- (1.) The plaintiff -petitioner has moved this Court under Article 227 of the Constitution of India for quashing of the order dated 12.12.2007 passed by learned Munsif -II, Dhanbad in Title Suit No. 171 of 2005 whereby the amendment petition filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure (in short "the Code"), has been rejected.
(2.) The relevant facts of the case as pleaded by the plaintiff - petitioner in the plaint, in short, is that Chakbandi Plot no. 1253 appertaining to Chakbandi Khata no. 194 having an area of 41 decimals and Chakbandi Plot no. 1254 appertaining to Chakbandi Khata no. 187 area 6 decimals originally recorded in the name of Bhikni Mandalani -mother of the defendants. The aforesaid two plots were lying adjacent to each other but the plot no. 1254 being adjacent to the main road was more valuable than the plot no. 1253. The mother of the plaintiff namely Deoki Devi purchased 7 decimals out of 41 decimals of the Chakbandi Plot no. 1253 and 4 decimals out of total area of 6 decimals of Chakbandi Plot no. 1254 i.e. in total 11 decimals from Bhikani Mandalani - the mother of the defendants, by the registered sale deed dated 26.06.1966 from the southern side of those two plots and the said 11 decimals of land constituted one block of land and since then Deoki Devi continued to be in possession, the details of which is given in Schedule ,,A of the plaint. The said Deoki Devi after purchase constructed the boundary wall and a house over the said plot and she as well as her successors - in -interest including the plaintiff and proforma defendants have been continuing in possession.
(3.) The further pleading is that the mother of the defendants Bhikani Mandalani by another sale deed dated 06.10.1967 transferred the remaining portion of 2 decimals of plot no. 1254 being the northern side of the said plot and 3 decimals of plot no. 1253 to one Rajmati Devi but the said Rajmati Devi in connivance with the defendants encroached upon a portion of Schedule ,,A land from northern extreme and the said Rajmati Devi claimed the encroached portion of Schedule ,,A land as part of her land. In T.S. No. 92 of 1970, the illegal encroachment by Rajmati Devi was exposed after the report of the Survey Knowing Pleader Commissioner and, thereafter, the said Rajmati Devi sold the land, which she had purchased by registered deed dated 01.12.1978 to Deoki Devi - the mother of the plaintiff and in this way, Deoki Devi came in possession of the entire land of Rajmati Devi but the defendants, who are the sons of Bhikani Mandalani, had always their greedy eyes on the southern portion of plot no. 1254 and forcibly encroached upon the lands, the details of which is given in Schedule ,,B and erected makeshift shed on the encroached portion. Whereafter, the present suit was filed with prayer for declaration of title of the plaintiff as well as the proforma defendants over the Schedule ,,B land as mentioned at the foot of the plaint and for recovery of possession after removing the illegal constructions thereon.;