SHRIMOD SINGH Vs. SURESH SINGH

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 27.5.1997 passed by the Munsif -lst, Begusarai, in Title Suit no. 101 of 1994 whereby the amendment prayed for by the plaintiffs vide their petition dated 25.4.1996 under Order ,6 Rule 17 of the Coc|e of Civil Procedure has been allowed.

(2.) THE suit was filed by the plaintiffs -opposite parties for declaration of title and recovery of possession against the defenders. It was the case of the plaintiffs that the defendants illegally by encroachment constructed wall over 5 dhoors of land in plot no. 598 belonging to the plaintiffs. The tracing of title was made by the plaintiffs in differents paragraphs of the plaint. This tracing of the title of the plaintiffs and their right, title and interest over the suit land have been denied in the written statement filed by the defendants. On 19.1.1996 a prayer was made for amendment of the plaint but the same was afterwards withdrawn. Then subsequently the plaintiffs filed the present amendment petition on 25.4.1996. In the amendment sought for the plaintiffs wanted to add a fresh paragraph 1(a) for inclusion of the geneological table to show genesis of acquisition of right, title and interest of the plaintiffs over the suit land. Another amendment was sought for, for inclusion of a fresh paragraph 4(a) in the plaint, and also for adding a further relief in the prayer portion as paragraph 10 (a) (i) in the plaint. In that relief it was sought for declaration that the judgment and decree passed in Title Suit no. 48 of 1995 and the proceedings of Title Execution no. 13 of 1995 are null and void. In earlier paragraphs of the amendment sought it was mentioned that Title Suit no. 48 of 1995 was filed by the defendant -petitioner Shrimod Singh against another and collusive decree was obtained and by showing execution case delivery of possession was being shown in his favour and the plaintiffs after knowing the same had sought for inclusion of the same in the present suit.

(3.) THE main objection of the opposite parties regarding allowance of the amendment is to the effect that the earlier suit was in the knowledge of the plaintiffs and its execution thereof. But the same was never incorporated in the plaint earlier and as such the amendment sought for belatedly ought to have been rejected. The second ground was that if the plaintiffs were in possession over the suit land of Title Suit no. 48 of 1995 then in the execution proceeding they ought to have moved under Order 21, Rule 97 of the Code of Civil Procedure after creating obstructions in the same. There cannot be any fresh suit for declaration of the decree to be filed. In this respect 1992 (2) PLJR 805 (Abdul Bari vs. Anisul Rahman & another) has been referred to and also 1990 NOC Andhra Pradesh 123 (Pavan Kumar & another vs. K. Gopalkrishna & another).