Harsh Kumar - (1.) Heard Sri S.K. Tiwari, learned counsel for petitioners, Ms. Shambhavi Tiwari, Advocate holding brief of Sri Chandan Sharma, learned counsel for respondent no.1 and perused the record.
(2.) The present petition under Article 227 of Constitution of India has been filed with the prayer that judgment and order dated 22.11.2018 passed by District Judge, Basti in Civil Revision No.61 of 2018 (Jawahar Lal and others Vs. Smt. Kanti Devi and another) A-5 as well as order dated 9.2.2018 passed by Civil Judge (Junior Division), Khalilabad, Basti on application 83-A-2 in Civil Suit No.289 of 2006 A-3 be set-aside and the court below be directed to re-consider the amendment application and decide the civil suit within a stipulated period.
(3.) Learned counsel for petitioners submitted that petitioners filed Civil Suit No.289 of 2006 in the Court of Civil Judge (Junior Division), Khalilabad against respondents for obtaining a decree for cancellation of gift deed dated 14.8.2001; that petitioners, the plaintiffs of Civil Suit No.289 of 2006 were cousin brothers of defendant-respondent no.1 Smt. Kanti Devi, who is daughter of defendant-respondent no.2 Smt. Murati Devi, deceased the Chachi of plaintiffs-petitioners; that defendant-respondent no.2 was having love and affection towards plaintiffs-petitioners and by way of family settlement (not on record) she agreed to not to transfer her property by way of sale-deed, gift-deed or will deed to any other person except the plaintiffs and on the basis of above family settlement names of plaintiffs-petitioners were mutated in revenue records; that on getting knowledge of the gift deed allegedly executed by defendant-respondent no.2 Smt. Murati in favour of defendant-respondent no.1 Smt. Kanti Devi, the plaintiffs-petitioners filed Civil Suit No.289 of 2006 for cancellation of gift deed dated 14.8.2001 as Smt. Murati Devi had no right to execute gift deed in view of family settlement between her and plaintiffs-petitioners; that during pendency of suit defendant-respondent no.2 Smt. Murati died and in plaint word "deceased" was added against her name vide order dated 19.1.2013 on amendment application of plaintiffs-petitioners; that on 18.12.2017 petitioners-plaintiffs moved application 83-A for amendment of plaint and for addition of Relief-B for cancellation of will-deed dated 14.8.2001 allegedly executed by defendant-respondent no.2 Smt. Murati in favour of defendant-respondent no.1 Smt. Kanti Devi; that since at the time of institution of Civil Suit No.289 of 2006 Smt. Murati was alive, relief for cancellation of will deed dated 14.8.20001 could not have been sought in her life time and after her death in the year 2010 when requisite amendment were sought in the plaint regarding her death, the amendment for adding relief for cancellation of will deed could not be prayed due to mistake by earlier counsel for plaintiffs-petitioners; that learned trial court acted wrongly in rejecting amendment application of plaintiffs-petitioners vide order dated 9.2.2018 and learned District Judge also committed mistake in dismissing civil revision filed by plaintiffs-petitioners, vide impugned order dated 22.11.2018; that two orders are liable to be set-aside and matter is required to be remanded back to trial court for afresh disposal of amendment application.;