GANESHI RAI Vs. FIRST ADDITIONAL DISTRICT JUDGE GHAZIPUR

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India is directed against the order, dated 10-10-1990 passed by the lst Additional District Judge, Ghazipur, by which application No. 38-A moved by the plaintiff-appellants petitioners for amendment of the plaint in original suit No. 335 of 1979, was rejected. The said suit and the two other original suits Nos. 58 of 1981 and 226 of 1980 were consolidated and all the three suits were decided by a common judgment. The application seeking amendment in the plaint was moved before the appellate Court where the appeal was pending against the judgment rendered in the suit.

(2.) Before adverting to the controversy in the writ petition it is necessary to set out few facts. The property in suit originally belonged to Baijnath Rai who died leaving behind certain heirs including a son Nagina Rai and his wife Smt. Rajneta who according to the petitioners were incapacitated and disabled to look after their affairs. The petitioner's case is that Baijnath Rai left a will dated 7-9-1970 bequeathing his properties to the petitioners and requiring the petitioners to look after his wife and son. The name of the deceased's son was entered in the revenue papers only for consolation. It is further alleged that taking undue advantage of the invailidity of Nagina Rai, one Uma Shanker fraudulently got a sale deed dated 17-7-1979 executed from him in respect of a part of the holdings without any consideration, hence the petitioners had to file Suit No. 335 of 1979 for cancellation of the sale deed, against Nagina Rai and Uma Shanker and others. It is further alleged in the writ petition that one Nagendra and his mother Smt. Ramoona claiming to be the sister's son and sister respectively of Nagina Rai set up a will dated 15-6-1980 in their favour and filed Suit No. 226 of 1980 against the petitioners for injunction restraining them from interfering with their possession. It is stated that they also set up a gift deed dated 23-5-1979 in favour of Manorama Devi wife of Nagendra aforesaid by Nagina Rai of some agricultural land. Further, one Smt. Deo Muni alleging herself to be the sister of Nagina Rai filed a third Suit No. 58 of 1981 against Smt. Ramoona Devi and Nagendra and others above named for cancellation of the aforesaid will dated 15-6-1980 in favour of Nagendra and Smt. Ramoona Devi.

(3.) The trial court repelled the case of the petitioners which was based on the will and upheld the other three documents aforesaid said to have been executed by Nagina Rai. As stated earlier, the petitioners moved an application for amendment of the plaint before the appellate authority. A number of amendments were proposed in the application which have been summarised and noticed in the impugned order in the following manner :