MAHENDRS DAS Vs. UDAYANATH DAS & ORS.

JUDGEMENT

(1.) PLAINTIFF is the petitioner against refusal of amendment of the plaint. The plaintiff brought the suit for partition claiming 1/4th share in the suit properties with the pleading that opposite parties 4 and 5 were also entitled to l/4th share and opposite parties 1 to 3 were entitled to 1/2 share. Subsequent to filing of the written statement, a petition for amendment was filed to the effect that defendant No.4(opposite party No.4) and the mother guardian of defendant No.5(opposite party No.5) had by registered sale deed of 1930 transferred their 1/4th interest in the property in favour of the plaintiff and as such he was the owner in possession of the said property. The effect of the amendment sought for was thus to claim half share in the suit property. The learned Subordinate Judge disallowed the amendment holding that he effect of the same would be to negate the admission of the plaintiff regarding 1/4th share of opposite parties 4 and 5 in the suit property and for the purpose relied upon the decision of this Court in Fakir Majhi and another v. Bhagirathi Majhi and another,, 47 (1979) CUT 94. The decision referred to was a case where the plaintiff has filed the suit for a declaration that the alienations made by defendant No.1 in favour of defendants 2 and 3 were void and or permanent injunction restraining the said defendant No.1 from alienating the '4' schedule lands therein. The case of the plaintiff was that he was the adopted son of defendant No.1 who had been to Burma where he had acquired considerable wealth and with the help of that had purchased the disputed land. Defendant No. 1 had married for the second time in 1975 and under the influence of the second wife had alienated the 'B' and 'C schedule lands without legal necessity. Thus the plaintiff claimed the disputed lands to be the self -acquired lands of defendant No.1 to which he was entitled being his adopted son. In the amendment sought for, the plaintiff had sought to plead that defendant No.1, instead of purchasing the disputed property with the wealth acquired by going to Burma, had purchased the disputed property out of the money acquired from the ancestral property. Thus, while originally the property was described as the self -acquired property of defendant No.1, by way of amendment the same was sought to be described as having been obtained with the aid of ancestral properties. From the very nature of the case, it was apparent that the amendment sought for was to completely change the nature of the right claimed by the plaintiff therein by charging substantially the factual details.

(2.) THE facts so far as the present case is concerned are however different. The plaintiff has claimed for partition of the joint family property and by the amendment has only sought to enlarge his share in view of a sale deed executed by the opposite parties 4 and guardian of opposite party No.5. The nature of the suit is not changed, but what is sought to be done through amendment is only enlargement of the share so far as the plaintiff concerned. Any admission of the plaintiff regarding the share of opposite parties 4 and 5 is also available to be varied by presentation of proper facts rebutting the admission. It is well known that an admission is otherwise binding on the person making it until rebuttal thereof is made by leading evidence otherwise. I would thus hold that the amendment in no way charges the nature of the suit. It was held in Sanatan Mohapatra and others v. Hakim Mohammad Kazim Mohammad and others,, 1977(1) CWR 474, dealing with the scope of Order 6, Rule 17 C.P.C. as follows:

(3.) IN the result, the revision is allowed with costs to the extent as aforesaid.