SUDARSAN SWAIN Vs. JAGANNATH ROUT

JUDGEMENT

(1.) ON 19th November, 1959, the 1st defendant sold the disputed property by a registered sale deed, Ext. I, to the 6th and 7th defendants. The disputed land constitutes 0. 32 acre. In a partition between defendants 6 and 7, who are brothers, the suit-land fell to the share of defendant 6. By a registered sale-deed ext. 2, defendant 6 sold 0. 06 acre to the plaintiffs on 9-5-60 This six decimals were sold out of two plots, 2075 and 2076, three decimals from each of the plots from their southern side. On the same day, defendant 6 transferred the balance 6. 26 acre to defendants 9 to 13 and plaintiff 9 without any specification of the boundary. On July 26, 1960, T. S. No. 149/60 was filed by the plaintiffs for declaration of their title, and confirmation of possession of 0. 06 acre and for injunction. In that suit plot No. 2075 was wrongly described. On 16th December, 1961, plaintiffs obtained a fresh registered sale deed, Ext. 5 from defendant 6 whereby the mistake in the description of the land in the earlier sale deed, Ext. 2 was rectified. It was accompanied by a new map. On 4th January, 1962, plaintiffs filed a petition for amendment of their plaint in T. S. 149/60 on the basis of Ext. 5 as the suit itself was based on wrong description of the property given in Ext. 2. This amendment application was rejected by an order dated 24-1-62. It was clearly stated in that order that the amendment, if allowed, would alter the subject-matter of the suit, and would substitute a new cause of action distinct and separate from what had been taken in the original suit. On 26th of Feb. , 1962 plaintiffs filed an application for withdrawal of the suit, on the ground of formal defect. That application was rejected as there was no formal defect. Thereafter the plaintiffs were absent on the date of hearing and the suit was dismissed for plaintiff's default. This suit was filed on 14-3-62 wherein the plaintiffs have prayed for partition by metes and bounds, of the lands purchased by them in plot Nos. 2075 and 2076. They claimed also damages. In this suit, the date of accrual of the cause of action was mentioned as 16-12-61 when the registered sale deed, Ext. 5 was obtained by way of rectification of the earlier sale deed, Ext. 2 and also on the basis of dispossession caused by the defendants on 910-60.

(2.) THE defence was that Exts. 1 and 2 were fraudulent and the suit is barred under order 9, Rule 9 and Order 2, Rule 2, C. P. C.

(3.) BOTH the trial court and the lower appellate court held that Exts. 1 and 2 were genuine and for consideration and the suit was not barred by Order 9, Rule 9, C. P. C. They accordingly decreed the suit.