Writ-C No. 26029 of 2014. Case: Amar Singh Vs Yogender Singh. High Court of Allahabad (India)

Case NumberWrit-C No. 26029 of 2014
CounselFor Appellant: Amitabh Agarwal, Adv. and For Respondents: Mahesh Narain Singh, Adv.
JudgesRam Surat Ram (Maurya), J.
IssueCivil Procedure Code - Order VI Rule 17
Judgement DateMay 14, 2014
CourtHigh Court of Allahabad (India)


Ram Surat Ram (Maurya), J.

1. Heard Sri Amitabh Agarwal for the petitioners. This writ petition has been filed against the orders of Sub-Divisional Officer dated 1.7.2013, rejecting the amendment application dated 1.6.2013, filed by the petitioners for amendment of written statement in Suit No. 77 of 2011, under section 176 of U.P. Act No. 1 of 1951 (hereinafter referred to as the Act) and Additional Commissioner dated 28.3.2014 dismissing the revision of the petitioners.

2. Yogendra Singh (respondent-1) filed a suit (registered as Suit No. 77 of 2011), under section 176 of the Act, for partition of his share in plot No. 589 (area 0.1600 hectare) of village Bhatona, pargana Agauta, district Bulandshahar. The petitioners filed their written statement on 7.2.2013. Thereafter issues were framed and evidence of the plaintiff was completed on 9.5.2C13. Then 18.5.2013 was fixed for the evidence of the defendants. The petitioners filed an application dated 1.6.2013, for amendment of written statement by adding paragraph-5-A to the effect that the land in dispute was not used for agricultural purposes and on the spot buildings are existing as such it is not 'land' within the meaning of section 3 (14) of U.P. Act No. 1 of 1951 and the suit is not cognizable by Revenue Court and is barred under section 331-A of U.P. Act No. 1 of 1951.

3. The amendment application was heard by Sub-Divisional Officer, who by order dated 1.7.2013, held that as the land in dispute was recorded as bhumidhari and no declaration under section 143 of the Act, was made as such it cannot be treated as abadi. Trial of the suit has already been commenced as such amendment application cannot be entertained in view of Proviso to Order VI Rule 17 CPC as the nature of the land in dispute was well within the knowledge of the defendants on the date of filing written statement. The petitioners filed a revision (registered as Revision No. 139 of 2011-12) against the aforesaid order, which has been dismissed by Additional Collector by the order dated 28.3.2014. Hence, this writ petition has been filed.

4. The Counsel for the petitioners submits that the land in dispute is covered with building and is not used for agricultural purposes, as it is proved from khasra entries as such it is no more 'land' as defined under section 3(14) of the Act. The nature of the land in dispute has already been converted as abadi on the spot, it cannot be treated as 'land' as no part of it is used...

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