JAGDISH RAM Vs. GHURAN CHAUDHARY

JUDGEMENT

(1.) The petition under Order VI, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the "Code") filed by the petitioners/plaintiffs before the Court below came to be dismissed by learned Additional Munsif, Saharsa in Title Suit No. 118 of 2001 by an order dated 24.8.2006 which is impugned in the present application under Article 227 of the Constitution of India. I am not going into the facts in detail, in view of the dispute which the present application involves.

(2.) The petitioners filed Title Suit No. 118 of 2001 for declaration of their right, title and possession over the suit land as detailed in Schedule-I of the plaint and other ancillary reliefs. The petitioners developed a case that the land belonged to one Ameer Tiyer who had one son Panchu Tiyer. Panchu had two daughters, namely, Banki Devi and Pauwa Devi. After the death of Panchu his daughter Pouwa Devi inherited the property as Banki Devi had died issueless and was living at her sasural before the death. Pouwa had one son, Ramdhari Choudhary who died leaving behind two sons, namely, Narayan Chaudhary and Babulal Chaudhary. Ramdhari had sold his share to the plaintiffs. Other aspects of the pleadings as has been mentioned in the present application are not being referred to as they are not required for the purpose of present case. Respondent No. 1, the defendant before the Court below filed written statement. He pleaded, inter alia, that Panchu died leaving behind three daughters, namely, Rajiya, Banki and Pouwa all of whom inherited the disputed land after death of their father Panchu. This is to be noted at this stage itself that the plaintiffs in their plaint had claimed that Panchu had two daughters Banki and Pouwa and his entire property devolved upon Pouwa from whose heirs the plaintiffs had purchased the suit property. In the written statement, the defendants, on the contrary, claimed that all the three daughters of Panchu, namely, Rajiya, Banki and Pouwa inherited the property of their father. Rajiya and Banki gave their share to defendant No. 1 for his habitation in the year 1964, whereupon he came in possession after constructing the house. The defendants also claimed that heirs of Rajiya, namely, Ram Kishun Choudhary and heirs of Banki Shambhu Choudhary sold their share of land to defendant No. 1 on 15.2.2003. It is in this background that the plaintiffs filed an application under Order VI, Rule 17 of the Code for amending the plaint to the effect that Panchu had one more daughter, namely, Rajiya who died issueless in her childhood. This is also to be noted that this amendment was filed in the year 2006 when three plaintiffs' witnesses were already examined and cross-examined. This is to be noted that even plaintiff No. 4 was examined as P.W. 1 and in course of examination he reiterated that Panchu had two daughters without naming the third daughter Rajiya.

(3.) Learned Court below rejected the amendment petition on three grounds; firstly that P.W. 1, in course of examination did not refer to Rajiya as a daughter of Panchu and he named only two daughters. Secondly, the Court was of the opinion that the amendment was being brought in order to patch up the lacuna left in the case. Thirdly, the petition was vexatious and was brought to linger the disposal of the suit.