JIWADHAN RABIDAS AND ORS. Vs. SUNDARI DEVI

JUDGEMENT

(1.) Aggrieved by order dated 7.2.2015 in Title Suit No. 2 of 2011 whereby, application for amendment in the plaint has been rejected, the present writ petition has been filed. The petitioners are plaintiffs in Title Suit No. 2 of 2011. The suit was instituted for declaration of their title through adverse possession or alternatively, to direct the defendant to execute sale deed in performance of agreement dated 23.12.1997. The suit was contested by the defendant pleading that father of the plaintiffs namely, Shyamlal Rabidas executed a registered sale deed on 3.2.1993 in her favour and she was put in possession of the suit property. The defendant claimed that she and her sons have been cultivating the said land and the land has been mutated in their name. In the pending suit, the plaintiffs filed application for amendment on 1.8.2014. In the application under Order VI Rule 17, the plaintiffs sought to incorporate the following facts: - -

(2.) A perusal of the proposed amendment discloses that the plaintiffs have sought to incorporate entirely new fact which was not pleaded in the plaint. The averment that the plaintiffs donated the suit land through affidavit dated 5.8.2005 is a fact which cannot be said not to be within the knowledge of the plaintiffs. The plea taken by the plaintiffs in application for amendment that on 1.4.2014, the plaintiff No. 2 found the affidavit dated 5.8.2005 in a box is thus, patently false. Leaving aside the plea taken by the plaintiffs in the application for amendment, I find that the said application was filed after the plaintiffs examined several witnesses including the executor namely, Jiwadhan Rabidas. The trial court noticed that in his deposition he did not aver about affidavit dated 5.8.2005. Otherwise also, normally, amendment in the plaint is not permitted after the suit goes for trial. Considering the aforesaid facts, I find, no infirmity in the impugned order dated 7.2.2015 and accordingly, the writ petition stands dismissed.