Shyam Kumar Singh v. Ram Kumar Singh

declaration that the plaintiff was the absolute owner of the suit property described in Schedule Ka of the plaint comprising 19 Kathas of land with house and other structures bearing holding No. 37 & 37A situate in Mohalla Salempur, Town- Chapra. The sole respondent, defendant in the suit is the full brother of the petitioner. As per the petitioner’s case, 1 Bigha, 2 Patna High Court CWJC No.4886 of 2013 (6) dt.21-06-2013 10 Katha and 10 dhurs of land was purchased by the grandfather of the petitioner and the respondent who constructed different structures over the land. The property was subsequently gifted to Babu Janki Sharan Sahi in the year

1939. Further case is that the suit property was subsequently sold by Janki Sharan Sahi to the petitioner and the respondent by registered sale deed dated 28.7.1962. Petitioner’s further case in the plaint is that from the earnings of the joint family property, the respondent herein was given nucleus for the purchase of the land and to construct house at Muzaffarpur. However, the respondent acquired the said property Muzaffarpur in his own name and the name of his son and wife. It was contended in the plaint that a dispute arose leading to family arrangement on 17.7.2010 by which the respondent was allotted the property of Muzaffarpur and the petitioner was allotted the suit property vacated at Chapra. As in spite of such family arrangement the respondent was claiming share in the Chapra property also, he had to file a suit seeking a declaration of his absolute title over the suit property. A written statement was filed on behalf of the respondent in the suit denying the petitioner’s plea of family arrangement. The respondent also set up a plea that Muzaffarpur property was personally acquired by the 3 Patna High Court CWJC No.4886 of 2013 (6) dt.21-06-2013 respondent, his wife and son and was not a joint family property. After filing of the written statement, amendment petition was filed on 9.10.2012 by the plaintiff/petitioner seeking an alternative plea of partition of Muzaffarpur property in case the Court was unable to grant a relief of plaintiff’s title with respect to Schedule Ka property. The said petition was, however, rejected by the impugned order. It also appears from the pleadings in the writ petition that earlier respondent had filed partition Suit No. 339 of 2008 before the Sub-Judge-I, Muzaffarpur. However, the said suit was dismissed for default. It has been submitted on behalf of the petitioner that learned Court below wrongly dismissed the amendment petition as it was merely clarificatory in nature and sought for only an alternative relief in the event the main relief sought for seeking title over property situate at Chapra was not granted. He submits that refusal of amendment sought for by the petitioner would unnecessarily lead to multiplicity of litigation and in the facts and circumstances of the case the amendment petition ought to have been allowed. He has placed reliance on a Supreme Court Judgment reported in AIR 2006 SC 1647 ( Rajesh Kumar Aggarwal Vs. K.K.Modi), paragraph 18 of which reads thus: “18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the 4 Patna High Court CWJC No.4886 of 2013 (6) dt.21-06-2013 same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.” Learned counsel appearing on behalf of the respondent, however, has contended that the petitioner was aware even at the time of institution of the suit that Muzaffarpur property was purchased in the name of respondent/defendant and if he had to claim any share in such property, he could have sought appropriate relief by filing partition suit. He submits that on the one hand the petitioner sought declaration of his title over the suit property while on the other hand claimed his share in Muzaffarpur property by filing an amendment petition. He submits that apparently permitting amendment as sought amounts to changing the nature of the suit of such inasmuch as initially the suit was filed claiming absolute ownership over the suit property whereas by amendment the petitioner has attempted to convert the suit into a suit for partition, which is not permissible. From the pleadings in the present application itself it will appear that the petitioner was aware about the fact that the Muzaffarpur property was purchased in the name of respondent/defendant, whereas the suit property at Chapra was purchased in the name of the petitioner and the respondent both. In the background of the facts and circumstances and I am of the view that the amendment sought would have materially changed the nature of the suit. 5 Patna High Court CWJC No.4886 of 2013 (6) dt.21-06-2013 I do not find any illegality or irregularity in the order passed by the learned Court below. The judgment relied upon by the learned counsel for the petitioner is not applicable in the present case as in that case the cause of action arose during the pendency of the suit. In the present case the petitioner was aware about the suits of the Muzaffarpur property that it was purchased in the name of the respondent, his wife and son. In my view in the present case, had the amendment sought for been granted, the nature of the suit would have materially changed. In any event, the impugned order does not warrant interference in exercise of supervisory jurisdiction of this High Court under Article 227 of the Constitution of India. In view of the above, this application has no merit and is accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-