since the property is an ancestraljointfamily owned by the respondents.He now seeks to add relief ofpossession ofthe entire suit property and in the alternative seeks a decree of partition in favour of respondent No.l and against the petitioners.

5. By the impugned order,the trial court noted that respondent No.l by the present application only seeks to place on record subsequent developments and seeks possession ofthe entire property. The application was accordingly allowed. Pursuant to the amended plaint, the pecuniary Jurisdiction ofthe suit exceeded thejurisdiction ofthe court and the plaint was returned.

6. The learned counsel for the petitioners has submitted that the nature ofsuit has been changed by the present amendment. He submits that earlier theplaintiffrespondentNo.l had soughtapreliminary decreefor partition as co-owner ofthe property butnow has soughtamendmentseeking possession ofthe entire property. He submits that after amendment,thejurisdiction of the plaint has been enhanced. Hence, the trial court does not have jurisdiction to allow the present application.

7. Admittedly, the suit is at initial stage. The basic controversy centres around the fact that the brother ofplaintiff/respondent No.l is said to have CM(M)843/2016 sold the property as owner to the petitioners who were originally tenants of the suit premises. Asper respondentNo.l,this has done withoutthe consent ofrespondent No.l, which was mandatory. Based on the same,respondent No.l has now sought to carry out amendment which includes seeking relief of possession ofthe entire suit property or in the alternative a preliminary decree for partition as co-owner ofthe property be passed.

8. In my opinion,there are no reasons to differ with the view ofthe trial court. The nature ofthe suit does not change. The present petition is without merit and is dismissed. All the pending applications are also dismissed.

JAYANT NATH,J. AUGUST 30,2016/v c '/V/;-.T/''4S"j I / s.