BHARAT SINGH Vs. SHATRUDHAN SINGH

JUDGEMENT

(1.) The petitioners have challenged the order dtd. 19/7/2017 passed by the learned Additional District Judge- 1st Chhapra in Title Appeal No. 122 of 2012 whereby the Amendment Petition dtd. 8/9/2016 of the original plaintiffs/petitioners for amendment in the plaint regarding correction in the boundary of the suit property has been rejected.

(2.) The petitioners are the legal heirs of original petitioner who was plaintiff before the learned trial court in Title Suit No. 108 of 1997 who filed the suit against the respondents who were defendants in the court of learned Munsif-I, Chhapra seeking declaration of her title over the suit property and recovery of possession after removal of construction illegally made by the defendants/respondents. The case of the original plaintiffs/petitioners before the learned trial court was that suit property bearing Rs. Plot No. 435, measuring 01 katha 7 dhurs appertaining to Khata No. 89 situated in Village-Gamhariya Kalan (Bangda) P.S.-Jalalpur, District-Saran, stood recorded in the name of Bhajan Hazam. He died leaving behind his son Shivdhari Thakur. The suit plot was sold to Rama Singh vide registered sale deed dtd. 18/9/1925 by Shivdhari Thakur. However, due to mistake of scribe only 01 katha 05 dhurs got mentioned in the sale-deed but the entire plot measuring 01 katha 07 dhurs was sold to Rama Singh. Rama Singh died leaving behind his two sons Raja and Rajendra. These two sons partitioned the aforesaid plot and Northern 13 and ' dhurs came in share of Rajendra Singh and Southern 13 and ' dhurs fell in the share of Raja Singh. The sons of Raja Singh resides outside and their mother, the widow of Raja Singh, the plaintiff, filed the suit as Karta and Manager of joint family of heirs of Raja Singh. Further case of the plaintiffs/petitioners was that the defendants at the instigation of descendants of Rajendra Singh encroached upon northern 07 and ' dhurs out of the share of Raja Singh in Plot No. 435 on 11/7/1997 and started making construction over the land. This encroached property of 7' dhurs is the subject matter of dispute.

(3.) After appearance of defendants/respondents in the title suit, they filed their written statement and contested the suit. The defendants claimed that Rama Singh was eldest among 08 brothers. One of them being Jyoti Singh, the father of the defendants and the suit plot was purchased in 1925 in the name of Rama Singh as Karta from joint family fund and it was joint family acquisition. The defendants further claimed that after private partition amongst Rama Singh and his brother, the enire suit plot fell into the share of Jyoti Singh, the ancestor of the defendants, and the plaintiffs/petitioners' claim about their title and encroachment is not correct. But after contest, the learned trial court decreed the plaintiffs' suit and against the judgment and decree of the learned trial court, the defendants/respondents filed Title Appeal No. 122 of 2012, which is pending before the Court of learned Additional District Judge- 1st Chhapra. In the said title appeal, an amendment petition was filed on 8/9/2016 by the original plaintiffs/petitioner for making correction in southern boundary of the suit land by substituting the word 'plaintiff' instead of word 'Vidya Singh'. The defendants/appellants filed a rejoinder on 20/10/2015, opposing the amendment mainly on the ground that it was filed at belated stage and would change the nature of the case. The learned first appellate court, after hearing the parties, dismissed the amendment petition vide order dtd. 19/4/2017.