HIGH COURT OF HIMACHAL PRADESH
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Chowdhry, J.C. -
(1.) This is plaintiffs' application in revision and it arises in the following circumstances.
(2.) The plaintiffs' father Tulsi created occupancy rights in land measuring 27 Sukh Ram and Ors. vs. Narainoo and Ors. (11.01.1952 - HPHC) Page 1 of 6 bjghas and 3 biswas in favour of 10 persons by a registered deed dated 842- 1997 B. for Rs 2,160/-. Thereupon the present suit was filed by the plaintiffs on 21-9-2002, for a declaration that the alienation will not be binding on them after the death of their father because the property alienated was ancestral property and the alienation had been made without consideration or legal necessity. The alienor, the father of the plaintiffs, and all the alienees were impleaded as defendants. One of the alienees, Kapuro, died during the pendency of the suit in the trial Court and was substituted by his three sons.
(3.) The trial Court decreed the suit on 23-11-1.949 but laid down the condition that the plaintiffs would be entitled to recover possession of the property in suit on payment of Rs. 1,390/- to the alienees. Thereupon four of the alienee defendants filed an appaal before the District Judge on 3-1-1950. On 10-2-51, which had been fixed as the date for arguments by an order dated 5-1-1951, an application was put in before the lower appellatte Court on behalf of the defendants-appellants for the amendment of their written statement by being allowed to plead that the property in suit was not ancestral qua the plaintiffs but rather the self-acquired property of their father Tulsi. The application was contested by the plaintiffs but the learned District Judge allowed it on 15-3- 1951 on the ground that, although strictly speaking the defendants might be deemed under Order 8, Rule 5, Civil P. C., to have admitted the plaint allegation as regards the ancestral nature of the property in suit, the amendment sought by them should be allowed because the written statement filed in the trial Court had been drafted by a petition-writer without the help of a lawyer. The learned District Judge was, therefore, of the opinion that a strict application of the provisions under Order 8, Rule 5, would in the present case result in injustice to the defendants. On the same date, after allowing the aforesaid application of the defendants-appellants, he delivered judgment in the appeal and allowing the appeal remanded the case to the trial Court for permitting the amendment of the written statement and then deciding the issue that might arise in consequence of the amendment and give final decision in the case. The judgment and decree of the trial Court were not set aside by the learned District Judge while allowing the appeal and remanding the case as aforesaid.;
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