RAJEEV RANJAN VERMA Vs. MANJU SRIVASTAVA

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 21 -3 -1998 passed by the learned Munsif, Bettiah, in Title Suit No. 131 of 1992 by which the prayer made from the side of the plaintiff -petitioner under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint has been rejected.

(2.) THE plaintiff -petitioner filed the above -mentioned suit against the opposite parties for declaration that the sale -deed dated 25 -6 -1991 executed by Phulbati Kuer in favour of Manju Srivastava defendant No. 1 in respect of 8 khatas land as detailed in Schedule -II of the plaint is illegal, impropriety and not binding on the petitioner and that the defendants have no right to interfere with the possession of the land. Further prayer was made for issuance of permanent injunction against the defendants regarding restraint for not interfering with the possession of the plaintiff. The fact of the case was that one Dukhi Prasad had three sons, namely, Ganesh Prasad, Kamta Prasad and Ganga Prasad. After the death of Dukhi Prasad, three sons in inherited his properties. Ganesh Prasad died leaving behind two sons, namely, Radha Kant Prasad and Duttatrey Prasad. Duttatrey Prasad had three sons, namely, Raman Prasad, Rajesh Prasad and Raju Prasad. A partition took place amongst the three sons of Duttatrey Prasad in respect of their ancestral properties and each son got 1/3 share. Plot No. 711 in Khata No. 116 -was the ancestral property belonging to the three sons of Duttatrey Prasad and its total area was 13 bighas 8 Khatta and 10 dhoors. Ganga Prasad in the partition got 3 bighas of land out of plot No. 711 together with other shares in other plots. Ganga Prasad died in the year 1970 leaving behind his widow Phulbati Kuer, defendant No. 3, and his daughter Smt. Sabitri Devi. After the death of Ganga Prasad all the properties devolved on his widow Phulbati Kuer and the daughter Sabitri Devi. On the basis of private partition between the widow and daughter of Ganga Prasad 4 bighas 15 khatas 9 dhoors of land came in possession of Phulbati Kuer and the remaining portion to Sabitri Devi. Phulbati Kuer made a gift of her 3 bighas of land by executing registered deed of gift on 25 -3 -1972 as shown in Schedule -II of the plaint. The gift was made in favour of Sabitri Devi. But, it could be found afterwards that the defendants were claiming 8 khatas of land out of the properties of Schedule -II of the plaint, which ' have been shown in Schedule -Ill on the basis of the sale -deed allegedly executed in favour of defendant No. 1 on 25 -6 -1991 by Phulbati Kuer. As the plaintiffs possession was threatened by the defendants persons the suit was filed. The defendants contested the suit by filing written statement and stated, inter alia, that the lands in Schedule -Ill have no concern with the lands in Schedule -II and that there was no gift in favour of the plaintiff by Phulbati Kuer. After contest the suit was decreed in the first Court then the appeal was preferred by the defendants persons. But, the appellate Court held that the suit was not decided in their proper perspective regarding the inclusion of Schedule -Ill within Schedule -II lands and as such, with some observation the suit was remanded to the Munsif Court for deciding the matter afresh. When the suit was remanded then the plaintiff filed a amendment petition to include a sketch map showing the position of Schedule -Ill lands within Schedule -II lands and also for a further plea for declaration of right, title and interest of the plaintiff over the gifted land. The amendment petition was objected to from the side of the defendants and then the learned Munsif once held that there was no scope of allowance of any amendment after the remand order was passed and referring to the order of remand Court the amendment petitioner was rejected. Then, a revision was preferred by the petitioner being Civil Revision No. 1748 of 1996. Vide order dated 27 -6 -1997, the revision petition was allowed holding that the learned Munsif has committed error of law in not construing the amendment petition on merit and rejecting it only referring to the remand order. It was observed in the following manner:

(3.) ON the other hand, it has been submitted for and on behalf of the opposite parties that whatever observation was made in the appellate judgment was attempted to be removed by way of amendment in the plaint and hence such amendment cannot be allowed as the same would mean filing up of the lacuna when some right had already been accrued in favour of the defendants as per observation made in the appellate order.