S.C.CHAURASIA, J. - (1.) THIS Civil Revision under Section 115 of the Code of Civil Procedure has been preferred against the impugned order and the formal order dated 12-08-2008 passed by the learned Additional District Judge, Court No. 2, Raebareli, in Civil Appeal No. 09 of 2007, Liyakat Khan and others Versus Tahira Begum and another, whereby, he allowed the appellants/plaintiff's' application 20-Ka for amendment in the plaint on payment of Rs.500/- as cost.
(2.) THE brief facts, giving rise to this revision, are that the plaintiffs filed O.S. No. 781 of 1999, Liyakat Khan and others Versus Smt. Tahira Begum and another, for partition in the court of Civil Judge(Junior Division), Sadar Raebareli with the prayer that plaintiff's' 2/3rd share in the disputed property may be partitioned and separated on the ground that parties ancestor Sri Mardan Khan had acquired the property in suit, detailed and described in the plaint and parties have inherited the said property in accordance with the provisions of Mohammedan Law and they are joint owners in possession of the said property. In the said property, the plaintiffs have 2/3rd share and the defendants have 1/3rd share. Their share may be partitioned and separated as the defendants are not ready for mutual partition. The defendants filed Written Statement and denied the plaintiffs' version. Their version is that the defendants along with family members are residing in the property in suit for the last about 50 years and the plaintiffs and their family members are residing in the house of their share situated at village-Pure Meharvan Khan Ka Purva, hamlet of oya, Tahsil-Maharajganj,District-Raebareli. Abdul Majid Khan was the owner of disputed house, who was the maternal grand-father of the defendant. Smt. Sabira Bibi was the daughter of Abdul Majid Khan and defendant no. 1 is the daughter of Smt. Sabira Bibi. The marriage of Sabira Bibi was performed with Mardan Khan and Mardan Khan died during life time of Sabira Bibi. Thus, Sabira Bibi became the sole owner of the house of Abdul Majid Khan and Mardan Khan did not become the owner of the said house. Smt. Sabira Bibi provided the house in suit to her daughter, defendant no. 1, through a will deed dated 07-05-1992. Mardan Khan was the resident of Village-Pure Meharvan Khan Ka Purva, district-Raebareli and he provided the house situated there to his sons, Kasim and Liyakat and they are residing in the said house alongwith their family members. Sri Mardan Khan was never the owner of the disputed house. The defendant is the owner in possession of the said house as per terms of the will deed. The plaintiffs have no share in the said house and hence, the suit for partition is liable to be dismissed. On the pleadings of the parties, learned Civil Judge (Junior Division), Raebareli, framed three issues. After considering the evidence produced by the parties, learned Civil Judge held that the plaintiffs have failed to establish that the property in suit was acquired by Mardan Khan and the plaintiffs have 2/3rd share in the said property. Consequently, the suit was dismissed vide judgment and order dated 27-02-2007 passed by the learned Civil Judge (Junior Division), Raebareli. Feeling aggrieved by the said judgment and decree, the plaintiffs preferred a Civil Appeal No. 09 of 2007, Liyakat Khan and others Versus Smt. Tahira Begum and another, in the court of District Judge, which was transferred to the court of Additional District Judge, Court No. 2, Raebareli.
(3.) DURING pendency of the appeal, an application under Order 6 Rule 17 readwith Section 151 C.P.C. was moved on behalf of the appellants-plaintiffs for amendment in the plaint on the ground that the parties are related to late Mardan Khan and his wife Smt. Sabira Bibi and they have inherited the property left by them jointly or severally. If it is found that the disputed property was acquired by late Smt. Sabira Bibi, parties are entitled to get their respective share by decree of partition and hence, proposed amendment is essential and after amendment, no additional evidence is required. The plaintiffs have sought amendment in para 2 of the plaint to the effect that it may be added that "Yadi Sampatti Vad Swargiya Sabira Bibi Ki Arjit Bad Mrityu Chhodi Sabit Pai Jaye To Bhi Pakshkar Swargiya Mardan Khan Ankit Sajra Ki Arjit Va Bad Mrityu Chhodi Sampatti Ke Saman Hi Hissa Bantwara Se Pane Ke Hakdar Honge." ;