S. Chandrashekhar, J. - (1.) AGGRIEVED by order dated 30.04.2015 in Partition Suit No. 107 of 2006, the present writ petition has been filed.
(2.) THE petitioners are plaintiffs who instituted Partition Suit No. 107 of 2006 claiming 2/9 share in the suit property described in Schedule -A to the plaint and for a declaration that the sale deeds mentioned in paragraph No. 25(c) of the plaint and judgment and decree in Title Suit No. 346 of 1961 are null and void and not binding on the plaintiffs. The defendant Nos. 30, 31 and 34 appeared in the Partition Suit and filed written statement resisting the claim of the plaintiffs on the ground that one Chutar Kahar had filed Title Suit No. 61 of 1940 against Jalo Mian and the suit was dismissed on 21.12.1940. Title and possession over the Dar Raiyat Khata No. 10 in favour of Rajab Jolha stood confirmed. The learned counsel for the petitioners submits that, in the written statement of defendant Nos. 30, 31 and 34 new facts were disclosed and therefore, the plaintiffs filed application under Order VI Rule 17 C.P.C. r/w Section 151 C.P.C. for amendment in the plaint which has wrongly been dismissed by the Trial Judge. Relying on decision in "Ram Sahai Vs. Ramanad and Others", (2004) 13 SCC 40, the learned counsel for the petitioners submits that, in view of new facts disclosed in the written statement, the plaintiffs must be permitted to carry amendment in the plaint. A perusal of plaint in P.S. No. 107 of 2006 discloses that the defendant Nos. 11 to 17 are claiming right, title and interest over a part of suit schedule property through registered sale deed executed in favour of their father and grand father. The plaintiffs asserted that the sale deeds are forged and fabricated. It is averred that after vesting of Jamindari in the State of Bihar, the land was mutated in the name of Dwarika Ram however, due to mistake name of Narsingh Ram was entered in Register -II. After the death of Narsingh Ram his widow namely, Manwa Devi executed sale deed dated 12.03.1940 in favour of Samundari Devi. After the death of Dwarika Ram on 15.02.1982 his legal heirs jointly inherited item No. I land in Schedule -A and they are in possession. The Schedule -A land is a joint family property in which the defendant Nos. 1 to 10 refused to give share to the plaintiffs. It is further disclosed that defendant No. 12 has taken a plea that 0.07 acre land in Plot No. 180 under Khata No. 25 has been converted into chhaparbandi lease. The plaintiffs have asserted that compromise decree in Title Suit No. 346 of 1961 was a collusive decree obtained by playing fraud. The defendant Nos. 30, 31 and 34 filed written statement asserting that the recorded tenant of Khata No. 25, Village Khirgaon was Chutar Kahar who filed Title Suit No. 61 of 1940 against Jalo Mian. The suit was dismissed and thus title and possession over the Raiyati Khata No. 10 stood in favour of Rajab Jolha. The land in Plot No. 1061 was sold by Chhedi Mian by registered sale deed dated 11.01.1966 and thereafter, the said land was further transferred to several other persons in the year, 1972, 1974, 1979, 1984, 1988, 1996 and lastly on 30.10.1996 in favour of Yudhisthir Prasad Singh -defendant No. 30. Similarly, part of land was transferred by Kirti Narayan Singh and Urmila Devi to other persons through registered sale deeds. The defendants have asserted that they have constructed pucca building over the said land and they are residing there with their family. The plaintiffs filed application dated 26.03.2014 for incorporating the following amendments: (a) "That in title page of the plaint in column of Defendants, the following names and addresses be added as defendant Nos. 38 to 42 (I) Manju Devi w/o Ydhisthir Prasad Singh (II) Babita Devi w/o Shankar Pandey (III) Shankar Pandey s/o Swaroop Narain Pandey (IV) Laxmi Pandey w/o Arun Kumar Pandey (v) Kiran Pandey w/o Bijay Kumar Pandey, all residents of T.V. Tower Road, near Ram Krishna Shanti Ashram P.O./P.S./District Hazaribag (b) That in the Title Page of the plaint in the column of Defendants' name, in Serial Number 32, the name "Lalita Pandey" be omitted and in that place, the name Lilawati Pandey may kindly be added, similarly in Serial No. 33 the name "Laxmi Devi" be omitted and in that place the name "Saraswati Devi" may kindly be added. (c) That in Title page of the plaint in Para 20(c) after the last line of sentence "and not binding to the plaintiffs, the following sentence/stated herebelow be added in para 20 (c) - Further Ghutar Kahar had not filed Title suit bearing No. 61/1940 against Rajab Jolha or any other person relating to the Khata No. 25 and Dar -raiyati khata No. 10. Rajab Jolha in planned way, by playing fraud, by standing fake person filed the suit and cameable to get the Judgment Decree in Title suit No. 61/1940 with intention to dispossess the heirs of Ghutar Kahar from the suit land on the basis of illegal Judgment and Decree. It is submitted that plaintiffs got the knowledge first time from the written statement of the Defendant Nos. 30, 31 and 34. (d) That in title page of the Plaint after Para 20(c) the following para be added as newly added Para 20(c) - "That the illegal transaction made by the various persons and by playing fraud executed deed of sale relating to Plot No. 1061 under Khata No. 25 is void ab initio and not binding to the plaintiffs, as such the Registered deed and deeds be declared null and void ab initio and not binding to the plaintiffs." (e) That in title Page of the plaint, in Para 25 and in the Relief "(d)", after the word "For that the Judgment and Decree" and before the word "Title suit No." the following word/figure "Title Suit No. 61/1940 and "may kindly be added."
(3.) IN so far as, amendments in para Nos. (a) and (b) are concerned, the defendants did not raise objection and accordingly, the trial court permitted the plaintiffs to incorporate those amendments. However, in so far as, amendments at para Nos. (c) to (e) are concerned, the defendants raised objection that the plaintiffs are seeking to incorporate new facts which are not consistent with the facts disclosed in the plaint. The Trial Judge held that the proposed amendments at para Nos. (c) to (e) in application dated 26.03.2014 would change the nature of the case and therefore, cannot be permitted. In the application dated 26.03.2014 the plaintiffs have merely stated that the proposed amendments are formal in nature and these are based on subsequent event. The learned counsel for the petitioners submits that, "subsequent event" was filing of written statement by defendant Nos. 30, 31 and 34 in which new facts were disclosed by them. I am of the opinion that the defence pleaded in written statement cannot be a ground for seeking amendment. The proposed amendments in paragraph Nos. (c) to (e) are not formal in nature. In "Ram Sahai case" the defendants had disclosed description of certain more properties which were permitted to be incorporated by way of amendment. In a partition suit the entire joint family property should form part of the suit schedule property and when the defendants themselves disclosed certain more property, and the plaintiffs sought permission of the court to incorporate those properties in the suit land, the same could not have been declined.;