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Om Parkash s/o Johri Lal v. Om Parkash s/o Ram Kumar & Ors. - CR-3924-2003 [2006] RD-P&H 558 (3 February 2006)

C.R. No. 3924 of 2003 (1)


C.R. No. 3924 of 2003

Date of Decision: 17.2.2006

Om Parkash s/o Johri Lal ....Petitioner.


Om Parkash s/o Ram Kumar and others. ...Respondents.

Coram: Hon'ble Mr. Justice Hemant Gupta.

Present: Shri Sachin Mittal, Advocate, for the petitioner.

Shri R.K. Gupta, Advocate, for the respondents.


The plaintiff is in revision petition aggrieved against the order passed by the learned trial Court, declining the amendment in the plaint to claim possession.

The plaintiff has filed a suit for declaration to the effect that the plaintiff and defendant nos. 3 to 12 are owner in possession of the property in dispute and that the sale deed dated 16.6.1990 executed by defendant no.2, sister of the plaintiff in favour of defendant no.1, is illegal and without jurisdiction.

The suit was filed in the year 1993, but the plaintiff has sought decree for possession by seeking amendment in the plaint by moving an application on 16.3.2002. The learned trial Court declined such application on the ground that the plaintiff has admitted that the respondents are in possession since 1990 and, therefore, there is no change in the circumstances after the filing of suit which may entitle the plaintiffs to seek amendment.

C.R. No. 3924 of 2003 (2)

After hearing learned counsel for the parties, I am of the opinion that the order passed by the learned trial Court suffers from patent illegality and irregularity, which cannot be sustained. The challenge in the suit is to the sale effected by the sister of the plaintiff as sole legal heir of Johri Lal. Though the plaintiff has alleged himself to be in possession of the suit property and filed a suit for declaration in the year 1993, but that fact alone will not debar the plaintiff to seek possession of the suit property.

The plaintiff is claiming possession on the basis of title and, therefore, there is no limitation prescribed for claiming the possession based on title.

Therefore, the finding recorded by the learned trial Court that the suit has become time barred, is clearly not sustainable in law. The question whether the plaintiff was in possession prior to the filing of the suit is not relevant to determine the question of right of the plaintiff to claim possession, which is within the period of limitation.

Consequently, I find that the order passed by the learned trial Court on 19.7.2002, is not sustainable in law. Hence, the same is set aside.

The plaintiff-petitioner is permitted to amend the plaint as prayed for.

Parties through their counsel are directed to appear before the learned trial Court on 20.3.2006 for further proceedings in accordance with law.

17.2.2006 (Hemant Gupta)

ds Judge


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