RAJIV NARAIN RAINA, J. - (1.) THE petitioner is the plaintiff before the trial Court. He filed a suit for declaration against the defendants, respondents in this petition, to the effect that he is owner of 1K of agricultural land in the property described in the suit situate in village Tabar, Hadbast No.15, Tehsil and District Panchkula. The defendants are the owners of 1K of agricultural land in village Mauli, Hadbast No.16 of the same district. The plaintiff claims under a memorandum of understanding reached between the parties and reduced in writing in December, 2007 agreeing to exchange of land with one another and on the basis of, an injunction was sought restraining the defendants from interfering in the possession of the plaintiff over a passage carved out by the plaintiff in his land after the exchange. In terms of the exchange, a decree of possession is sought of agricultural land of the defendant in village Mauli. Ownership of land is claimed through exchange alone and the defendants are party to the MOU, have occupied the land accordingly and sunk a tubewell there and therefore there should be restrained from raising any construction in the suit land in village Mauli. It is pleaded that by virtue of paragraph 6 of the MOU the land of the defendant prior to signing MOU was 'directly got registered' in favour of the wife of the first defendant by intervention of the father of the plaintiff. The dispute is with respect to the passage. The suit was filed in May, 2009.
(2.) THE defendants contested the suit by filing their written statement in December, 2009 in which they raised a preliminary objection to the effect that the MOU was not an exchange deed nor any agreement to exchange the land and was thus not admissible in evidence for want of registration and payment of stamp duty and has also not been executed by a person competent to do so. It was contended by the defendants that the plaintiff and his father were to purchase land falling in revenue numbers 29/521/312 comprised in 2K -14M of land situated beside the Highway adjoining the village Tabar land but the exchange was never pursued for more than a year of the MOU and therefore the exchange was not an accomplished fact. It is thus suggested that the same is not legally operative and governing the rights of the parties. It was denied that the plaintiff was not in possession of any passage and is thus not entitled to a decree of possession of land bearing Khasra No.10/25/1 of village Mauli which is owned by the defendant while the land at village Tabar is owned by S.P.Gupta and FPI Automation and others are not before the Court as also other owners who are necessary and proper parties but have not been joined in the proceeding. The issues in the suit were framed by the court on 29th May, 2013 and the case was posted for plaintiff's evidence. Prior to recording of evidence of any of the plaintiff's witnesses, the plaintiff filed an application in August, 2013 under Order 23 Rule 3 read with Section 151 of the Civil PC for permission to withdraw the suit owing to formal defects with permission to institute a fresh suit in respect of the subject matter on the same cause of action. The plaintiff submits that the learned trial Court without calling for a reply to the application from the defendants rejected the application on 6th August, 2013 and re -fixed the case for 23rd August, 2013 for evidence of the plaintiff since the suit was an old one lingering on. The learned trial Court granted the defendants a special but last and final opportunity, failing which, their evidence would be deemed to be closed. On 23rd August, 2013, the plaintiff examined 7 witnesses by presenting their affidavits by way of examination -in -chief containing their deposition. Consequently, the cross -examination of the witnesses was deferred on the request of the learned counsel for the defendants and the case was adjourned to 10th September, 2013.
(3.) ON the next date of hearing, the plaintiff filed two applications, one under Order 6 Rule 17 of the Civil PC for amendment of the plaint and the other for amending issue No.2 making an oral prayer at the hearing that the amendment deserves to be carried prior to cross - examination of the witnesses of the plaintiff. The plaintiff complains that he was directed to examine his witnesses prior to the consideration of the application for amendment of the plaint and re -framing of issue No.2 which led to the testimony of one witness being recorded and the cross - examinations of PW3 and PW4 not being completed due to paucity of Court time and therefore the case was adjourned to 30th September, 2013 for cross -examination. On 17th October, 2013, the defendants filed reply to the application for amending the plaint. The plaintiff did not take recourse to further remedies against the previous order and closed his evidence on 26th January, 2014 while the defendants went ahead and led their evidence and closed it on 26th February, 2014. Thereafter, the application for amendment of the plaint was dismissed vide order dated 14th March, 2014 against which the present petition has been filed belatedly on 22th , August, 2014.;