KAMLESHWAR THAKUR Vs. ANGAD THAKUR

JUDGEMENT

(1.) The instant petition has been filed for quashing the order dtd. 9/3/2017 passed in Title Suit No. 123/2004 by the learned Sub Judge-II, Dumraon, Buxar whereby and whereunder the application dtd. 5/8/2015 filed on behalf of the plaintiffs/petitioners under Order VI Rule 17 read with Sec. 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code') seeking amendment in their plaint, has been rejected.

(2.) From the records, it transpires that the petitioners along with respondents 5th set instituted Title Suit No. 123/2004 in the court of learned Sub Judge-1, Buxar against the defendants/other respondents praying for grant of decree for partition in their favour and after partition by metes and bounds, carving out a separate Takhta of 3/5th share in their share. The plaintiffs also sought relief that the revisional survey entry in respect of Schedule II be declared as wrong and sham and the same be held to be in the name of plaintiffs with 3/5th share, defendant 1st set having 1/5th share and defendant 2nd set having 1/5th share in 88 bighas of land described in Schedule II of the plaint. The plaintiffs claim that suit land of Schedule I was taken on settlement under Old Khata Nos. 11, 16, 9, 19, 20 and 42 by Shiv Jatan Rai, Ram Ratan Rai, Gangadhari Rai, Ram Karan Rai, Jhingur Rai and Ram Ekbal Rai through registered Patta executed by Maharaja Kesho Prasad Singh of Dumraon Raj dtd. 18/11/1931 for the period of 1339 fasli to 1346 fasli and subsequently, Maharaja Bahadur filed Title Suit No. 32/1939, which was compromised and Maharaja Bahadur confirmed the permanent raiyati of pattedars. One Ram Bihari Thakur also became satedar with the aforesaid six pattedars. Satedar Ram Bihari Thakur by amicable settlement got 88 bighas of land of Schedule-II and remaining land continued in possession of pattedar. The plaintiffs claim to have joint Satedari right with Ram Bihari Thakur. Accordingly, the plaintiffs claim 3/5th share out of 88 bighas of land. They further claim as the names of plaintiffs and defendants 2nd set have not been mentioned in the revisional survey khatiyan, the same requires correction according to the share of the plaintiffs and the aforesaid defendants. Thus, the suit has been instituted seeking partition as the defendants refused to partition the said property and correct the survey entry in Schedule II land.

(3.) The learned counsel for the petitioners submitted that the learned trial court misdirected itself in taking into consideration the stage of suit and the fact that issues were framed in 2008. But the learned trial court ought to have considered that for just and proper decision in the case, the amendment was necessary. The plaintiffs were not having any knowledge of the properties proposed to be added as joint family properties recorded in the name of the ancestors of the parties, namely Mithoo Thakur in old khatiyan. The material fact showing the nature of property to be joint family property has not been denied in the rejoinder of the defendants and, thus, it would be deemed that the facts stated in the amendment application have been admitted by the defendants. Even the amendment petition has been filed not only by the plaintiff no. 9 alone but by other plaintiffs as well. But the learned trial court wrongly disbelieved the statements made in the rejoinder about the amendment application being filed only by plaintiff no. 9. The observations in this regard is error on record. The learned counsel further submitted that when the properties admittedly belong to the ancestor of the parties, there remains no doubt that such property is joint family property of descendants of such person. The learned counsel further submitted that if the impugned order is allowed to stand, it would result in irreparable loss and injury to the plaintiffs as the present suit is filed for partition and admittedly the lands sought to be incorporated are joint family properties. The amendments are not in the nature that it would change the nature of the suit or would result in retrial. The amendment is only for insertion of certain lands for partition. If the amendment is not allowed, it will result in multiplicity of proceedings between the parties. The learned counsel further submitted that the impugned order is fit to be set aside as the amendment sought for is nothing but it only relates to including some more properties in the suit and it would not change the nature of suit and it would remain the suit for partition nor the amendment would cause prejudice to the rights of the parties. The learned counsel referred to the decision of the Hon'ble Supreme Court in the case of Usha Devi vs. Rijwan Ahamd and Ors. reported in (2008) 3 SCC 717 wherein the Hon'ble Supreme Court allowed the amendment petition filed after framing of issues while imposing cost of Rs.10,000.00 on the plaintiff. The learned counsel further referred to the decision of the Hon'ble Supreme Court in the case of Varun Pahwa vs. Renu Chaudhary reported in (2019) 15 SCC 628 wherein the Hon'ble Supreme Court held that inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Hon'ble Supreme Court further held that the rules of procedure are handmaid of justice and cannot defeat the substantive rights of the parties. The learned counsel also submitted that the learned trial court illegally and improperly exercised jurisdiction vested in it and passed the impugned order. Thus, learned counsel submitted that the impugned order could not be sustained and the same needs to be set aside.