- (1.) KRISHNA Murari, J. Heard Sri R. N. Upadhayay, learned Counsel for the petitioner and Sri RN. Tripathi appearing for contesting respondent No. 2.
(2.) DURING consolidation procaedings, an objection under Section 9 of the U. P Consolidation of Holdings Act (for short 'the Act') was filed by the petitioners claiming 1/3rd share in the land in dispute. The Consolidation Officer vide order dated 6-11- 1990 decided the objection. Aggrieved the petitioners filed an appeal before the Settlement Officer, Consolidation. DURING the pendency of the appeal, the petitioners moved an application seek ing amendment, in the pedigree set out by them before the Consolidation Of ficer. It was stated that name of Ram Swaroop and Mata Pher the two sons of Nayak who was the common ancestor "of the parties were inadvertently left out to be mentioned. In support of the ap plication, the petitioners filed some order passed in suit No. 858 of 1941 and death register of Ram Swaroop and Mata Pher which went to show that they were also sons of Nayak. The Settlement Officer, Con solidation vide order dated 12-8-1988 allowed the amendment application which was challenged by the respon dents in revision. The Deputy Director of Consolidation vide impugned order dated 22-6-1990 allowed the same and set aside the order of the Settlement Of ficer Consolidation. The Deputy Director of Con solidation held that amendment has been sought with a mala fide intention and will change the nature of the dis pute. He has further held that once the petitioners set out the pedigree they cannot be permitted to make any chan ges as the same may affect the shares of the parties.
(3.) IT has been urged by learned Counsel for the petitioners that by inad vertent mistake the name of only four sons of Nayak was mentioned in the pedigree and two were left out. Ques tion of share is a question of law and a person is entitled to get only his lawful share. He cannot be allowed to take ad vantage of bona fide mistake and obtain share in excess to which otherwise, he is legally entitled to. In reply it has been contended that the amendment not only changes nature of the suit but also causes prejudice in as much as the proposed amendment, if allowed, Would vary the shares of the parties and as such, the same cannot be allowed. Reliance has been placed oh decision of Hon'ble Apex Court in the case of Heeralal v. Kalyan Ma/ & Ors. , 1998 (1) JCLR 153 (SC) : 1998 (89) RD 140 (SC): 1998 (32) ALR 442, wherein it Was held that no in consistent of alternative plea can be al lowed which would displace the plaintiff's case and cause him irretriev able prejudice. In this case the suit filed for partition wherein the defendants had admitted that seven out of ten were joint family properties and subsequently, sought amendment of written state ment withdrawing admission made by them in regard to seven properties. In these circumstances, the Court did not permit the defendants to withdraw their admission.;