DINESH MEHTA,J. - (1.) By way of the present Writ Petition under Articles 226 and 227 of the Constitution of India, the petitioners have called in question, the order dated 25.11.2016, passed by the Addl. District Judge No.1, Jodhpur in Civil Appeal Decree No.2/2016, whereby a common application dated 15.03.2016, filed under Order 6, Rule 17 of the Code of Civil Procedure, 1908, to amend the Plaint in Civil Original Suit No. 158/1984 and the written statement in the consolidated Case No.631/1987 has been rejected. The skeleton facts necessary for the adjudication of the present writ petition are set out hereinfra:-
(2.) 1 Petitioners-Plaintiffs, legal representatives of Safi Mohammad, instituted a suit for Permanent Injunction, against Ramjan Khan seeking an injunction restraining the respondents-defendants from interfering in the peaceful possession of their residential house situated at Sindhiyon-Ka-Bas, inside Nagauri Gate, Jodhpur. 2. 2. The substratum of the plaintiffs' case as projected in the plaint was that their, forerunner Late Shri Safi Mohammad was in possession of the land in question for over 100 years, whose possession was hostile to the right and title of the Municipal Board, Jodhpur, and as such the defendants have no right to inference in their long possession. 2. 3. The respondents-defendant No.1 and 2 filed their joint written statement and contested the suit, inter alia, denying plaintiff's adverse possession over the contentious land, while taking a specific plea that the Municipal Board had executed a registered sale deed dated 01.02.1945 in favour of Ramjan Khan pursuant to which they were having title, besides having possession over the subject property. 2. 4. It was also stated in the written statement that another registered sale deed dated 20.09.1978 came to be executed by the State Government, vide which the land in question stood transferred in the name of the defendants-respondents (the legal representatives of Ramjan Khan). 2. 5. The Legal Representatives of Ramzan Khan-respondents also filed a suit seeking possession and mandatory injunction in relation to the very same property contending that the land-in-question was purchased by their predecessor (Ramjan Khan) vide registered sale deed dated 01.02.1945, while the defendants had illegally taken possession of the property on 09.03.1984, when the plaintiff (Late Ramjan Khan) was out of station for his business. 2. 6. The above suit was registered as Civil Original Suit No.631/1987 and was consolidated vide order dated 09.10.1996 with the suit filed by the petitioners (Suit No.158/84). Based on the pleadings of the parties, following issues were framed by the Trial Court on 27.01.2006: ...[VERNACULAR TEXT OMITTED]... 2. 7. Both the consolidated suits, namely Civil Original Suit No.158/84 and Civil Original Suit No.631/87 came to be decided by the Civil Judge and Metropolitan Magistrate, Jodhpur Metro, Jodhpur, vide judgment and decree dated 04.01.2016 (hereinafter referred as 'the Trial Court). The Trial Court rejected the suit of Plaintiffs-Gaffur etc. (petitioners herein) and decreed the suit filed by the defendant-respondents (LRs of Ramjan Khan) vide a judgment and decree dated 04.01.2016, in following terms:- (i) The plaintiffs' (LRs of Gaffur Khan) shall hand over the peaceful possession of the subject property to legal representatives of defendant Ramzan Khan within a period of two months; (ii) The 'Kachha construction' which has been raised illegally by the plaintiffs Gafoor Khan etc. shall be removed by them, at their own cost and the vacant possession of the plot shall be handed over to the defendants-respondents (LRs of Ramzan Khan); and (iii) Cost of litigation shall be shared by the parties. 2. 8. The petitioners-plaintiffs feeling aggrieved with the aforesaid judgment and decree dated 04.01.2016, preferred a regular appeal before the District Judge Jodhpur, which was registered as Appeal No.02/2016. 2. 9. During the pendency of the appeal, the petitioners filed an application dated 15.03.2016, under Order 6, Rule 17 read with Section 151 of the CPC, seeking amendment of the plaint filed in Civil Original Suit No.158/84, so also in the written statement filed by them in Civil Original Suit No. 631/1987. 2. 10. Petitioners being LRs of Safi Mohammad stated in the application that they are illiterate/less educated persons and were not much aware about the legal intricacies. It was stated in the application that when their relative Nisar Mohammad son of Nazir Khan came to know about the said judgment and decree dated 04.01.2016, he enquired into the matter and realized that the entire case was contested by the plaintiffs, on the basis of adverse possession, whereas they were having ownership right/ title over the said property. Said Nisar Mohammad then informed the plaintiffs that the plot in question was sold by his grand-father (Bashir Khan), who was brother of Safi Mohammad, father of the plaintiffs, by way of registered sale deed. Said Nisar Mohammad handed over a Photostat copy of the registered sale deed dated 06.09.1965 and original map of the subject property. 2. 11. As indicated in the amendment application, when the factum of registered sale deed came to the knowledge of the plaintiffs on 15.01.2016, they immediately applied for obtaining certified copies of the relevant sale deeds, which were received on 25.01.2016. 2. 12. On the basis of the facts unravelled, the amendment application in question was filed, whereby a new stand was sought to be taken and the petitioners-plaintiff were attempted to be projected as Title Holders of the land-in-question. By way of the application under consideration the following amendments/substitutions were sought for:- Original Para 3 (in Suit No. 158/84 ) ...[VERNACULAR TEXT OMITTED]... 2. 13. The application for amendment filed by the petitioners was hotly contested by the respondents and by way of a reply, it was contended that the amendment application was not bona fide; if allowed, it would change the nature of the suit; it does not fall in the scope of the provisions of Order 6, Rule 17 of the Code of Civil Procedure, 1908. 2. 14. Above referred application dated 15.03.2016, filed by the petitioners came to be rejected by the Court below, vide its detailed order dated 25.11.2016, where in all the arguments and judgments cited by both the parties have been considered.
(3.) Oppugning the above order dated 25.11.2016, petitioners' have invoked supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.;