This petition is preferred with a request to quash and set-aside the order of the learned Judge, City Civil Court, Ahmedabad dated 30th March 2011 in Civil Suit No. 534 of 2011 and to grant amendment application Exh.29, which was partly allowed. It is the say of the petitioner that he was residing in the suit property till 1986 and was enjoying the joint possession. However, though he had shifted to another part of the city, his right, title and interest over the suit property remains as a legal heir of Hanifabibi-org. owner of the suit property.
As can be noted from the record, learned Judge has noted that the plaintiff is claiming declaration in the share of the property, and therefore, entire relief was declined on the ground that the same ought to have been claimed as a relief at the time of filing of the suit. As per Order II Rule 2 CPC, the plaintiff could have reserved his right to claim such a relief with the permission of the Court. However, since no permission was granted, the Court permitted the amendment partially. So far as the amendment sought in terms of paragraph 5 (a), (b) & (d), he was declined such a permission of being declared in joint possession, as a co-owner of the suit property.
At this stage, learned advocate Mr. Qureshi seeks withdrawal of this petition, relying upon the decision of the Apex Court in case of Ramdas v. Sitabai & Ors, reported in 2010 (1) GLR 235 wherein it is held and observed that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court. By the said verdict, directions were issued to the vendee to hand over possession of land to the co-owner to the extent of her share only in the property sold by the other co-owner..
In view of the request made, this petition stands disposed of as withdrawn. All the contentions raised in this petition as well as those pleaded in the suit pending before the learned City Civil Court, Ahmedabad are kept open.
{Ms.
Sonia Gokani, J.} Prakash* Top