M.Y.EQBAL, J. - (1.) Heard the counsel for the parties.
(2.) THE application is directed against the order dated 28.9.2007 passed by the Additional Munsif, Hazaribagh in Title Suit No. 55/99 whereby the petition filed by the plaintiffs under Order VI Rule 17, CPC has been rejected on the ground, inter alia, that the plaintiffs, by way of amendment, sought to resile from the admission made in the plaint. From para 4 of the plaint it is evidently clear that the plaintiffs admitted possession of the defendants so far Schedule B land is concerned. For better appreciation para 4 of the plaint is reproduced hereinbelow:
(3.) THAT so long Jago Sao, the deceased father of the plaintiffs and Fagu Mistry, the deceased father of defendant remained alive, they continued in possession of their respective exchanged land. Meaning thereby, the plaintiffs' father came and continued in possession of the suit land detailed and described in Schedule A of the plaint acquiring, perfecting and confirming of his title over the same and after his death the plaintiffs being his legal heirs and successors came in physical possession thereof and therein by stepping into the shoes of their deceased father and have still been continuing the same uninterruptedly. Alike the plaintiffs and plaintiffs father the deceased father of the defendants also came in possession and continued in possession of Schedule B land acquiring and confirming his title over it and after the death of Fagu Mistry, the defendants being his legal heirs and successors came in possession of the same and have been continuing the same by stepping into the shoes of their father. 4. By way of amendment the plaintiffs sought to introduce new facts in the plaint. For better appreciation para 3 -A of the amendment petition is quoted herein -below: That it will not be out of place to state that the land of Khata No. 19, plot No. 549 area 28 decimals out of 1 acre 4 decimals, more fully detailed and described in Schedule 'B' of the plaint, was originally the land of the plaintiffs as they got it from their fore -father Bhui Sao. In Khatian, the land of plot No. 549 stands recorded in the joint names of two brothers namely (1) Bhui Sao and (2) Choudhary Sao. In family partition, firstly given effect to in between (1) Bhui Sao and (2) Choudhary Sao, and secondly in between the two sons of Bhyui Sao namely (1) Ram Karan Sao and (2) Jago Sao, fraction of 0.28 decimals of land came in exclusive possession of Jago Sao, the plaintiffs' father. The plaintiffs' father Jago Sao on 5.2.1964 had given the fraction of land of 0.28 decimals to Fagu Mistry, the defendants' father in exchange of the suit land morefully detailed and described in Schedule 'B' of the plaint by virtue of a sada (unregistered) deed of exchange. What happened that, later on Fagu Mistry intended to sell the land to the prospective purchaser Chatter Gope son of Late Ghuran Gope of village Nayakhap tola Makundganj, District Hazaribag. since there was no registered document with Fagu Mistry, the prospective purchaser Chattar Gope insisted to execute the registered deed of conveyance by Jago Sao. Accordingly Jago Sao had on 20.6.1964 executed a registered deed of conveyance bearing. No. 5842 in favour of Chattar Gope of valuable cash consideration of Rs. 400/ - (rupees four hundred). Though Jago Sao had given effect to the registered deed of conveyance, but the payment of consideration money was received by Fagu Mistry. In support of this Chattar Gope had on 20.6.1964 executed a soda paper affixing a revenue stamp of 10 Naya paisa, value on it. The said sada paper was scribed by the deed writer Sri Narsingh Prasad Rana. Chattar Gope is still alive to vouch -safe this fact. From bare perusal of the aforesaid para of the amendment petition it is evidently clear that the plaintiffs seek to withdraw the admission made in the plaint.;