RAJIV NARAIN RAINA, J. - (1.) THIS petition is directed against the order dated January 17, 2014 passed by the Additional Civil Judge (Senior Division), Guru Har Sahai declining the application of the petitioner for amendment of pleadings invoking Order 6 Rule 17, CPC. The application was filed on October 7, 2013. The issues were framed long ago on January 19, 2007. The suit was filed by Rulia Singh and Smt. Dhanno. Isher Singh was the grandfather of plaintiff No.1. Plaintiff No.2 is the daughter of Isher Singh. There are 18 defendants in the original suit in which the plaintiff claims possession of land measuring 39 K and 8 M being one third share each of plaintiff Nos.1 and 2 thereby totalling 1/3rd share out of total land measuring 118 K 7 M comprised in Khewat, Khatouni and Killa numbers mentioned in the head note to the plaint falling in the revenue estate of village Guru Har Sahai, Tehsil and District Ferozepur. The claim is based on title reflected in the Jamabandi for the year 1998 -99. Mittal Manju 2014.04.22 15:53 I attest to the accuracy and integrity of this document Chandigarh CR No.2343 of 2014 -2 -
(2.) THE original suit was for possession simplicitor based on inheritance by succession opening on the death of Isher Singh. Declaration was not prayed for in the suit. The present application was filed in October 2013 proposing to amend the plaint to include in the prayer clause an amendment to the effect that the plaint be read as a suit for declaration of 1/6th share each by way of inheritance of Isher Singh and for possession of the suit property. Apart from addition in the prayer clause, a substantial change was sought in para.4 of the plaint in the 10th line by introducing an altogether new matter with respect to a testamentary Will of Isher Singh and that it was surrounded by suspicious circumstances not proved beyond any reasonable doubt. The reason for such proposed amendment is set out in para.2 of the application. It is averred that during recording of the evidence of the plaintiffs, it was advised by their counsel that due to inadvertence, misunderstanding and oversight, the relief of ownership by way of inheritance through Isher Singh could not be claimed and a mere suit for possession had been filed which was ill conceived. The amendment was necessary, according to the plaintiffs, to enable them to enjoy the fruits of a decree likely to be passed in their favour in the present suit as they were advised so and were thus sanguine that such a decree deserved to be passed in their favour based on the new ground.
(3.) IN the body of the application, there is absence of any averment with respect to the Will or from where this fact came to their knowledge. The plea was sought to be introduced in pleadings at a belated stage. There is not even an iota of pleading that despite due diligence the factum of Mittal Manju 2014.04.22 15:53 I attest to the accuracy and integrity of this document Chandigarh CR No.2343 of 2014 -3 - existence of the testament could not be known or that the Will was not previously known to the plaintiff and therefore the amendment sought is sustainable. The original owner of the property indisputably was Isher Singh with a land holding of 118 K 7 M situated in Village Shamali, Tehsil Jalalabad, District Ferozepur. Isher Singh passed away in Guru Har Sahai on November 4, 1971 leaving behind three sons and an equal number of daughters. It is averred in the suit that the defendants in connivance with Revenue Officers got mutation No.4411 sanctioned in the defendants favour in equal shares on the basis of the Will dated March 26, 1971. It is not the case of the plaintiffs that they did not know of the Will and the mutation that followed and confined their suit as one for possession of property mistakenly. It is not disputable that no period of limitation is prescribed for filing a suit for possession of property or a share therein on the basis of inheritance. But if there is a Will of a testator departing from the order of natural succession, and the Will is not challenged for want of right enuring in the testator to dispose property but due to suspicious circumstances in its making, then the cause of action accrues when the right to sue accrues. The plaintiff does not help the court in his application with the date of knowledge of the Will executed in 1971 when the defendants interest became adverse to him so as to locate the date whenabout the cause of action occured and the right to sue accrued. The plaintiff is not a stranger being a member of the family. Article 65 of the Indian Limitation Act, 1963 (ILA) prescribes limitation for a suit for possession of immovable property or any interest therein based on title is twelve years from when the possession of the defendant becomes adverse to the plaintiff. A suit by a Mittal Manju 2014.04.22 15:53 I attest to the accuracy and integrity of this document Chandigarh CR No.2343 of 2014 -4 - person excluded from a joint -family property to enforce a right to share therein, the period of limitation fixed is twelve years by prescription in article 110 ILA when the exclusion becomes known to the plaintiff. The defendants contested the application and objected that the proposed amendment would change the very nature of the suit and the relief presently claimed is time barred having been brought on October 7, 2013 for a Will executed in 1971, the suit being filed in 2006 or thereabout. By the proposed amendment, the plaintiff wants to challenge the Will as one surrounded by suspicious circumstances and not proved beyond any reasonable doubt. The trial Court has upheld the objections of the defendants and declined the application.;