VIRENDRA KUMAR Vs. MAHENDRA KUMAR AND 6 OTHERS

JUDGEMENT

(1.) Heard Sri Ravish Chandra Srivastava for the petitioner and Sri Sudhanshu Pandey and Sri Piyush Ranjan Pandey for the caveator.

(2.) The petition has been filed against the order of Civil Judge (Senior Division) dated 23.1.2016 rejecting the application of the petitioner for amendment of written statement and the order of District Judge dated 29.3.2016 dismissing the revision of the petitioner against the aforesaid order.

(3.) Krishna Prasad, now represented by respondents, filed a suit (registered as O.S. no. 464 of 2003 for ejectment of Virendra Kumar from the houses in dispute. Krishna Prasad derived his title in the houses on the basis of a will dated 10.3.1971 executed by his maternal grandfather Ganesh Prasad. The petitioner contested the suit challenging the execution of will dated 10.3.1971. The petitioner has stated that Ganesh Prasad has already executed a will dated 24.4.1945 and bequeathed his property in favour of three grandsons (daughter's sons). Thereafter Ganesh Prasad died and after his death all the three grandsons equally inherited his property. The petitioner has been residing in the house in dispute, from the time of his birth as such he is not liable to be ejected from it. In paragraph 35 of written statement it has been stated that due to dispute between the brothers the matter was referred to Panchayat. During the proceeding before Panchayat, Krishna Prasad disclosed his will dated 10.3.1971. The petitioner on going through it found it as forged and fabricated will and is against the intention of the executor. On coming to know of the fact relating to the will, Krishna Prasad left the Panchayat and not attended before it. Therefore, Panchayat was dissolved without making any award. The trial court after hearing the parties decreed the suit by judgment dated 11.11.2013. The petitioner filed an appeal, registered as Civil Appeal No.234 of 2013. Before the appellate court. The petitioner filed two documents i.e. original agreement referring the dispute to Panchayat and photostat copy of Panchayat award. These two documents were admitted as additional evidence by the appellate court by order dated 2.4.2015. Although plaintiff-respondents challenged this order before this Court in Matters under Art. 227 No. 1500 of 2015 but this Court declined to interfere at this stage and gave liberty to plaintiff-respondents to challenge it in second appeal, if required, in view of Sec. 105, CPC. Thereafter, the matter was heard by the appellate court and appellate court by order dated 20.4.2015 remitted the matter to trial court for recording oral evidence in respect of proof of documents. When the matter was brought before the trial court then at this stage the petitioner filed an application for amendment of the written statement seeking deletion of the portion of paragraph 35 of written statement in which he has stated that due to non cooperation of Krishna Prasad, Panchayat was dissolved without making any award and in its place he wanted to add that it was agreed between the parties that they will abide by the decision of the Panches and in pursuance thereof dispute was referred to Panchayat and Panchayat by its award dated 10.3.1995 has held that will dated 10.3.1971 is illegal and will date 26.4.1945 is genuine and the Panchaes have signed the award. The original Panchayat award was handed over to plaintiff Krishna Prasad Chaurasia and its photostat copy was given to the defendants. This amendment application has been rejected by the trial court holding that at present the suit was not before the trial court and as appellate court has remitted the matter for only a limited purpose of recording the oral evidence in order to prove the additional documents as such the trial court has no jurisdiction to allow the amendment application. The petitioner challenged the aforesaid order in revision, which has been dismissed by the District Judge by order dated 29.3.2016. Hence this petition has been filed.