- (1.) This writ petition has been filed for quashing the order dated 15.7.1997 and 15.1.1993, by which amendment application was rejected by the Trial Court, but the revisional Court has allowed the application filed by the respondent. Hence, the petitioner filed present writ petition against the said orders. The facts arising out of the writ petition are that shop in dispute No. A/157 along with other properties originally belonged exclusively to Mohammad Yusuf. There was an oral gift in favour of the plaintiff-Waqf after giving possession to the donee. Subsequently, a suit was filed, which was numbered as Suit No. 51 of 1979 by the plaintiff-Waqf against Mohammad Yusuf for declaration. In the said suit Mohammad Yusuf appeared and admitted the claim of the plaintiff by filing a compromise dated 6.3.1979, on which basis the suit was decreed by judgment dated 22.3.1979. One Ishtiaq Ahmad (opposite party No. 3) was tenant of one of the shops in dispute and paying Rs. 40/- per month as rent. He deferred the payment of rent w.e.f. 1.6.1978, therefore, his tenancy was determined after giving notice. A suit was filed in the Court of learned Munsif for recovery of possession and for payment of arrears of rent. The defendant in his statement pleaded that there was neither any contract of tenancy nor relationship of landlord and tenant and Mohammad Yusuf did not create any Waqf. It was further pleaded that Mohammad Yusuf was brother of Mohammad Yunus (defendant's father), therefore, there was no question of creating any Waqf by Mohammad Yusuf depriving the sons of Mohammad Yunus. The plaintiff has wrongly got entered its name in the municipal records. An averment to that effect was made in para 14 of the written statement. The same is being quoted below: 14. That the true facts are that the property in dispute and adjacent residential house and other shops were jointly constructed by father of the defendant Mohammad Yunus and his elder brother Haji Mohammad Yusuf from their joint earnings and since the date of construction the tenant's father Mohammad Yunus had been in possession of the property as co-sharer, along with Mohammad Yusuf and Mohammad Yusuf at the time of his death left his brother Mohammad Yunus as legal heir. In this way, Mohammad Yunus became the exclusive owner of the property in dispute and the water and electricity connections of the property in dispute and adjacent entire property had been in the name of Mohammad Yunus. All allegations contrary to it are denied.
(2.) On the basis of aforesaid pleadings, various issues were framed. When the suit was ripe for hearing an amendment application was filed by the defendant on 17.2.1992, in which he took a different plea and wanted to resile from his admission made in the earlier written statement, quoted above, and tried to set up his rights and title on the basis of adverse possession. An objection was filed and Trial Court by order dated 15.1.1993 was pleased to dismiss the application for amendment. On a revision preferred by the defendant, the revisional Court vide order dated 15.7.1997 allowed the revision and permitted the amendment to be incorporated in the written statement. Hence, the present writ petition has been filed by the plaintiff-petitioner.
(3.) It has been submitted on behalf of the petitioner that the respondent cannot resile from his admission made in the written statement. As regards title of the plaintiff Mohammad Yusuf is concerned, it stands settled in view of judgment dated 22.3.1979 in Suit No. 51 of 1979 and that decree is intact, therefore, nobody can challenge it. Further submission has been made that if an admission has been made in the written statement, which is apparent from para 14 of the written statement, nobody can resile from said statement. The defendant having admitted ownership of the petitioner cannot say by a new plea that he has accrued a right by way of adverse possession. The Revisional Court has committed material irregularity and has committed grave jurisdictional error in allowing the revision. Notices were issued, but no counter affidavit has been filed.;