Kaka Ram vs Hans Raj And Another
2023 Latest Caselaw 69 j&K

                                                                     Sr. No. 09


                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU

                                                     OW104 No. 60/2012

 Kaka Ram                                                ....Petitioner/Appellant(s)

                    Through :- Mr. R. K. S. Thakur, Advocate.

          V/s

 Hans Raj and another                                             ....Respondent(s)


                     Through:- None.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                                     ORDER

01.02.2023

1. Heard learned counsel for the petitioner.

2. This petition has been filed for seeking exercise of supervisory

jurisdiction of this Court to examine the legality of order dated 16.10.2012

passed by the Court of Additional District Judge, Udhampur whereby an

application filed by the petitioner herein, as being the plaintiff in the civil suit

on file no. 40/Civil, for seeking amendment of the plaint came to be rejected.

3. The backdrop in which the application for amendment of the plaint

came to be filed by the petitioner is that the petitioner has instituted a civil suit

for exercising right of prior purchase in terms of the provisions of J&K Right

of Prior Purchase Act, Svt. 1993 (1936 A.D) with respect to a sale deed dated

06.10.2004 executed by the real brother of the petitioner herein, who figures

as defendant no. 1 in the suit in favour of the respondent no. 2 herein, who

figures as defendant no. 2 in the civil suit.

4. In terms of the said sale deed land measuring 1 kanal 12 marlas

comprising khasra no. 226, khewat no. 45 and khata no. 172 situated in

village Rathian, distrct and tehsil, Udhampur came to be alienated by the

respondent no. 1 in favour of the respondent no. 2 herein. The defendant no. 2

in the civil suit, who is the respondent no. 2 herein, came forward to contest

the claim of the petitioner in the civil suit. In his written statement, the

respondent no. 2 came to disclose the fact that besides the property purchased

by the sale deed dated 06.10.2004, the respondent no. 2 had also become

owner of land by virtue of a gift deed dated 11.12.2004 executed by the donor

one Sadhu Ram viz the land measuring 5 marlas falling under khasra no. 212

(old).

5. This written statement in the suit was filed by the respondent no. 2

in the year 2005. Issues came to be framed in the civil suit and the matter got

posted for hearing on preliminary issues in the year 2012. The petitioner as

being plaintiff comes across with an idea to seek amendment of the civil suit

so as to enable himself to question the gift deed dated 11.12.2004 made by

Sadhu Ram in favour of the respondent no. 2 and for this the petitioner

proposed contemplated and transformation of the original civil suit for prior

purchase to a suit for declaration along with prayer for prior purchase and for

this even sought impleadment of the donor of the gift deed, namely, Sadhu

Ram as defendant no. 3 in the civil suit. This application has been rejected by

the trial court of Additional District Judge, Udhampur by well reasoned

detailed order supported by the judgments of the Hon'ble Supreme Court

attending the law governing the amendment of the civil suit.

6. In the estimate of the trial court of the learned Additional District

Judge, Udhampur, the amendment being sought by the petitioner was going to

set up a new case by bringing a new cause of action and for that the

amendment was beyond the scope of the very original civil suit filed by the

petitioner. This Court is also not able to convince itself as to how come the

development of the defendant no. 2 in the civil suit having a gift deed qua 5

marlas of the land in a different khasra number from a different owner can

have such a bearing on the civil suit for prior purchase filed by the petitioner

against his brother as being a vendor in favour of the respondent no. 2 as

being the vendee for land in different khasra number. There was no parity of

relationship of the petitioner, the defendants in the suit and Sadhu Ram and

thus, the alleged aspect of gift deed was having no bearing on the case set up

in the suit by the petitioner. As such, this petition is found to be devoid of

merit and no interference is warranted in the order passed by the Additional

District Judge, Udhampur.

7. For the reasons mentioned above, the petition is, dismissed,

accordingly.

(RAHUL BHARTI) JUDGE

JAMMU 01.02.2023 Shivalee

Whether the order is speaking :Yes / No

Whether the order is reportable: Yes / No