SHREE CHANDRASHEKHAR,J. - (1.) Aggrieved of order dated 02.04.2009, passed in Title Suit No.16 of 2004 by which an application for amendment in the plaint has been allowed, the petitioners have approached this Court.
(2.) Title Suit No.16 of 2004 was instituted by Prayag Mahto and others for a decree of declaration of their right, title and interest over schedule 'A' land and for declaration of their possession over the said land. A decree of khas possession if the plaintiffs are found dispossessed during pendency of the suit was also sought. The settlement through Parcha in favour of defendant nos. 3 to 10 has also been challenged. The plaintiffs have claimed that they are in possession of the suit land which is a raiyati land in village Chhotki Dhamrai and in other adjoining villages. They have claimed khas possession over land comprised in Khata No. 37, Plot Nos.1833, 739 and several other plots. They have pleaded that initially in the year 1953 Damodar Valley Corporation settled 4.67 acres land in the name of Jhari Mahto and others. This land they have claimed is situated over C.S. Khata No. 37, DVC Khata No. 12, C.S. Plot No. 662, DVC Plot No. 1853 and various other lands as enumerated in paragraph nos. 3 and 4 of the plaint. The defendants contested the suit by pleading that they are in possession of the suit land (Para-4) and the plaintiffs never cultivated nor grew paddy on the said land. Horil Gope, Ishwar Yadav, Chhotu Gope etc. are not Bataidar and out of 15 persons 12 have, in fact, executed an agreement on 19.02.2004 stating that they have no concern with the land comprised in Khata No.37 and the said land does not belong to DVC. The defendants took a plea that boundary of the suit schedule land has not been disclosed and, in fact, whatever has been stated is not correct (Para-5). Assertions in paragraph nos. 3 and 4 of the plaint have been specifically denied. The defendants have disputed the claim of the plaintiffs and claimed that settlees have right, title and cultivating peaceful possession over the land, which have been mutated in their name and they have been paying rent. In the pending suit when it was posted for argument, though the petitioners have claimed that argument in Title Suit No.16 of 2004 was closed, however, they have not corroborated this fact by producing any document, that is, proceeding in Title Suit No.16 of 2004, an application for amendment dated 17.09.2008 was filed for amendment in the plaint for deleting and substituting description of lands in schedule 'A' to the plaint by schedule 'A' and 'B' lands and schedule 'C' (gene-ology of settlees). This application has been allowed by the trial Judge.
(3.) Mr. Deepak Kumar Bharati, the learned counsel for the petitioners submits that after the defendants raised a specific objection in their written statement, disputing right, title and interest of the plaintiffs over land comprised in Khata No. 37, Plot Nos. 731 and 1833 and both the parties led evidence during the trial, amendment in the schedule of properties would amount to changing the nature of the suit by pleading new facts which were not initially incorporated in the plaint. The contention raised on behalf of the petitioners is that bar under proviso to Order VI Rule 17 CPC was not considered by the trial Judge and after the trial focused on the claim of the plaintiffs in respect of land comprised under Khata No. 37, Plot No. 731 and 1833, the plaintiffs cannot be permitted to withdraw the stand taken in the plaint. The learned counsel for the petitioners has referred to orders passed in W.P.(C) No. 1337 of 2014, W.P.(C) No. 2468 of 2012 and W.P.(C) No. 2530 of 2015.;