M.Y.EQBAL, J. - (1.) THIS application by the defendants -petitioners under Article 227 of the Constitution of India is directed against the order dated 5.2.2007 passed by Sub -Judge -II, Daltonganj at Palamu in Partition Suit No. 29 of 1997 whereby the prayer for amendment of the written statement has been rejected.
(2.) PLAINTIFF -respondent No. 1 filed the aforementioned Partition Suit No. 29 of 1997 against the defendants for decree of 1/6th share in the suit property. The defendants contested the suit by filing written statement. After closure of the evidence, defendant Nos. 6 and 7 (petitioners herein) filed application purported to be under Order VI, Rule 17, CPC stating, inter alia, that due to bona fide mistake, some incorrect facts have been stated in para 3 of the written statement not supported with the documents. It was, therefore, necessary to incorporate the correct facts. The said prayer was rejected by the Court below. I have heard Mr. V. Shivnath, learned senior Counsel appearing for the petitioners, and the learned Counsel for the respondents.
(3.) THE case of the petitioners -defendant Nos. 6 and 7 in paragraph 3 of the written statement was that both the brothers inherited the property of their 'NANA' of village Ranka Kala under Khata No. 283 area 11. 58 acres and under Khata No. 233 area 0.08 acres and Gulab Pandey and sons of Banwari Pandey are in peaceful possession over the half of the property, but the same has not been included in the present partition suit. Accordingly, suit for partition over the partial lands without the permission of the Court cannot be allowed to be continued. By way of amendment, the said defendants wanted to introduce a new fact which reads as under: That the land of Khata No. 283 of village -Ranka Kala was recorded in the name of mosomat Ramkali Kuer wife of Sukhraj Ojha in the last survey and settlement operation who in exercise of her legal right gifted the same through unregistered deed of gift dated 23.3.1936 in favour of Banwari Pandey son of Gobardhan Pandey. Since the property covered through the deed of gift dated 23.3.1936 had no value for more than Rupees Hundred, therefore, it remained unregistered and on the basis thereof the donee Banwari Pandey and on his death his sons and daughters have/had been exercising their title and possession over the same. It is relevant to state at this stage that Most. Ram Kali Kuer had no male issue and she had a daughter only who was the mother of Banwari Pandey. Thus, the deed of gift as relied and produced either by the plaintiff or his supporting defendants said to be executed by alleged daughter -in -law is fraudulent, illegal and void ab initio as ram Kali Kuer had no son, therefore, the question of becoming daughter -in -law to her does not arise. From bare perusal of the facts said to be introduced by way of amendment in the written statement is totally a new fact, for which defendant filed application for the closure of the evidence. In my opinion, therefore, the Court below has rightly rejected the amendment petition filed by the defendants -petitioners. ;