SIRADHANA, J. - (1.) IN the above -noted writ application number 13408/2012, a challenge is made to the order dated 25th April, 2012; deleting issues number 1, 2 and 3. In writ application number 13407/2012, the order dated 28th August, 2012, dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure (for short 'the CPC) is under challenge. The writ applications preferred by the petitioners/plaintiffs arise out of the same Civil Suit Number 130/02 (204/84) and therefore, both the writ applications are being adjudicated upon by this common order.
(2.) SHORN of the unnecessary details, the essential material facts and particulars necessary for adjudication of the controversy are; that the petitioners/plaintiffs filed a suit for permanent injunction detailing out the property in paragraph 1 and 2 of the plaint, with the pleadings to the effect that their father Late Shri Babulal Ji Mangal purchased the property, but he got the sale deed executed and registered in favour of his daughter -in -law (Late Smt. Anar Devi), by way of benami transaction. The property, since the date of purchase i.e. 18th December, 1961, was enjoyed as joint Hindu family property. Late Shri Babulal Ji, partitioned the property amongst his five sons of 30th July, 1965 and since then the petitioners/plaintiffs and Shri Krishan Gopal, resided in their respective portions. It is further pleaded case of the petitioners/plaintiffs that two common facilities (latrine) on the ground floor in the suit property, were used jointly, but in order to claim sole right over the common facility area (latrine), Late Smt. Anar Devi (defendant number 1) and her husband Late Shri Krishan Gopal (deendant number 3); moved an application before the Municipal Corporation, Beawar, seeking permission to construct flash latrine in place of existing facility, and thereby intended to deprive the petitioners/plaintiffs from the use thereof. Therefore, the suit was instituted with a prayer for permanent injunction restraining Late Smt. Anar Devi (defendant number 1) and her husband Late Shri Krishan Gopal (defendant number 3) from raising any construction and also the Municipal Corporation, Beawar (defendant number 2) from according any permission. Late Smt. Anar Devi and her husband Late Shri Krishan Gopal, in their written statement, denied the material facts stated in the plaint and in addition, pleaded that since the petitioners/plaintiffs have not sought any declaration to the effect that the suit property was a joint Hindu family property, the suit is not maintainable.
(3.) THE learned trial Court on the basis of the pleadings of the parties framed as many as nine issues on 8th September, 2009 including issue number 1, 2 and 3, which reads thus: JUDGEMENT_1893_RAJLW3_2014.jpg On 25th April, 2012, the learned trial Court on perusal of the plaint and the written statements, concluded that the petitioners/plaintiffs have filed the suit seeking only relief of permanent injunction and have not sought any declaration as to whether the property in dispute was a joint Hindu family property, and have neither sought any declaration to the effect that the purchase of the property in dispute by Lata Shri Babulal was a benami transaction nor have sought any declaration to the effect that they were in possession of the property in dispute as 'owners', and therefore, deleted the issue number 1, 2 and 3, aforementioned. The petitioners/plaintiffs in view of the deletion of issue number 1, 2 and 3; filed an application under Order 6 Rule 17 CPC on 15th May, 2012 seeking relief of declaration with consequential amendments, including valuation of the suit for the purpose of court fee and jurisdiction of the Court. The application was seriously resisted by the respondents/defendants on the ground of delay and change in the nature of the suit; in case the application is allowed. The learned trial Court on a consideration of the application under Order 6 Rule 17 CPC, its response and after hearing the learned counsel for the parties, dismissed the application vide impugned order dated 28th August, 2012. Therefore, the petitioners/ plaintiffs have assailed order dated 25th April, 2012 on account of deletion of issues number 1, 2 and 3 as well as the order dated 28th August, 2012 declining the application for amendment.;