ORDER
Gurusharan Sharma, J.
1. During pendency of Title Suit No. 24 of 1990, original plaintiff, Jawaharlal Gupta died. By order dated 4.2.2000, his name was expunged and his widow, two sons and two daughters were substituted in his place. Defendants 1 to 3 have filed the instant revision application, against order dated 2.2.2001, whereby proposed amendment in the plaint of the said suit was allowed. Inadvertently, two daughters of deceased original plaintiff, who were already substituted in the suit, were not made parties in this revision application. Hence, by order dated 17.4.2000, those two co-plaintiffs were permitted to be added as opposite parties herein. They have also appeared thereafter.
2. Heard the parties.
3. The present suit was filed for declaration that final decree passed in Title Suit No. 9 of 1960 for partition was not properly
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and legally executed and the parties continued in physical possession of the suit property as before the said suit and as such defendants No. 1 to 3 had no legal right to construct a new house over eastern portion of the suit property and they were not entitled to block the passage.
Now after the death of original plaintiff, his heirs after being substituted in his place, sought for amendment in the plaint to the effect that the partition decree in question was passed by practising fraud upon the Court in a collusive manner. It was alleged that they came to know the aforesaid facts only after certified copies of the concerned records and other sheets of Title Suit No. 9 of 1960 were obtained on 25.9.2000. Therefore, Prayer was made to amend relief No. (a) which was confined to declaration that the decree in question was not properly and legally executed and that the final decree as well as the entire proceedings of Execution Case No. 41/65, including the report of delivery of possession was null and void and stood vitiated due to fraud practised upon the Court. Further relief was sought for by way of amendment of decree for partition of their l/12th share and to add 25 decimals of land bearing plot Nos. 286, 288 and 302 in the schedule. By the impugned order dated 2.2.2001, the proposed amendments were allowed with costs. Plaintiffs were directed to pay ad valorem Court fee on the suit properties and defendants were allowed to file additional written statement in respect of the amendments made in the plaint. In my view, the trial Court failed to consider that the original suit was only for declaration that the decree in question was not legally executed, and consequently the parties continues in possession as before on the suit properties, and now by the proposed amendment, not only the illegality in the execution of the decree has been alleged, but the decree itself is said to be null and void for having been obtained by practising fraud, which is altogether a new case and completely changes the complexion of the suit. Such amendment could not have been allowed, and therefore, this part of the proposed amendment is reflected and impugned order is set aside to this extent only. So far as allowing addition of a new relief for partition and three plots in the schedule of suit properties in the plaint, by way of amendment is concerned, I find no
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reason to interfere with this part of the impugned order. In the result, this Revision application is allowed in part.
4. Revision partly allowed.