- (1.) D. S. Sinha, J. This appeal under Section 100 of the Code of Civil Procedure, 1908, is directed against the decree and judgment dated 19th March, 1991 passed by the Addl. District Judge, Jalaun at Orai in Civil Appeal No. 20 of 1990 reversing the decree and judgment of the Munsiff Jalaun, dated 5th February, 1990 rendered in Original Suit No. 12 of 1984 between the plaintiff-appellants and the defendant-respondents for cancellation of the sale-deed dated 24th January, 1983 executed by the defendant No. 2 hereinafter called the Vendor, in favour of Sri Jang Jeet Singh the defendant-Respondent No. 1, hereinafter called the Vendee, in respect of the property in dispute.
(2.) THE claim of the appellants for cancellation of the sale-deed was founded on the plea that they were the owners of 2/3rd share in the disputed property and the Vendor had no right or title to execute the sale-deed in respect of their share. The claim of the plaintiff-appellants was resisted by the Vendee. He pleaded that the plaintiffs did not have any share in the disputed property. In the alternative, it was pleaded by him that he was a bona fide purchasee for value and without notice of the factum of alleged share of the plaintiffs in the disputed property. Certain other legal pleas besides the plea regarding valuation and court-fees were also set up by the Vendee. The Vendor, who figured as one of the defendants in the suit, admitted the claim of the plaintiff-appellants that they had 2/3rd share in the disputed property. After considering the evidence on record the trial Court found it, as a matter of fact, that the plaintiff, appellant had 2/3rd share in the property in dispute. It also found that the Vendee had due notice of the 2/3rd share of the plaintiff-appellants in the property in dispute and his plea that he was a bona fide purchaser for value and without notice of the share of plaintiff-appellants was untenable. On other issues also the trial court found against the Vendee. Consequently, the trial Court held that the sale- deed to the extent of 2/3rd share of the plain tiff-appellants was illegal and decreed the suit for its cancellation qua 2/3rd share of the plaintiff-appellants.
(3.) ON appeal the first appellate court reversed the decree and judg ment of the trial Court and dismissed the suit of the plaintiff-appellants. In support of its decree and judgment, the first appellate court has given following reasons: (i) that the plaintiff-appellants did not approach the court with clean hands inasmuch as they did not put forward their claim for 2/3rd share in the disputed property when they filed the suit and introduced the same by amendment in the plaint at a later stage: (ii) that the suit was collusive, there was collusion between the plaintiff-appellants and the Vendor who were real brothers; and (iii) that the trial Court decreed the suit of the plaintiff-appellants only on the admission of the Vendor in respect of the 2/3rd share of the plaintiff-appellants. After giving its anxious consideration, this Court is clearly of the opinion that none of the reasons given by the first appellate court is tenable, it is well-settled that the amendment in the plaint dates back to the filing of the suit. No doubt the plea of the plaintiff-appellants that they had 2/3rd in the property in dispute and the sale-deed was liable to be cancelled to that extent was introduced by amendment at a later stage but the effect of the amendment is that the plaint will be deemed to have contained the aforesaid plea of the plaintiff-appellants from the date of the institution of the suit.;