OM PRAKASH Vs. RADHIKA DEVI

JUDGEMENT

(1.) This revision petition has been preferred aginst the order dated 30.9.1999 passed by sub-Judge-IV at Bhagalpur in Title Suit No. 139 of 1989 whereby and whereunder the prayer made by the plaintiff-petitioner under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the plaint has been rejected.

(2.) The plaintiff filed Title Suit No. 139 of 1989 for partition and separate allotment of l/5th share in item No. 2 and l/8th share in item No. 1 of Schedule-A in favour of the plaintiff. The relationship between the plaintiff and defendants are that the plaintiffs and defendant No.1 are the sons of defendant No. 2. That there was amicable partition between the father of the plaintiff with his other co-sharers is admitted. It was also stated in the plaint that there was some amicable settlement between the plaintiff and defendants in respect of some properties and some properties remained joint and hence, the partition suit. In the written statement filed it was contended that there was oral exchange between defendant No. 2 and plaintiff No. 2 regarding their amicably settled portions and then defendant No. 2 made a deed of gift in favour of defendnt No. 1 on 30.5.1989 in respect of 7.20 acres of land at Itahari. Such written statement was filed long back in the year 1990 and the plea of gift has been specifically mentioned in the written statement but the plaintiff did not file any amendment during this long period. Only on 22.3.1999 they filed a petition for inclusion of some statement in the contents of the plaint to the effect that they came to know of such gift in the year 1998 when son of defendant No. 1 by taking his advantage to be an employee in the circle office got the name of defendant No. 1 mutated in respect of the gifted land. In the prayer portion of the suit it was mentioned that in respect of 78 decimals of land which was beyond the scope of oral exchange even if that was there cannot be gifted away and in that way the whole of the gift deed was sought to be declared as void and illegal. Objections were raised from the side of the defendants and after hearing both the parties the amendment has been rejected on the ground that the plaintiff ought to have challenged the deed of gift as a whole and they cannot claim a part of the gifted property to be null and void.

(3.) On the face of the records it appears that the learned court below has misconstrued the relief portion of the plaint. Practically the whole of the gift deed has been challenged but specifically it was mentioned that at least 78 decimals of land could not have been gifted. It appears that the learned court below has not at all considered the point of limitation in the impugned order. It has been stated that such limitation matter was not raised from the side of the defendants also while filing objection and as such waived the same. The question of estoppel and waiver does not come in against the statute. On the face of the records it appears that the plaintiff had the knowledge of the gift deed in the year 1990 itself when in the written statement specifically plea was made regarding the right of the defendants on the basis of the gift deeds. The said gift deed was executed in the year 1989 and after ten years the same is not to be declared as void. The test for limitation in respect of the amendment is that whether such plea can be tenable if a separate suit is filed on the date the amendment has been filed. On the face of the record no such suit can be maintainable as the limitation is three years from the date of execution of the gift deed or from the date of knowledge. In the present case the date of knowledge is the date of filing of the written statement by the defendants in the year 1990. So the amendment sought for is hopelessly barred by limitation in the year 1999. So when by lapse of time a valuable right has already been accrued in favour of the adverse party. Thus even if it is taken that the rejection of the amendment was not very regular by the learned court below as he had taken a wrong approach and misread the relief claimed from the side of the plaintiff then also such amendment cannot be allowed on the face of it as the same is barred by limitation.