BABABN SINGH Vs. GYANENDR A PRATAP SINGH

JUDGEMENT

(1.) The instant petition has been filed under Article 227 of the Constitution of India for quashing the order dtd. 16/7/2018 passed by learned Sub Judge-IV, Bhabhua (Kaimur) in Title Suit No. 158 of 2013 whereby and whereunder petition dtd. 27/11/2017 filed by the original plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') has been allowed.

(2.) Briefly stated, the facts of the case are that one Most. Chameli Kuer (original plaintiff) filed Title Suit No. 158 of 2013 against the defendants/petitioners for cancellation of certain sale deeds bearing Nos. 92 to 97 dtd. 4/1/1993 in respect of Schedule-A land. As per the case of the plaintiff, the defendant no. 1/respondent no. 1 is the relative of the plaintiff. The respondent no. 1 had been helping the original plaintiff and her husband in consolidation matter before the Director Consolidation. The original plaintiff further claimed that she was the only daughter of her father and after his death, she filed a suit for partition bearing Partition Suit No. 46 of 1989 against her uncle and his children. The said suit was disposed of on compromise on 7/2/1993. While the plaintiff had been litigating the matter, the respondent no. 1, taking the plaintiff and her husband into confidence, made them to execute a number of sale deeds telling them that it would create strong evidence in their favour in the partition suit. The original plaintiff further claimed that all the sale deeds were executed without any consideration. In Partition Suit No. 46 of 1989, the respondent no. 1 did not get himself impleaded, though he later on claimed that the original plaintiff executed sale deeds in his favour as well as in favour of his wife and sons. The defendants/respondents appeared and filed their written statement. The defendants/respondents submitted in the written statement that in Title Partition Suit No. 46 of 1989, plot no. 4130 of Khata No. 401 was also the subject matter. During pendency of the said suit, Chameli Devi executed sale deed nos. 92 to 97 dtd. 4/1/1993 in favour of defendants/respondents. The defendants of Partition Suit No. 46 of 1989 filed an injunction petition on 22/3/1993 praying therein that plaintiffChameli Devi be restrained from alienating the suit land and on 23/3/1993, details of the sale deeds executed by Chameli Devi were given. Thereafter, Chameli Devi filed rejoinder on 23/3/1993 in which she disclosed that she had executed sale deeds for valuable consideration and vendees are in possession over the vended land. On 12/4/1993, an order was passed in which the defendants and plaintiff were restrained from selling the land. Thereafter, the defendants of Partition Suit No. 46 of 1989 filed a petition under Order 14 Rule 2 of the Code in which they gave details of sale deed nos. 92 to 97 in paragraph5 of the said petition and the copy of the same was supplied to Chameli Devi. Thereafter, a compromise petition was filed in which one acre land of Plot No. 4130 including the land transferred through sale deed nos. 92 to 97 was allotted to Chameli Devi. Further Chameli Devi filed Mutation Case No. 869/95-96 for mutation of her name in Register-II in respect of 70 decimal land of said plot only excluding 30 decimal of lands transferred through sale deed nos. 92 to 97. Her name was entered into Register-II and she started paying rent only for 70 decimal of land. Later on, Chameli Devi further executed sale deed no. 9408 dtd. 17/10/1997 in favour of Shyamal Gupta and her sons had executed sale deed dtd. 27/7/2009 bearing No. 6975 in favour of Parmanand Kesari and in both the sale deeds, in Southern boundary, name of Baban Singh, defendant no. 1, has been mentioned. Thus, the defendants claimed that Chameli Devi admitted about the execution of sale deed nos. 92 to 97 and she had knowledge about execution of the aforesaid sale deeds and thus, the defendants sought dismissal of the suit of the plaintiff on the ground of limitation. The defendants/respondents also filed a petition under Order 7 Rule 11 of the Code for rejection of the plaint praying that the suit was not maintainable. During pendency of the suit, on 27/11/2017, plaintiff filed an application for amendment of the plaint under Order-VI Rule 17 of the Code. The defendants/respondents filed the rejoinder on 6/12/2017. Written argument along with list of documents was filed by the defendants/petitioners. The learned trial court vide order dtd. 16/7/2018 allowed the amendment application of the original plaintiff and the said order is under challenge before this Court.

(3.) Mr. S.S. Dvivedi, the learned senior counsel appearing on behalf of the petitioners, submitted that the impugned order is not sustainable as the learned trial court failed to consider the different pronouncements of this Court as well as the Hon'ble Supreme Court wherein it has been laid down that facts which have been admitted by the parties cannot be permitted to be withdrawn and could not be substituted with different facts. Learned senior counsel further submitted that the order impugned has been passed without considering the points raised on behalf of the defendants/petitioners in their rejoinder, written argument and also to the rulings filed on their behalf. The order passed by the learned trial court is erroneous on the point that while allowing the amendment application, the trial court observed that issues have not been framed but the court lost sight of the fact that evidence of PW-1 Chameli Devi had already been filed on 16/7/2014. Learned senior counsel further submitted that the plaintiff had filed the amendment application with sole ground to overcome the issue of limitation since the defendants/petitioners have brought on record a number of documents showing knowledge of the plaintiff about the sale deed nos. 92 to 97. The suit of the plaintiff was time barred. Now, the plaintiffs want to change the sale deeds with word 'Ekrarnama (Agreement to Sale)' so as to overcome the issue of limitation being raised by the defendants/petitioners. Learned senior counsel further submits that the impugned order is cryptic and does not provide any reasons in passing the order. Learned senior counsel reiterated that learned trial court committed an error of record when it observed that no issues have been framed till date whereas issues have already been framed and examination-in-chief of PW-1 had already been filed on 16/7/2014. Learned senior counsel further submitted that the said amendment will completely change the nature of the suit as in place of sale deeds, the plaintiffs/respondents want to substitute the other word 'Ekrarnama (Agreement to Sale)'. Learned senior counsel further submitted that the claim of the plaintiffs/respondents that both sides were restrained from transferring the land by the Collector-cum-District Registrar vide order dtd. 28/12/1992 is not correct as only the defendant- Nathuni Singh was restrained in respect of land of Village-Arari, P.S. No. 389 of Bhagwanpur whereas further proceeding has been going on for the land situated in Bhabhua Municipality. From bare reading of the plaint, it appears it is not correct to say that due to some inadvertent mistake or typographical error, the word 'Baynama' has been mentioned instead of word 'Ekrarnama' . Thus, the admission has been made by the plaintiffs that the original plaintiff executed a number of sale deeds. Now, the plaintiffs/respondents want to resile from earlier statement made by the original plaintiff. Since the trial has commenced, the plaintiffs/respondents are required to show due diligence for not bringing the said fact in their plaint prior to commencement of the trial. Thus, the learned senior counsel submitted that the impugned order is not sustainable and the same needs to be set aside.