Jammu & Kashmir High Court – Srinagar Bench
Ghulam Hassan Lone vs Mohammad Ashraf Mir on 1 August, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 1230/2018
Reserved on:25.07.2025.
Pronounced on:01.08.2025
1. Ghulam Hassan Lone.
2. Ali Mohammad Lone.
3. Haji Ghulam Ahmad Lone.
4. Sons of Abdul Khaliq Lone
5. All residents of Lelipora, Anantnag, Kashmir.
Petitioner(s)
Through: Mr. Mian Tufail, Advocate.
Vs
1. Mohammad Ashraf Mir.
S/O Ghulam Ahmad Mir.
R/O Bumthan Tehsil & District, Anantnag.
Contesting Respondent(s)
2. Mst Raja
3. Mst. Saja
4. Mst. Rafiqa
Ds/O Abdul Aziz Mir
Rs/O Bumthan Tehsil and District, Anantnag.
5. Mohammad Yousuf Mir.
6. Abdul Rashid Mir
7. Mohammad Aslam Mir
Ss/O Ghulam Hassan Mir
Rs/O Bumthan Tehsil and District, Anantnag.
8. Mst. Hafiza
D/O Ghulam Hassan Mir.
Wd/O Mohammad Hussain Mir.
R/O Bumthan Tehsil and District, Anantnag.
A/P Furrah.
9. Mst. Raja
Wd/O Ghulam Hassan Mir
R/O Bumthan Tehsil and District, Anantnag.
10. Zahida Bano
D/O Ghulam Hassan Mir.
R/O Bumthan Tehsil and District, Anantnag.
A/P Rohu Anantnag.
11. Mohammad Rajab Mir.
S/O Abdullah Mir.
OWP No. 1230/2018 1
12. Ghulam Mohammad
13. Sonaullah Mir.
14. Ghulam Nabi Mir.
Ss/O Abdul Samad Mir.
Residents of Bumthan Tehsil & District, Anantnag.
Proforma-Respondent(s)
Through: Mr. Rizwan Ul Zaman Bhat, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. Impugned in the instant petition is an order dated 26th May,
2018, passed by the court of learned Sub-Judge (Special
Mobile Magistrate), Anantnag (for short “the trial Court”)
whereby, the learned trial court has allowed the application
for amendment of the plaint filed by the respondent No. 1
herein and the plaintiff-applicant in the original suit titled
“Mohammad Ashraf Mir v. Ghulam Hassan Mir & Ors”.
2. Before proceedings further, it would be in the fitness of
things to have a brief resume of the factual background that
has given rise to the instant petition.
3. A suit came to be instituted by respondent No. 1 against the
petitioners and the proforma respondents before the learned
trial court, for declaring him the owner in actual possession
of land measuring 03 Kanalas 19 Marlas, comprising Khewat
No. 32, Khata No. 198, Khasra No. 437, situated in village
Bumthan Tehsil Kulgam, District, Anantnag, andfor declaring
the three sale deeds executed on 25.02.2006 by Ghulam
Hassan Mir (original defendant No.1, now deceased) in
favour of petitioners with respect to three different plots of
OWP No. 1230/2018 2
land comprising Khewat No. 32, Khata No. 198, Khasra No.
437 of village Bumthan Kulgam, as null and void. Further
prayer was also made in the suit that the contesting
defendants/petitioners herein be restrained from causing any
sort of interference in his peaceful possession viz-viz the land
measuring 03 Kanals, 19 Marlas, comprising Khewat No.32,
Khata No. 198, Khasra No. 437 of village Bumthan Kulgam.
4. The cause of action projected by the respondent No. 1 in the
suit was that Ghulam Hassan Mir was given in adoption by
his natural father to one Kabir Bhat at the age of infancy and
he got the property of his adoptive father through mutation.
The said Ghulam Hassan Mir had never inherited any
property from his natural father. It was also pleaded in the
plaint that the father of respondent No. 1was adopted by his
brother Ali and, as such, it is only respondent No. 1 who has a
right to inherit the property of deceased Ali (son of Khaliq).
5. The petitioners as well as Ghulam Hassan Mir (deceased)
filed their written statement to the suit, stating therein that the
parties to the lis had partitioned the landed estate long before
1947, and the suit property was inherited by his three sons,
Hassan, Ama and Ali in equal shares after the demise of
Khaliq Mir. It was also averred in the written statement that
Hassan and Ama had partitioned their shares more than 30
years ago and the suit property fell into the share of Hassan
Mir who is exclusive owner in possession thereof.
6. On the basis of the pleadings of the parties, issues were
OWP No. 1230/2018 3
framed in the matter and after completion of the evidence by
the plaintiff/respondent No.1, defendants/petitioners and
proforma respondents were directed to lead their evidence.
During the pendency of the suit, Ghulam Hassan Mir, Mst.
Zaiba and Abdul Aziz Mir died, and their legal representatives
were brought on record.
7. Thereafter, respondent No. 1 filed an application seeking
permission to amend the suit. It was stated in the application
that father of respondent No. 1 was adopted by his brother-Ali
Mir, who had orally gifted his whole property in favour of his
father. It was also stated that Khaliq Mir had also gifted the
share of father of newly impleaded defendants to the father of
plaintiff and had settled the matter at the time of adoption of
Ghulam Hassan Mir.
8. The amendment application was objected to by the
petitioners, stating that the proceedings of the suit are at its
final stage and the suit is pending for cross-examination of
some of the witnesses of proforma-respondents. Respondent
No. 1 was claiming ownership rights qua the suit land on
account of right of inheritance under the law of Customs,
however, he failed to prove his case, and now, was trying to
change his stand after completion of his evidence by laying a
claim of ownership on the basis of oral an gift. Besides, it
was also stated that in the original suit no averment in respect
of oral gift was ever made by the respondent No. 1 and
amended plaint annexed with the application shall require a
OWP No. 1230/2018 4
fresh and full-fledged trial, which will cause injustice and
irreparable loss to the petitioners as the suit has been pending
before the learned trial court for the last more than ten years.
9. The learned trial court vide order impugned allowed the
application for amendment of the suit subject to payment of
costs to the tune of Rs.10,000/-
10. The petitioners have invoked the supervisory jurisdiction of
this Court under Article 227 of the Constitution of India for
assailing the impugned order on the ground that the learned
trial court has accepted legal principle that an amendment
which changes the nature of the suit cannot be allowed but
without adverting as to whether the proposed amendment,
(now sought to be introduced in terms of the amendment of
the plaint), was going to change the nature of controversy,
has passed the order impugned. It was not the case of the
respondent No. 1-Ghulam Hassan Mir that that the father of
newly added defendants had not inherited any of the property
of his father because the father of deceased Ghulam Hassan
Mir and Ali Mir had gifted their share in favour of the father
of the respondent No.1, whereas, in the application seeking
amendment of the plaint the case set up by the respondent
No. 1 is that his father was adopted by his brother Ali Mir,
who had orally gifted his whole property in favour of the
respondent No.1 and Khaliq Mir had also gifted the share of
the father of newly impleaded defendants to the father of the
respondent No.1 and had settled the matter at the time of
OWP No. 1230/2018 5
adoption of Ghulam Hassan Mir.
11. The respondent No. 1 has filed the response to the petition,
objecting to the maintainability of the petition by contending
that allowing the application for amendment of suit will not
change the nature of the suit.
12. Mr. Mian Tufail, learned counsel for the petitioners, has
argued that the learned trial court has not rightly passed the
order impugned, as by allowing the amendment application,
has allowed the respondent No. 1 to change the nature of the
suit.
13. Per-contra, Mr. Rizwan- Ul Zaman, learned counsel for the
respondent No. 1 has argued that there is no change in the
relief sought by respondent No. 1 in the suit and, as such, the
amendment in the plaint allowed by the learned trial court
would not change the nature of the suit.
14. Heard learned counsel for the parties and perused the record.
15. The relevant part of the order impugned is extracted as
under:-
“I have appreciated the rival contents raised but I do not
need to dilate on these questions further as the question
before me is somewhat different. Here the question is as
to what extent party has a right to amend the suit.
Order 6 Rule 17 of CPC consists of two parts, first part
deals with power of the court to order amendment of the
pleadings and the second part enjoins upon the court to
allow the amendment only when it appears to the court
that it is necessary for the purposes of determining the
real questions in controversy between the parties.
So in the backdrop of what has been stated aboveOWP No. 1230/2018 6
needless to say as and when amendments the court may
give opportunity to the non-applicants to file additional
written statement and then proceed with the trial in
accordance with the law. Accordingly, the application
is allowed subject to costs of Rs. 10,000/- with
opportunity to the non-applicants to file additional
written statement. Application disposed of shall form,
part of the main file and thereafter shall come up on
23.06.2018.”
16. As per the mandate of Order 6 Rule 17 CPC, the Courts have
been vested with the power to allow the
alteration/amendment of the pleadings provided the
amendment sought to be made in the pleadings is imperative
for determining the real controversy between the parties. The
learned trial court though has rightly taken note of the
position of law that while considering the issue of
amendment of plaint, it is also required to be examined as to
whether the proposed amendment fundamentally changes the
nature and character of the case or not, but has miserably
failed to return a specific finding as to whether the
amendment sought to be incorporated in the plaint by the
respondent No. 1 would alter/change the fundamental nature
of the suit or not and, has proceeded to allow the application
for amendment of the plaint without assigning any reason.
17. In “Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC on-line
SC 256″, the Hon’ble Supreme Court of India, after taking
note of catena of its earlier judgments, has held as under:
37. Thus, the Plaintiffs and Defendant are entitled to
amend the plaint, written statement or file an additional
written statement. It is, however, subject to an exceptionOWP No. 1230/2018 7
that by the proposed amendment, an opposite party
should not be subject to injustice and that any admission
made in favour of the other party is not but wrong. All
amendments of the pleadings should be allowed
liberally which are necessary for determination of the
real controversies in the suit provided that the
proposed amendment does not alter or substitute a
new cause of action on the basis of which the
original lis was raised or defence taken.
38. Inconsistent and contradictory allegations in
negation to the admitted position of facts or mutually
destructive allegations of facts should not be allowed
to be incorporated by means of amendment to the
pleadings.
(emphasis added)
18. As per the mandate of the judgment (supra), it is evident that
the plaintiff under the garb of amendment cannot set up
altogether a new case particularly when he has already led the
evidence and the defendant too almost has completed the
evidence. Besides, the inconsistent or mutually destructive
pleas can’t be permitted to be incorporated in the plaint
through the medium of amendment of the suit.
19. Sofar as the present case is concerned, a case originally
projected by the respondent No.1 in his plaint was that his
father was adopted by his brother-Ali and it is respondent
No.1 who has a right to inherit the whole property of
deceased-Ali and that Ghulam Hassan Mir was adopted by
Kabir Bhat, and as such was not entitled to inherit any
property of his natural father, i.e, Khaliq. whereas, in the
application seeking amendment of the pleadings, an
altogether new case has been set up by the respondent No.1
by asserting that his father was adopted by his brother Ali Mir
who had orally gifted his whole property to his father and
further Khaliq Mir had also gifted away the share of father of
OWP No. 1230/2018 8
newly impleaded defendants to his father i.e. father of
respondent No.1 and had settled the matter at the time of
adoption of Ghulam Hassan Mir. There was no pleading
either in respect of gift in favour of father of respondent No.
1 by his brother Ali or that Khaliq Mir had gifted the share of
father of newly impleaded defendants to the father of
respondent No.1, rather it was the positive case of the
respondent No.1 that Ghulam Hassan Mir cannot inherit
properties of his biological father in view of his adoption and
as his father was adopted by his brother Ali, so he was
entitled to inherit the property. In the plaint there is no
whisper made by respondent No. 1 that Khaliq had gifted the
share of the father of the newly impleaded defendants in
favour of his father and had settled the matter at the time of
adoption (Ghulam Hassan Mir-now deceased). In fact, even
in his statement there is no whisper that Khaliq Mir had
gifted the share of the father of newly impleaded defendants,
i.e., Ghulam Hassan Mir in favour of father of the plaintiff.
20. Through the medium of the application seeking amendment
of the plaint, respondent No. 1 is not only taking the
contradictory stand to the one pleaded in the plaint but has
also changed the cause of action to seek relief(s) that was
never projected in the plaint. Respondent No.1 was earlier
claiming the ownership on the basis of right of inheritance
and negating the right of the Ghulam Hassan Mir on account
of his adoption but in the proposed amended plaint, he is
OWP No. 1230/2018 9
claiming ownership on account of oral gift made to his father
by Ali Mir and Khaliq. This court has no hesitation in holding
that respondent No.1 through the medium of application for
amendment of the suit has attempted to take inconsistent
stand viz-a-viz, the one agitated in the plaint which is not
permissible.
21. This Court is of the considered view that the learned trial
court has committed a jurisdictional error while allowing the
amendment of plaint without assigning any reason,
particularly when the respondent No.1 intended to change the
cause of action altogether to seek the relief prayed for in the
suit, and more particularly, when the parties had also led their
evidence and the suit was pending just for cross-examination
of some of the witnesses of proforma respondents. This Court
also cannot ignore the fact that the application for the
amendment was moved in the year 2017, i.e. after 11 long
years of institution of the suit, when the trial was almost at its
final stage. Though the Courts should ordinarily be loath in
interfering with the order in respect of the amendment of the
plaint, however, this is a case where the trial court has
travelled beyond the guardrails laid down by the Apex Court
for the purpose of considering the issue of amendment of the
pleadings. Respondent No.1 is guilty of changing the
constitutional nature and character of the suit and also of
taking inconsistent pleas in the application, just to prolong the
trial which is at its final stage.
OWP No. 1230/2018 10
22. This is a fit case, where this Court deems it proper to exercise
its supervisory jurisdiction under Article 227 of the
Constitution of India. Accordingly, the petition is allowed
and order dated 26th May, 2018, is set aside with a direction
to the learned trial court to take the proceedings to its logical
conclusion at an earliest, preferably within a period of six
months from the date of this order. The application for
amendment, as a corollary, is dismissed.
23. Registry to send a copy of this order to the trial court for
compliance.
24. Disposed of along with the connected CM(s).
(RAJNESH OSWAL)
JUDGE
SRINAGAR:
01.08.2025
“Ab. Rashid”
Whether the judgment is reportable: Yes
Abdul Rashid Ganaie
I attest to the accuracy andOWP No. 1230/2018 11
authenticity of this document
:04.08.2025 17:32