DEEPNARAYAN SINGH Vs. SHAHID HASSAN

JUDGEMENT

(1.) The petitioners are aggrieved by the order dtd. 13/8/2018 passed by the learned Subordinate Judge-XVI, Muzaffarpur (East) in Title Suit No. 1216 of 2014 allowing the petition dtd. 19/11/2016 filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code").

(2.) The facts of the case as it emerges from the record are that plaintiffs/respondents-1st set filed Title Suit No. 1216 of 2014 for declaration of their title and interest over Schedule-I land, confirmation of possession over Schedule-I/A land and recovery of possession over Schedule-2 land of the plaint with a direction to remove the illegal unauthorized construction and handing over its vacant possession. The petitioners are defendant nos. 5, 6, 8 and 11. The defendants/petitioners filed their written statement rebutting the claim of the plaintiffs. The plaintiffs filed an amendment petition dtd. 29/11/2016 for inclusion of new Paragraphs- 18 to 32 and renumbered paragraphs- 18 to 28 as 29 to 43 with additional prayer to make the District Collector, Muzaffarpur as a party defendant no. 14. In the amendment petition, further relief(s) have been added including cancellation of sale deeds. The defendants/petitioners filed their rejoinder dtd. 4/3/2017 to the amendment petition, opposing the contention of the plaintiffs. After hearing the parties, the learned Subordinate court allowed the amendment petition in part. The petitioners are aggrieved by the said order and challenged the same before this Court in the instant petition.

(3.) Learned counsel for the petitioners submitted that the order of the learned trial court is against the law and it has committed material irregularity which requires consideration by this Court. The learned trial court exceeded its jurisdiction. The learned trial court did not consider the fact that by allowing the amendment, it has allowed introduction of a new case and the same is not sustainable in law. The learned trial court did not take into consideration the fact that the plaintiffs have tried to challenge the survey entry in khatiyan as well as some sale-deeds as well after a very long gap of time and has tried to raise time barred claim by way of amendment. Learned counsel reiterated that the objection of the petitioners was not considered. The learned trial court has also not considered the fact that by introducing the amendment, the plaintiffs have virtually re-written their plaint. Further, the learned trial court allowed the amendment petition challenging the survey entry in khatiyan but refused to make the Collector as party in the suit as defendant no. 14. If State Government is not made party though relief has been sought for correction in khatiyan entry, the suit would become bad for non-joinder of necessary party. The learned trial court has failed to consider the objections raised by the defendants/respondents and brushed aside the same by passing a cryptic order. Thus, the learned counsel submitted that the order of the learned trial court is bad in the eye of law and the same could not be sustained.