Shumita Didi Sandhu vs Mr. Sanjay Singh Sandhu & Ors.
2012 Latest Caselaw 5210 Del

       *         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment reserved on: 29.08.2012
                                         Judgment pronounced on: 03.09.2012

+      IAs No.8442/2005 and 12914/2008 in CS(OS) 41/2005

       SHUMITA DIDI SANDHU                         ..... Plaintiff
                          Through: Mr. Salam Inamdar, Advocate

                           versus

       MR. SANJAY SINGH SANDHU & ORS.            ..... Defendants
                           Through: Mr. S.S. Jauhar, Adv. for D-1 to 3.
                                    Mr. Sanjeev Mahajan, Adv. for D-4 to 7.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. The plaintiff is the wife of defendant no.1 and daughter-in-law of defendants no.2 and 3. The property bearing number 18A, Ring Road, Lajpat Nagar-IV, New Delhi was leased out in the name of defendant no.3. The relations between the plaintiff and the defendant no.1 are far from cordial. It is alleged that initially the plaintiff and defendant no.1 were living on the ground floor of the aforesaid property along with defendants no.2 and 3 but, due to violence from defendant no.1, she moved out to Defence Colony, New Delhi in May, 1996. Defendant no.1 joined her at Defence Colony. Thereafter, defendants no.2 and 3 pressurized them to return to the suit property and eventually the plaintiff moved to the first floor of the aforesaid property. It is alleged in the plaint that the plaintiff had learnt that the defendants were trying to sell the aforesaid house so as to throw the plaintiff out of the matrimonial house. The plaintiff sought an injunction restraining the defendants

from committing acts of violence and intimidation against her and dispossessing her forcibly from her matrimonial home without due process of law.

2. Vide order dated 2.7.2007 passed in IA No.291/2005 and 8444/2005, this Court held that the plaintiff has no right to stay in the aforesaid property belonging to her parents-in-law. The Court, however, recorded the statement of defendant no.2 who stated that he or his wife (defendant no.3) had no intention to throw the plaintiff out of the aforesaid premises in question without due process of law. It was directed that the defendants shall remain bound by the said statement, but this would not prevent the defendants from taking recourse to law in dispossessing the plaintiff. The plaintiff preferred an appeal against the order dated 2.7.2007. The said appeal came to be dismissed by a Division Bench of this Court vide order dated 26.10.2010. A perusal of the order passed by the Division Bench would show that the learned counsel for the plaintiff contended, before the Division Bench, that the plaintiff had nowhere admitted that the defendants no.2 and 3 to be the sole and exclusive owners of the suit property. He also submitted that there was a dispute as to whether the defendants no.2 and 3 or defendant no.3 alone was the exclusive owner of the said property and that it was a joint family property also needed to be looked into. The following observations made by the Division Bench while dismissing the appeal filed by the plaintiff are pertinent in this regard:

"30. Two things are clear from the averments made in the plaint. The first is that it is nowhere alleged in the plaint by the appellant / plaintiff that the said property, which the appellant / plaintiff was referring to as her matrimonial home belonged to or was owned by her husband (defendant No.1). In fact, there is no averment in the plaint that the defendant No.1 had any right, title or interest or share in the said property. There is no averment that the property did not belong to the defendant No.3 exclusively. As pointed out above, it can be inferred that the appellant /

plaintiff was of the view that the property actually belonged to the defendant Nos. 2 and 3. The other point which emerges from the averments contained in the plaint is that the suit was filed to protect her rights in her "matrimonial home‟ as she feared that she would be summarily thrown out without due process of law inasmuch as she had learnt that the defendants were trying to sell the house. It is in this context that the prayer (b) of the plaint, which seeks the grant of a decree of a permanent injunction restraining the defendants from forcibly dispossessing the plaintiff out of her "matrimonial home" without due process of law, gains importance and significance.

31. Thus, looking at the totality of the circumstances and the pleadings as well as the order X, CPC statements, it cannot be said that the learned single Judge was off the mark when he observed that there is no dispute that the suit property belongs to the defendant Nos. 2 and 3. Therefore, the first point of attack that the conclusion of the learned single Judge was founded on a wrong premise, falls to the ground. We must emphasise once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband."

3. The plaintiff filed an application under Order 39 Rule 2A of CPC, alleging therein that by executing two sale deeds in respect of part of the suit property, the defendants had disobeyed the interim order of this Court dated 18.01.2005. Rejecting the application, this Court vide order dated 24.08.2012, inter alia, held as under:

3. IA No. 291/2005 was filed for an interim injunction claiming the

following reliefs:-

"(a) Pass an ad interim ex parte injunction restraining the defendant from committing the acts of adultery and the acts of violence and intimidation against the plaintiff;

(b) Pass an ad interim ex parte injunction directing the defendant not to through the plaintiff out of her matrimonial home and live there peacefully"

4. Vide order dated 18.01.2005, this Court noted the statement of the plaintiff that she was in possession of the first floor of the suit property and directed status quo with regard to the suit property to be maintained till the next date of hearing.

5. The contention of the learned counsel for the plaintiff is that the status quo order prevented the defendants from selling the suit property and that is why they committed breach of the said order by executing two separate sale deeds with respect to the suit property. In my view, the contention is wholly misconceived. The order of status quo passed by the Court has to be read in the context of the prayer made in the suit and the application for interim injunction. If read out of the context, an order directing status quo can be interpreted to mean anything and may result in different interpretations of the same order by various parties to the suit. A similar question came up for consideration before this Court in S. Anand Deep Singh v. Ranjit Kaur and Ors .ILR (1991) Delhi. In that case, in a suit for partition, rendition of accounts and declaration, the plaintiff had obtained an interim order directing status quo to be maintained in relation to the properties mentioned in the two Schedules, annexed to the plaint. The plaintiff filed a Civil Contempt Petition stating therein that one of the Defendants had carried out construction activity in one of the properties mentioned in one of the Schedules and had thereby violated the status quo order passed by the Court. The prayer made by the plaintiff in the application for grant of interim injunction was confined to restraining the Defendants from alienating or parting with possession of the disputed property. Dismissing the Contempt Petition, this Court, inter alia, held as under:

"There is no doubt that in IA 4224/89 status quo orders were passed regarding properties in Schedules I & II on 26th May, 1989. However, the exact import of the words "status quo' will have to be judged in the light of the prayer made in IA 4224/89. The prayer in this application is that the Defendants should be restrained from selling, alienating, encumbering or in any manner parting with the possession of the properties. There is no prayer in the entire application that the Respondents/Defendants 1 to 5 should be restrained from proceeding with the construction in GK property. None of the words used in IA4224/89 can be stretched to mean that the plaintiff ever desired by means of this application a restraint order against the Respondents/Defendants 1 to 5 from proceeding with the construction on the Gk property. Therefore, the argument of Mr. Lekhi that under status quo orders, the Respondents/Defendants 1 to 5 should

not have proceeded further with the construction of the GK property does not seem to be tenable."

A similar issue arose in Suit No. 1547/1999, Eastman Collaborator v. S.K. Mehta: 91(2001) DLT 401 where the parties were directed to maintain status quo in the light of the report of the Local Commissioner who had inspected the property to identify the occupation of the premises. Another Local Commissioner was appointed by the Court on an application filed by the Defendant. The Local Commissioner found that changes have been made in the suit premises and gave description of those changes in his report. Noticing that the dispute between the parties was with regard to the possession of the suit property and it was in this context that the Court had passed an order directing the Local Commissioner to visit the disputed premises and identify the occupant of those premises, it was held by this Court that the Court did not intend the suit property to remain as it was and, therefore, status quo was to be maintained only with respect to the possession. It was held that the Defendant was not correct in his contention that no changes could be made in the suit premises.

4. IAs No.8442/2005 and 12914/2008 have been filed by the plaintiff under Order 6 Rule 17 read with Order 1 Rule 10 of CPC. It stated in IA No. 8442/2005 that subsequent to filing of the suit, the plaintiff came to know that part of the property bearing number 18A, Ring Road, Lajpat Nagar-IV, New Delhi has been sold by the defendants during operation of the status quo order against them. The purchaser Smt. Neelam Bhutani is sought to be impleaded as a party to the suit. It is also alleged in the application that the Barsati Floor inclusive two rooms, toilet, terrace garden etc over and above the first floor is generally considered as part and parcel to the first floor as the basement, garden and backyard is considered as part and parcel to the ground floor and the same had always been in possession of the plaintiff from the time she moved to the suit property along with defendant no.1. It is stated that one out of the two garages on the ground floor in the annexe wing and one servant quarter above the garages is generally and normally used by the person occupying the first floor and above and in the present case also one garage and

servant quarter on the second floor above the garage was being used by the plaintiff since the time she occupied the first floor but the defendants have succeeded in taking possession of the servant quarter on the second floor above the garage. The plaintiff, therefore, has sought to add declaration to the title of the suit so as to convert it into a suit for declaration and permanent injunction. She also seeks to add the words "and two small rooms, toilet, bathroom, terrace garden, etc. on second floor/Barsati floor", in para 2 of the plaint. Yet another change sought to be made is in the last line of para 2 of the plaint. The change is also sought to be made in line 8 of para 5 of the plaint. It has been stated in para 5 of the original plaint that the plaintiff and defendant no.1 moved to the first floor of the house bearing number 18A, Lajpat Nagar-IV, Ring Road, New Delhi. The plaintiff wants to add that this was done when the sister of defendant no.1 and her husband moved out of the first floor and barsati floor/second floor of the suit property at the behest of defendants no.2 and 3. Some minor corrections are also sought to be made in para 7 of the plaint. The plaintiff also seeks to add para 12A, para 12B and para 12C. The proposed paragraphs read as under:

"12A. The plaintiff who is the daughter of a veteran labour leader Mr. Madan Lal Didi and Mrs. Sheila Didi who is a respected Barrister and social worker based at Chandigarh. The plaintiff who is a qualified director and producer having done a course of film production from Saint Xavier‟s College, Bombay and having education from West Michigan University and City University in New York, Mt. Molyoke College, MA is holding a Kenyan passport and having person of Indian Origin Card granted by the Govt. of India. If the plaintiff is uprooted

from her matrimonial home, she will not be having any other place to live in‟.

12B. That during the pendency of the present suit when the status quo order was operating regarding the whole property bearing Municipal No.18-A, Main Ring Road, Lajpat Nagar-IV, New Delhi. The defendant no.3 in collusion with other defendants has transferred part of the above said property in the name of defendant no.4 falsely claiming this to be her absolute property, knowing fully well that the said property is the joint ancestral property making false averments regarding possession and consideration. The defendant no.2 and 3 were not in possession of the first floor and Barsati Floor, one garage on the ground floor and one servant quarter on the Second Floor over and above the garages since the time she along with her husband had moved in and the same was in exclusive possession of the plaintiff from the last more than one year and she is still in possession of the said portion of the suit property.

12C. That the defendant no.4 has not taken physical possession of even the ground floor and the basement of the suit property herself till date i.e.18.10.2005 and strange persons are visiting the property number of times and a servant /care taker has been put by the defendant no.4. The plaintiff has strong appreciation that after the physical occupation of the ground

floor by the defendant no.4, plaintiff‟s ingress and egress shall be blocked as the above said suit property is a single residential unit and the plaintiff being a single lady will face untold difficulties and miseries of living with strangers. The plaintiff has further apprehensions that the way the renovation and additions are being made by the defendants, the ground floor and the basement of the suit property is going to be used for commercial purposes making it impossible for the plaintiff to live in the same premises with peace. It has further come to the knowledge of the plaintiff that defendant no.4 in collusion with other defendants is again planning to sell or create third party interest in the part of the suit property."

The prayer clause is also sought to be amended by claiming a declaration thereby declaring the sale deed dated 5.5.2005 executed by defendant no.5 in favour of defendant no.4 as null as void. The following reliefs have been sought by way of amendment:

"(b1) grant a decree of declaration thereby declaring that the sale deed dated 5.5.2005 executed by defendant no.3 in favour of defendant no.4 is null and void;

(b2) grant a decree of declaration thereby declaring that the property no.18-A, Ring Road, Lajpat Nagar-IV, New Delhi is the matrimonial home of the plaintiff;

(b3) grant decree of permanent injunction against the defendants injuncting them not to transfer, sell, lease, alienate or create third party interest in respect of the first floor of the

property bearing municipal no.18A, Ring Road, Lajpat Nagar- IV, New Delhi.

(b4) grant decree of permanent injunction against the defendants thereby injuncting them, there agents, friends, representatives and persons claiming through them from using any part of the property bearing Municipal No.18A, Ring Road, Lajpat Nagar-IV, New Delhi for commercial purposes and from making any addition or alteration in the said property. (b5) grant a decree of permanent injunction against the defendant no.4 restraining her from selling, leasing and creating any third party interest in the suit property."

5. It is alleged in IA No. 12914/2008 that on 5.5.2005, defendant no.5 had also

executed an agreement to sell in favour of Mr. Hemant Bhutani and Mr. Sunny

Bhutani sons of Smt. Neelam Bhutani and she had also executed a general power of

attorney in favour of husband of Smt. Neelam Bhutani. The plaintiff, vide this

application, is seeking to implead Shri Hemant Bhutani, Mr. Sunny Bhutani and

Mr. Ravinder Kumar Bhutani as parties to the suit. Additional paragraph is sought

to be added as para 12D which read as under:-

"That apart from the breaches mentioned hereinabove, the plaintiff has subsequently learnt that defendant no.3 in collusion with the other defendants no.5 and 6 with respect to the First Floor, 18A, Ring Road, Lajpat Nagar IV, New Delhi. Not stopping here, the defendant no.3, in collusion with the

other defendants has executed a general power of attorney with respect to the First Floor, 18A Ring Road in favour of defendant no.7. This General Power of Attorney empowers the defendant no.7 to do all things with respect to the First Floor, 18A Ring Road, Lajpat Nagar-IV, New Delhi including executing sale deed, alienating, raising constructions and in all manners dealing with the said property. it is apparent that the defendants sought to transfer the entire property being 18A Ring Road, Lajpat Nagar IV, New Delhi to the various members of the Bhutani family being defendants no.4,5,6 and 7 on the same day, in this piecemeal manner, in conscious pursuance of a particular object. This object was the defeating and frustrating of the plaintiff‟s present suit. The plaintiff is claiming the suit premises to be her matrimonial home, being the joint family home, and therefore her consequential right to reside therein. Since she is claiming her rights through defendant no.1,2 and 3, who are her husband and in-laws respectively, by alienating the suit property and transferring it to third parties, it would completely defeat and frustrate the present suit. It is essential that these documents be declared null and void in order to prevent injustice and in order to invalidate these acts which smack of gross disregard for the law as well as the orders of this Hon‟ble Court. These two documents, being the „Agreement to Sell‟ and „General Power of Attorney‟ have been executed in blatant disobedience and contravention of the unambiguous status quo order dated

18.1.2005. The defendants were fully aware of the operation of the status quo order as is evident from the fact that the presence of defendants counsel has been recorded in the order of 18.1.2005. Besides this the order was to be duly served on the defendants 1,2 and 3 through this Hon‟ble Court. Further, the plaintiff, apprehending such a move by the defendants had affixed the status quo order at several prominent places around the property. The fact of the status quo order being within the knowledge of the defendants 4,5,6 and 7 is evident from the plaint of defendant no.4 in her suit for possession and mesne profits, being CS(OS) 587/2008, filed against the plaintiff herein. The defendants no.5, 6 and 7 being the two sons and husband of defendant no.4, and who all reside together, it is an obvious conclusion that they too were fully aware of the status quo order operating with regard to the suit property. The conduct of defendants no.1 to 7 is highly deplorable an they have suppressed crucial documents detrimentally affecting the plaintiff‟s rights not only in the present suit but other actions as well, clearly establishing their lack of bonafides. The plaintiff reserves her right to take appropriate steps in accordance with law in regard to the abovementioned acts of defendants no.1 to

7."

The prayer clause is also sought to be granted by claiming following

additional reliefs:

"(b6) grant a decree of declaration thereby declaring that the „Agreement to Sell‟ dated 5.5.2005 executed between defendant

no.3 and defendant nos. 5 and 6 is null and void, non est and inoperative in law;

(b7) grant a decree of declaration thereby declaring that the General Power of Attorney executed by defendant no.3 in favour of defendant no.7 is null and void, non est, and inoperative in law.

(b8) grant a decree of declaration thereby declaring that the plaintiff has the right to reside in and use the first floor including the terrace barsati, one garage and one servant quarter in the Annexe, as this being the joint family house of defendant no.1 constitutes the matrimonial home of the plaintiff.

(b9) grant a decree of permanent injunction against the defendant nos. 5,6 and 7 restraining them from alienating, creating third party interest, or in any manner dealing with the suit property.

(b10) grant a decree of permanent injunction against the defendant nos. 5, 6 and 7 restraining them from acting in any manner on the strength of the „Agreement to Sell‟ and „General Power of Attorney‟ dated 5.5.2005 respectively."

6. Primarily, by way of proposed amendment, the plaintiff wants to plead that

(i) the suit property is a joint family property and (ii) transfer of the suit property

by defendants no.2 and 3 to Smt. Neelam Bhutani and execution of agreement to

sell in favour of her sons and a power of attorney in favour of her husband are

illegal, and (iii) She is in possession of not only of the first floor but also of the

entire second floor/barsati floor including the terrace garden.

7. In the original plaint, the plaintiff did not allege that the property bearing

number 18-A, Ring Road, Lajpat Nagar-IV, New Delhi was a joint family property.

She did not claim that her husband, defendant no.1, Mr. Sanjay Singh Sandhu was

one of the co-owners of the said property. As noted by the Division Bench, she did

not claim in the plaint that her husband had any legal right or interest in the said

property. This was also not the case of the plaintiff that the aforesaid property

belonged to someone other than defendants. The only inference which one can

draw from these averments made in the plaint is that the case of the plaintiff in the

original plaint has been that the aforesaid property belonged to defendants no.2 and

3. The plaint, therefore, contained an admission that the ownership of the suit

property vested in defendants no.2 and 3.

8. In the original plaint, the plaintiff specifically alleged in para 5 of the

original plaint that she along with defendant no.1 had moved to the first floor of the

property bearing number 18A, Ring Road, Lajpat Nagar-IV, New Delhi. This

averment made with respect to the extent of the portion alleged to be occupied by

the plaintiff in the suit property contained a clear admission that rest of the portions

of this property were not in possession of the plaintiff and/or defendant no.1.

9. By way of proposed amendment, the plaintiff seeks to plead that the suit

property was owned by joint family. The proposed amendment, if allowed would

have the effect of taking away the admission which the plaintiff impliedly made in

the plaint, to the effect that the suit property was owned by defendants no.2 and 3

alone.

10. It is settled preposition of law that an amendment which has the effect of

withdrawal of an admission should not be allowed particularly when there is no

explanation as to how the admission came to be made. The plaintiff has not offered

any explanation for not disputing the ownership of defendants no.2 and 3 in the

original plaint.

In M/s. Modi Spinning & Weaving Mills Co. Ltd. and another v M/s Ladha

Ram & Co. [AIR 1977 SC 680], the Apex Court disallowed the proposed

amendment on the ground that if the amendment is allowed, the plaintiff would be

irretrievably prejudiced by being denied the opportunity of extracting the

admission from the defendants. In that case, the question which came up before the

Supreme Court was as to whether defendant can be allowed to amend his written

statement by an inconsistent plea as compared to the admitted plea which contained

an admission in favour of the plaintiff. It was held that such an inconsistent plea,

which would displace the plaintiff completely from the admission made by

defendant in the written statement, cannot be allowed. In that case, the suit was

filed by the plaintiff for claiming a decree of Rs. 1,30,000/- against the defendants.

The defendants in their written statement admitted that by virtue of an agreement

dated 7th April, 1967 the plaintiff worked as their stockiest-cum- distributor. After

three years the defendants by application under Order VI Rule 17 sought

amendment of written statement by substituting paragraphs 25 and 26 with a new

paragraph in which they took the fresh plea that plaintiff was mercantile agent-

cum-purchaser, meaning thereby they sought to go behind their earlier admission

that plaintiff was stockiest-cum-distributor. Such amendment was rejected by the

trial court and the said rejection was affirmed by the High Court in revision. The

decision of the High Court was upheld by three Judges Bench of the Apex Court.

This judgment came to be followed in Heeralal v Kalyan Maland & Ors

[AIR 1998 SC 618] the plaintiff filed a suit in respect of ten immovable properties

mentioned in Schedule A of the plaint, and also for partition of other properties

listed in Schedule-B of the plaint. In the written statement defendants alleged that

out of the listed properties in Schedule-A, three properties exclusively belonged to

them and were not joint family properties. This was taken as an admission to the

effect that the remaining properties were joint and family properties. The

defendants later on sought amendment of the written statement stating therein that

the so-called admission regarding five out of the seven properties listed in Schedule

A was on account of incomplete information submitted to him and that he suffered

an heart-attack and therefore the error crept in when the written statement was

filed. The amendment was refused by the Supreme Court holding that as far as

Schedule-A properties were concerned, a clear admission was made in the written

statement that seven properties out of the ten properties were joint family

properties wherein the plaintiff had 1/3rd share and others had 2/3rd undivided

share. It was observed that once such a stand was taken, it must be held that there

was no contest between the parties regarding seven items of the suit properties

mentioned in Schedule-A.

In the case before this Court, since the plaint contained an implied admission

that the property bearing number 18A, Ring Road, Lajpat Nagar-IV, New Delhi

was owned by defendants no.2 and 3, there was no dispute between the parties as

regards title of the said property. Now, by way of proposed amendment, the

plaintiff wants to dispute the title of defendants no.2 and 3, which would have the

effect of withdrawal of an admission already made by her in this regard. Same is

the position with respect to possession of portions other than the first floor.

11. The learned counsel for the plaintiff has placed reliance upon the decision of

the Supreme Court in Sampath Kumar v Ayyak Annu and another [(2002) 7 SCC

559]. In the case before the Supreme Court, the plaintiff /appellant filed a suit in

the year 1998 for issuance of permanent prohibitory injunction claiming his

possession over the suit property, an agricultural land. Before commencement of

the trial, in 1999 the plaintiff moved an application under Order 6 Rule 17 CPC for

amendment in the plaint alleging therein that during pendency of the suit, the

defendant in 1989 had forcibly dispossessed the plaintiff. On such averment, the

plaintiff sought for relief of declaration of title to the suit property and

consequential relief of delivery of possession. The amendment was refused by the

trial court and the order passed by it was maintained by the High Court. Allowing

the appeal filed by the plaintiff, the Supreme Court, inter alia, held as under:

"7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was one to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

11. In the present case the amendment is being sought for almost 11 Years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as

having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment."

The facts of the case before this Court, however, are altogether different. No

admission made in the plaint was sought to be withdrawn in the case of Sampath

Kumar (supra), whereas in the case before this Court, the effect of proposed

amendment, if allowed in toto, would be withdrawal of the admissions contained in

the original plaint.

12. As noted earlier, the proposed amendment, to the extent plaintiff wants to

plead that the first floor including second floor/ barsati floor including terrace

garden, if allowed, would have the effect of taking away an admission contained in

the original plaint to the effect that the portion other than the first floor of the

property bearing number 18A, Ring Road, Lajpat Nagar-IV, New Delhi was not in

possession of the plaintiff. The averment that the barsati floor/second floor is

considered to be a part of the first floor, is wholly unacceptable and preposterous.

As stated earlier, the plaintiff cannot be allowed to dispute the ownership of

the defendants no.2 and 3 with respect to the suit property. Amendment of the

plaint so as to challenge the sale deed, agreement to sell and power of attorney

executed by defendant no.3 also therefore cannot be allowed. The proposed

impleadment of defendants also needs to be refused for this very reason.

13. For the reasons given hereinabove, both the applications seeking amendment

of the plaint are hereby dismissed.

CS(OS) 41/2005

14. List on 18.02.2013.

V.K.JAIN, J

SEPTEMBER 03, 2012 rd