HARBILAS OCHCHELAL Vs. KOKABAI

JUDGEMENT

(1.) THIS petition is for revision of an order dated 27-4-1978 passed by the First Additional District Judge, Bhind, in Civil Appeal no. 44/a of 1977, preferred against decree dated 9-4-1976 passed by Civil judge, Class II, Gohad in Civil Suit No. 8/a of 1972.

(2.) THE facts are as follows : Durjan and Ocche were real brothers. Durjan died on 16-11-1971 leaving a widow Kokabai (respondent No. 1) and a daughter Javitribai (respondent No. 2 ). Ocche was the recorded Bhumi-swami of certain fields situated at village Nonera and was in cultivating possession thereof. In the month of January 1972, the respondent 1 and 2 instituted the above-mentioned Civil Suit No. 8/a of 1972, against Ocche for the joint possession to the extent of half share in those fields. The plaint-allegations were that before coming into force of the M. B. Zamindari Abolition Act (Act 13 of 1951), the Zamindari of the village was the joint property of the two brothers Durjan and Ocche and those fields were their Khudkasth. On coming into force of the said Act they became Pakka tenants and on coming into force of the M. P. Land Revenue Code, 1959 (Act 20 of 1959)Bhumiswami of those fields but, after the death of Durjan, Ochhe denied the title of the respondents 1 and 2 and ousted them from possession of the fields. The defendant Ochhe denied the allegations and the claim. According to him he and Durjan did not constitute a joint Hindu family and the field in question were Khudkasth of him alone. Durjan had no interest in those fields. On coming into force of the M. B. Zamindari Abolition Act (Act 13 of 1951) he alone became Pakka tenant thereof and on coming into force of the M. P. Land Revenue Code, 1959 (Act 20 of 1959) he alone acquired bhumiswami rights therein. It was also contended that the suit was barred by time. The trial Court upheld the defendant's contentions and dismissed the suit. The respondents 1 and 2, i. e. the plaintiffs preferred Civil Appeal no. 44/a of 1977 against that decree. The appeal was presented on 5-5-1976, i. e. before coming into force of the Civil Procedure Code (Amendment) Act, 1976 (Act 104 of 1976 ). Ochhe died during pendency of the appeal and the present petitioners and the respondents 3 and 4 were brought on record as his legal representatives.

(3.) DURING pendency of the appeal the appellant plaintiffs (present respondents 1 and 2), on 17-12-1977 filed an application for amendment of the plaint. Thereby they wanted to plead that the fields in question were khudkasht of the joint family Zamindari of Durjan and Ochhe and both of them were jointly cultivating the same as partners each of them having half share. On 7-4-1978, another application was filed by them for admission of some documents in evidence. After hearing arguments on 18-4-1978 and 19-4-1978, the appellate Court by order dated 27-4-1978 without discussing merits of the case allowed the amendment-application subject to payment of cost Rs. 50 and the other application subject to payment of cost Rs. 10. That order dated 27-4-1978 is the subject-matter of this revision.