M.M.KUMAR, J. - (1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings recorded by both the Courts below holding that the plaintiff- respondent is the real brother of the defendants-appellant and is entitled to 1/4th share in the property in question. Therefore, suit for possession was decreed and preliminary decree for possession of 1/4th share in the property in dispute through partition was passed in favour of the plaintiff-respondent. The defendants-appellant have claimed that the following substantial questions of law would arise for determination of this Court : (i) Whether the findings contained in the impugned judgment are perverse, as they have illegally discarded the memorandum of partition dated 11.6.1967 (Mark-A) executed between brothers; on the ground of absence of pleadings ? (ii) Whether the memorandum of partition dated 11.6.1967 (Mark-A) signed by all the brothers i.e. plaintiff and defendants has been illegally discarded, especially when the defendants-appellants were allowed to lead their evidence to prove the same by examining DW-1 to DW-7 ? (iii) Whether the findings of lower appellate court qua dismissing application under Order 6 Rule 17 CPC for amendment of written statement, as it will change nature of defence are perverse and the same are liable to be set aside in the light of judgment of Hon'ble the Supreme Court in the case of Usha Balashaheb Swami v. Kiran Appaso Swami, 2007(2) RCR(Civil) 830 : 2007(1) RCR(Rent) 457 : 2007(2) RAJ 502 (SC). ? (iv) Whether both the courts below should have relied upon memorandum of partition (Mark-A) in order to ensure peace and harmony between brothers, by ignoring technicalities etc. as held under para no. 43 to 45 of the judgment of Hon'ble the Supreme Court in the case of Hari Shankar Singhania v. Gaur Hari Singhania, 2006(2) RCR(Civil) 454 : 2006 AIR SCW 3330 ? (v) Whether the suit of the plaintiff is liable to be dismissed because of non joinder of necessary parties i.e. sisters of the parties ?
(2.) BRIEF facts of the case are that the plaintiff-respondent filed a suit for possession through partition of 1/4th share of two houses detailed as under : "a) One house consisting of one hall, one bathak, one Chubara, one kitchen, one Deorhi and court yard bounded as under :- East : street, West : house of Babu ghamiar and house of Sardara, North : houses of Noor and Wali, South : thoroughfare, situated in village Dahliz Kalan, tehsil Malerkotla; b) One house consisting of one room bounded as under :- East : Panchayat Ghar, West : Yussaf, North : thoroughfare, South : plot Baisakhi situated in village Dahliz Kalan, tehsil Malerkotla." The plaintiff-respondent has claimed that he and defendants-appellant are real brothers and the property in dispute was in joint possession of the parties. It was pleaded that the plaintiff-respondent was in possession of 1/4th share whereas the defendants-appellant were occupying 3/4th share. Since the plaintiff-respondent did not want to keep the suit property joint with the defendants-appellant, he instituted the aforementioned suit. While appearing as PW1, the plaintiff-respondent in his cross examination stated that his father Rahim Bakash was having two wives, namely, Kaki and Bakshi. He was born out of lions of Rahim Bakash and Kaki whereas the defendants-appellant were born from the second wife of Rahim Bakash, namely, Bakshi. This version of the plaintiff-respondent was also supported by Shri Nahar Singh, DW1. The defendants-appellant examined a number of witnesses including Nahar Singh, DW.1, Ram Chand DW.2 and Ram Rachhpal DW.3, who deposed that property left by Rahim Bakash was partitioned between the parties and a partition deed was accordingly got executed. However, an objection was raised by the counsel for the plaintiff-respondent that since the said partition deed was not a registered document, the same could not be looked into and exhibited in terms of Section 49 of the Indian Registration Act, 1908. On the basis of evidence led by the parties, the learned Trial Court has recorded a finding that no specific plea was taken by the defendants-appellant in their written statement that property in dispute had been partitioned between the parties and the partition deed Mark 'A' is not admissible in evidence. Learned Trial Court concluded that the plaintiff-respondent and the defendants-appellant are sons of Rahim Bakash and the plaintiff-respondent is entitled to 1/4th share in the property in suit. Accordingly, a preliminary decree dated 15.6.1978 was issued in favour of the plaintiff-respondent.
(3.) FEELING aggrieved, the defendants-appellant filed an appeal before the lower Appellate Court. The arguments in the aforementioned appeal were concluded on 7.2.1979 and orders were reserved. However, on 8.2.1979, the defendants-appellant filed an application under Order VI Rule 17 of the Code seeking amendment of the written statement with permission to plead that there has been a partition between the parties and in terms thereof the plaintiff- respondent is not entitled to the share in the houses. The aforementioned application was dismissed by the learned lower Appellate Court vide order dated 13.11.1979, holding that a new plea was sought to be introduced by the amendment which would completely change the nature of the defence. The learned lower Appellate Court has referred to various judgments and concluded in the aforementioned terms in its order dated 13.11.1979, as is discernible from the following extract :- "5. ... ... Giving my due consideration to the matter I feel that the amendment in the present case is not justified in as much as the appellants are trying to set up a new case contradictory to the case originally propounded. No doubt the case of Hari Chand v. Het Ram [1978 PLR 458 (SC)] supports the argument of the learned counsel, the facts of the case M/s Ganesh Trading Company supra are distinguishable. In that case the suit was instituted by one of the partners of the dissolved firm but it was not mentioned as to in which capacity the suit has been filed. The amendment was sought to correct that defect. Otherwise Their Lordships ruled that if the plaintiff seeks to alter the cause of action itself or to introduce indirectly through an amendment of his pleadings an entirely new and inconsistent cause of action amounting virtually to the substituting of a new plaint or a new cause of action in place of what was originally there the court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. In the case of Dia Ram supra no new case was set up and in fact it was a case of an additional ground in addition to the already existing grounds to defeat a claim for pre-emption. It was under those circumstances that the amendment was held to be justified. 6. On the other hand, the view expressed by our own High Court in Kundan Lal Verma v. Shushila Devi, 1971 Current Law Journal 1024., is that the amendment by means of which a party seeks to set up a new case or a new cause of action is not permitted. A similar view has been expressed in the case of Haji Mohammed Ishaq v. Mohammed Iqbal and another, 1978 U.J. (Supreme Court) 474, in which Their Lordships of Supreme Court held that the amendment of the written statement sought was on such facts which if permitted to be introduced by way of amendment would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken either at the time of dealings between the parties or in the original pleadings. The amendment was therefore held to have been rightly refused by the High Court." Consequently, the lower Appellate Court also dismissed the appeal concurring with the findings of the learned Trial Court, vide order dated 27.11.1979. Likewise, the main appeal was also dismissed by the learned lower Appellate Court by banking upon the findings of the learned Trial Court. The document Mark-A, which was sought to be tendered in evidence, had not been considered by the Trial Court and the learned lower Appellate Court also refused to consider the same as no foundation providing the base for admission of document Mark-A in evidence was laid in the pleadings. The view of the learned lower Appellate Court is discernible from paras 5 and 6 of the judgment dated 27.11.1979, which is as under :- "5. The learned counsel for the appellants tried to argue that the lower court has failed to appreciate the evidence on the record in as much as the document mark A has not been admitted into evidence and according to that document partition between the parties is proved. Without discussing the admissibility of the documents I am of the opinion that the argument is not tenable in as much as there is no plea in the written statement filed by the appellants in the lower court to that effect. In fact the appellants tried to make up the deficiency during the course of the appeal by filing an application for amendment of the written statement which has been already disallowed by me. ;