Sunil Hali, J.
1. A suit for partition by metes and bounds and separate possession of House No. 444-A Gandhi Nagar, Jammu was filed by the plaintiff-respondent against the petitioner. The frame of the suit indicates that Plot No. 444-A Gandhi Nagar, Jammu was allotted to father of parties. The said house was built in the year 1965 and thereafter additions and alterations were made by the father of the parties from time to time as averred in the plaint. After his death he left behind petitioner-plaintiff and defendants No. 1 to 4 as legal heirs. plaintiff-respondents claims that the property be partitioned by meters and bounds. In their written statement, defendants admitted that Plot No. 444-A Gandhi Nagar, Jammu was allotted to father of the plaintiff and defendants. It has also been admitted by them that the house comprising of five rooms, two kitchen, one verandah, one bath room, one latrine and staircase was constructed by the father of the parties in the year, 1965. The defendant-respondent has in para-3 of written statement admitted that the partition of the property has taken place and in alternative he has stated in case such a partition was not effected, then petitioner's right had matured by adverse position. In para-5 of written statement the defendant has again admitted that defendant-petitioner by way of oral family settlement five marlas of land duly allotted to father of the parties was given to the respondent-defendant. Again in para-8 of written statement it is admitted by defendants that oral settlement took place in the year 1990 in respect of the same property.
2. That during the course of trial application for amendment was made which was allowed and amended written statement was filed. In the preliminary objections the defendant has raised a plea that the land on which father of the parties raised construction was allotted to him by the State Government. It has further been averred that since the property belongs to State Government and no ownership right was conferred upon father of the parties, the plaintiff is disentitled to maintain the suit for partition. The petitioner filed an application which was granted seeking permission to file replica to the written statement. While replying preliminary para in the written statement the plaintiff-petitioner has stated that the plot allotted to the father of the parties was made for perpetuity and ownership rights had been conferred after the whole amount which was the cost of the plot was realized by the State Government. Defendant has filed an application under Order 6 Rule 16 CPC for rejection of application and for striking out the pleadings by the plaintiff in the replica on the ground that no permission was sought by the plaintiff for filing replica and the replica filed by the plaintiff otherwise cannot be construed or treated as pleadings because plaintiff has abused the order of the court dated 6.2.2005 in introducing such a plea of facts which in law cannot be introduced and pleaded except with the permission of the court. This application was considered by the trial court. Objections to said application have been filed by the respondents whereby it has been stated that permission was granted by the court to file replica and no new plea of facts or law has been raised in the replica. According to the objections filed by respondent No. 1 the new fact raised in the written statement was that the ownership of the suit property was not conferred upon father of the parties as such no suit for partition could be filed.
3. The trial court after hearing the parties has disallowed the application of the petitioner on the ground that the proper permission was granted to the plaintiff respondent-1 on 6.2.2005. The trial court also said that no new plea of fact or law has been raised in replica and what was replied was new facts raised by defendant No. 1 in his amended statement. The application was dismissed.
4. I have heard learned Counsel for the parties and examined the record.
5. On the basis of the suit filed by the plaintiff seeking partition reliance was placed on facts that plot was allotted to the father of the parties by the Government and on that construction was raised. Inherent in such plea of fact is that the property was owned by father of the parties which was required to be partitioned by metes and bounds after the death of their father. The defendant also in his written statement has conceded that there was an oral partition effected in the year 1990 by virtue of which five marlas out of said land has fallen in the share of defendant on which he has raised construction. Even in his amended written statement also he has admitted this fact of partition. The case of defendant before the trial court is that by virtue of family settlement/partition, five marlas of land was given to the defendant on which he has raised construction.
6. It is defendant No. 1 the present petitioner who in his amended written statement questioned the right of plaintiff to seek partition of the property on the ground that no ownership rights were conferred upon father of the parties by the State Government. This necessitated the plaintiff to seek permission of the court to file replica only to explain the fact that the ownership of the property has since been vested with the father of the parties. Scope of Order 8 Rule 9 CPC contemplates that no new pleas can be allowed to be introduced so as to alter the basis of the plaint. In case the replica seeks to introduce a new plea which has effect of altering the basis of plaint, no permission to file replica can be granted. In that eventuality course available to parties is to file petition under Order 6 Rule 17 CPC so that the contesting party is not taken by surprise. In the present case the pleas taken in the replica do not alter the basis of plaint on which the plaintiff has sought partition of property by metes and bounds. The parties have all along been contesting the suit on the basis that they are the legal heirs of late Shri S.N. Khajuria who owned plot No. 444-A. It was never contested by defendant No. 1 that the property was not owned by his father but his consistent stand has been that he was given five marlas of plot from the said property by virtue of oral family settlement and he has constructed the said house of his own. Plaintiff on the other hand states that he is entitled to half of share of the property left behind by their father. The plea raised by defendant that ownership of property was not conferred upon their father as such plaintiff has no right to seek partition of the property is not correct.
7. The application filed by the defendant under O. 6 R 16 CPC is factually and legally misconceived. It is reiterated that the replica filed by the petitioner does not alter the basis of the suit. I find no force in this revision petition and the same is dismissed.