Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16771 of 2011 ====================================================== 1. Satyendra Kumar, son of Late Jagdish Prasad 2. Uday Shankar Sinha @ Uday Shankar, son of Late Jagdish Prasad 3. Sunita Devi, wife of Late Sunil Kumar 4. Sumindar Devi daughter of Late Jagdish Prasad 5. Subida Devi, daughter of Late Jagdish Prasad 6. Prem Latat, daughter of Late Jagdish Prasad 7. Archana Kumari @ Archana Rani, daughter of Late Jagdish Prasad 8. Most Sunita Kumari, wife of Late Ram Pravesh Kumar, all residents of village- Balia Bigha, PO- Barandi, PS Rahui, District Nalanda .... .... Petitioners Versus 1. Krishna Prasad, Son of Laate Deo Nath Mahto 2. Radhe Prasad, Son of Laate Deo Nath Mahto 3. Arjun Prasad, Son of Laate Deo Nath Mahto 4. Most Sushila Devi wife of Late Jay Narayan Singh 5. Lallan Kumar son of Krishna Prasad 6. Ganeshi @ Uday Chand Divakar, son of Krishna Prasad 7. Viveka Kumar, son of Krishna Prasad 8. Navneet Kumar son of Krishna Prasad 9. Ravi @ Futus son of Radhe Prasad 10. Atul Kumar minor son of Arjun Prasad, under guardianship of his father and natural guardian Arjun Prasad 11. Raju son of Late Jay Narayan Singh 12. Sonu son of Late Jay Narayan Singh, all residents of Village- Barandi, PO- Barandi, PS Rahui, District Nalanda 13. Pumpi Singh, wife of Ravitesh Kumar and daughter of Late Jay Narayan Singh, resident of Quarter No. 253, Subhash Nagar, Chote Govindpur, Jamshedpur …… Respondents 1st set 14. Lav minor son of Anant Kumar, under guardianship of his father and natural guardian Anant Kumar, resident of village- Katari, PS- Rajgir, District- Nalanda 15. Kus minor son of Anant Kumar, under guardianship of his father and natural guardian Anant Kumar, resident of village- Katari, PS- Rajgir, District- Nalanda 16. Chotu Kumar minor son of Late Ram Pravesh Kumar, under guardianship of his mother and natural guardian Most. Sunita Kumari, resident of village- Balia Bigha, PO- Barandi, PS- Rahui District- Nalanda 17. Lalu Kumar minor son of Late Ram Pravesh Kumar, under guardianship of his mother and natural guardian Most. Sunita Kumari, resident of village- Balia Bigha, PO- Barandi, PS- Rahui District- Nalanda 18. Sonu minor son of Late Sunil Kumar, under guardianship of his mother and natural guardian Most. Sunita Kumari, resident of village- Balia Bigha, PO- Barandi, PS- Rahui District- Nalanda .... .... Respondents 2nd set ====================================================== Appearance :
Legal Reasoning
Patna High Court CWJC No.16771 of 2011 (10) dt.08-07-2013 2/5
Legal Reasoning
For the Petitioners : Mr. Surendra Kumar For the Respondents : Mr. Syed Asghar Nazmi ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 10 08-07-2013 Heard learned counsel for the parties. The petitioners are aggrieved by the order dated 24-01-2008 passed in Title Suit No. 5/2001 by learned Subordinate Judge, 1st, Biharsharif, Nalanda whereby he has rejected the amendment petition dated 16-12-2005 filed by the petitioners/ plaintiffs for amendment in the relief portion of the plaint besides addition of some left out plots in the schedule of the plaint. Learned counsel for the petitioners submits that Title Suit No. 5/2001 has been filed by the petitioners for declaration and preparation of preliminary decree with respect to their 1/3rd share in the ancestral property and thereafter for final decree carving out their 1/3rd property by appointment of survey knowing Pleader Commissioner and delivery of possession. The written statement was filed on behalf of respondents/ defendants disputing the unity of title and jointness of possession and they claimed that there was already partition through the registered deed of partition dated 06-08-1971. They also took the plea that one of the co-sharers, Munshi Mahto, had Patna High Court CWJC No.16771 of 2011 (10) dt.08-07-2013 3/5 executed a deed of gift on 30-08-1971 in favour of his daughter. In view of such written statement filed by the defendants, the plaintiffs/ petitioners filed a petition for amendment of plaint by incorporating and challenging the story of alleged deed of partition and alleged deed of gift. Such amendment petition was allowed. In view of amendment of the plaint, the petitioners/ plaintiffs also sought amendment in the relief portion of the plaint as well as value of the suit. Petitioners also prayed for an amendment by adding some more plots which were left out, due to inadvertence, to be mentioned in the schedule of the plaint. The court, however, rejected the amendment petition vide impugned order dated 24-01-2008 on the ground that if the proposed amendment was allowed, it would change the nature of the suit, cause of action as well. Further, validity of a deed of exchange and deed of gift could not be taken into consideration in the partition suit. The court also recorded that if the proposed amendment was allowed, it would cause multiplicity of the suit. Learned counsel for the petitioners has submitted that the amendment in the relief portion would not have changed the nature of the suit in view of the fact that petitioners’ earlier petition for amendment was allowed which was based on contents of the written statement wherein the defendants/ respondents Patna High Court CWJC No.16771 of 2011 (10) dt.08-07-2013 4/5 pleaded that there was already partition through the partition deed dated 06-08-1971 and deed of gift dated 30-08-1971. He submits that nature of the suit could not have been altered had the relief been allowed to be amended. He has placed reliance on a Supreme Court judgement reported in (2002) 2 SCC (Prem Bakshi & Ors. v. Dharam Dev & Ors). He has also placed reliance upon a judgement of this court reported in 2005 (4) PLJR 737 (Shiv Gopal Sah vs. Sita Ram Saraugi) to contend that in order to do complete justice between the parties, to minimize the litigation and to prevent unnecessary harassment the amendment of the pleadings could be allowed. It seems that by order dated 23-02-2004 the petitioners were allowed to amend the plaint in view of stand of the defendants in their written statement as regards the deed of partition and deed of gift. There was, therefore, no occasion for the court below to have refuses the amendment in the relief portion of the plaint as the amendment sought for in the relief portion is consequential to the amendment already allowed vide order dated 23-02-2004. In view of above, this application is allowed. The impugned order dated 24-01-2008 passed by learned Subordinate Judge, Biharsharif, Nalanda in Title Suit No. 5/2001 is set aside. Patna High Court CWJC No.16771 of 2011 (10) dt.08-07-2013 5/5 The amendment petition dated 16-12-2005 is allowed. Let necessary amendment be incorporated, accordingly, in the plaint. BKS/- (Chakradhari Sharan Singh, J)