YOGINDER YADAV Vs. BAGAR YADAV

JUDGEMENT

(1.) Heard learned counsel Mr. Amrendra Nath Verma appearing on behalf of the plaintiff-petitioner. In spite of service of notice, nobody appeared on behalf of the respondents. This application, under Article 227 of the Constitution of India, has been filed by the plaintiff-petitioner against the order dated 23.5.2011 passed by the learned Second Additional District Judge, West Champaran at Bettiah in Title Appeal No. 57 of 2009 whereby the learned court be-low allowed the amendment at the appellate stage on the ground that it is typing mistake and the nature of the suit will not change.

(2.) The learned counsel for the petitioner submitted that in paragraph-7 of the written statement the defendants clearly admitted the fact that the plaintiff is the son of Cheri Devi, who was the daughter of Dharichhan Raut. In other paragraphs of the written statement also it is specifically admitted by the defendants that Cheri Devi was the daughter of Dharichhan Raut. In the evidence also defendant No. 1, who was examined as DW-3, has categorically admitted at paragraph 11 that Cheri Devi was the daughter of Dharichhan Raut. After considering the pleading in the written statement and the evidences, the trial court decreed the plaintiff's suit but in the appellate stage the defendants filed an application for amendment and they sought the relief to delete the admission made in paragraph 7 of the written statement and tried to add the fact to the effect that Dharichhan Raut died leaving behind his second widow Sarali Devi only. According to the learned counsel, categorical admission made by the defendant in the written statement could not have been allowed to be withdrawn and a new fact would not have been allowed to be brought in the pleading by way of amendment by the appellate court and now at this stage if the impugned order is allowed to be stood then on this ground alone the matter will be remanded to the trial court for a" fresh decision.

(3.) It appears that Title Suit No. 114 of 2002 was filed by the plaintiff-petitioner for declaration of title with respect to the suit property alleging that he is the son of Cheri Devi and the property belonged to Dharichhan Raut. On the death of Dharichhan Raut his only daughter Cheri Devi came in possession of the suit property and after death, the petitioner is coming in possession of the same. At paragraph 7 of the written statement the defendants-respondents categorically admitted this fact that Dharichhan Raut died leaving behind only one daughter Cheri Devi as legal heir and after his death Cheri Devi came in exclusive possession over the property left by her father as a rightful owner and title holder.