YASIN Vs. SK ZAKIRUDDIN

JUDGEMENT

(1.) This is a defendant's petition directed against the order, dated the 30th September, 1982, passed in Title Suit No. 354 of 1979, by the Munsif, Araria.

(2.) By the impugned order, the application of the plaintiff-opposite party for amendment of the plaint has been allowed to the effect that the earlier suit, namely, Title Suit No. 316 of 1960 had already abated under the provisions of Section 4 (c) of the Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956) (hereinafter referred to as 'the Act'). The sole question for determination is as to whether the impugned order falls within the jurisdiction of the court below or not. Ordinarily and generally, prayer for amendment of the plaint is usually allowed, but in view of the special facts and circumstances obtaining in this case, I am constrained to take a view which would disentitle the plaintiff opposite party to any relief by way of amendment and to hold that the impugned order is with out jurisdiction much to my discomfiture.

(3.) A short narration of the relevant facts for the disposal of this application is warranted. Previously, the plaintiff-petitioner instituted a Title Suit No. 316 of 1960 for declaration of title and recovery of possession. On 1st July, 1964, that suit was dismissed by the trial court. The petitioner then preferred an appeal before the lower appellate court, which was registered as Title Appeal No 260 of 1964, which was allowed on the 21st of May, 1976 the petitioner's suit was decreed. Then the opposite party came in second appeal to this Court, which was registered as Second Appeal No. 569 of 1976. That appeal was also dismissed and the petitioner succeeded in the suit. He then levied execution of the decree passed in the suit, which was registered as Execution Case No. 18 of 1976. On 16-11-1977, delivery of possession was effected by the executing court. There after the opposite party filed a miscellaneous case in that execution case, namely, Miscellaneous Case No. 360 of 1978 for a declaration that the delivery of possession was merely a paper transaction. That miscellaneous case was also dismissed by the executing court on 14th December, 1979. Having, thus, been defeated on all fronts excepting in the trial court, which, for all practical purposes, is merely a waste paper now, the opposite party has thereafter filed a fresh title suit registered as Title Suit No. 354 of 1979 for a declaration that the earlier Execution Case No. 18 of 1976 had abated in view of Section 4 (C) of the Act.