BACHI DEVI W/O SRI DASHRATH YADAV RESIDENT OF VILLAGE SIRDALLA TOLA, BABNI NAGMA, P.S. SIRDALLA, DISTRICT NAWADAH Vs. SUDAMA DEVI W/O SHRI JAGDISH PRASAD YADAV RESIDENT OF VILLAGE SIRDALLA, TOLA BABNI NAGMA, P.S. SIRDALLA, DISTRICT NAWADAH

JUDGEMENT

(1.) Heard Mr. Ray Shivaji Nath, learned senior counsel appearing for the petitioner and Mr. S.S. Dwivedi, learned senior counsel appearing for the sole respondent.

(2.) The legal acceptability of the impugned order by which the learned court below has rejected the petition filed by the plaintiff petitioner, purported to be under Order 8, Rule 6C , praying for rejection of the counter claim as raised by the defendant in the suit, has been questioned in the present application under Art. 227 of the Constitution of India.

(3.) There is no dispute to the fact that the parties to the suit are descendants of Guru Sahay Mahto. The plaintiff Bachi Devi being the daughter of Guru Sahay Mahto has filed the suit for partition of the property left behind by her father. Subsequently, after filing of the written statement by the defendant, the prayer of the plaintiff for amendment in the plaint for incorporating the relief against the gift deed executed by the defendant no.1 Ghauli Devi (now deceased) in favour of the defendant no.2 Sudama Devi was allowed. In view of the liberty granted for filing additional written statement, the defendant no.2 filed the additional written statement wherein besides other pleas, a counter claim was sought to be raised against the alienation by gift deed by Guru Sahay Mahto on 22.02.1969 in favour of Ravindra Prasad who is son of the plaintiff. It would be pertinent to notice here that the said Ravindra Prasad is not a party to the suit and during the course of submission, Mr. Nath, learned senior counsel of the petitioner, has pointed out that the property which was gifted to Ravindra Prasad is not the subject matter of the partition suit. The plaintiff raised the objection to the maintainability of the counter claim and prayed for rejection of the said counter claim. The learned court below by the impugned order has turned down the prayer as made by the plaintiff and has decided to entertain the counter claim as made by the defendant in the additional written statement.