Shree Chandrashekhar, J. - (1.) The petitioners were substituted in place of the plaintiff who had instituted Title Suit No. 115 of 2010 for a decree for declaration that sale deeds dated 31.08.2010, 01.09.2010, 08.09.2010 and 09.09.2010 are void, ab-initio, illegal and therefore, liable to be cancelled and for a declaration that the defendant nos. 1 to 6 have not acquired any title over the properties comprised under the aforesaid sale-deeds.
(2.) The suit was dismissed. Aggrieved, the original plaintiff preferred Title Appeal No. 14 of 2015. In the pending appeal, the petitioners filed an application for amendment in paragraph no. 17 of the plaint on the ground that there was inconsistent statements made in the plaint such as; there was no previous partition by metes and bounds and at the same time it was asserted that there was amicable settlement between the family members. This application has been dismissed by the trial judge by the impugned order dated 04.08.2017.
(3.) The fundamental test when amendment in the pleadings can be permitted is whether the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties. This requirement in law has been incorporated under Order VI Rule 17 CPC itself. By the Code of Civil Procedure Amendment Act, 1999 a limitation on the powers of the Court has been incorporated under Rule 17 CPC by adding a proviso therein. It provides that parties shall not be permitted to amend their pleadings after trial in the suit has commenced, however, there is an exception to the aforesaid limitation under proviso to Rule 17 CPC. If a party to the suit satisfies the Court that inspite of due diligence the matter could not have been raised before commencement of the trial, amendment in the pleadings can be permitted. This is not the case pleaded by the petitioners. The case set-up by the petitioners is that to clarify a somewhat ambiguous statement made in paragraph no. 17, they intended to add a new paragraph below paragraph no. 17, which reads as under : (i) From paragraph no. 17 of the plaint, the statement "there has been no partition by metes and bounds in between the sons of Ramdeo Mistry but" be removed. (ii) After Paragraph No. 17 of the plaint, a new Paragraph No. 17(a) be inserted with the following expression - "17(a) That Ramdeo Mistry was owning and possessing 0.95 acre of land in plot no. 240 under Khata No. 37, 0.39 acre in Plot No. 34/1136 under Khata No. 65 (Total 0.50 acre was purchased in this plot but only 0.39 acre remained in possession of Ramdeo Mistry), 0.91 acre in Plot No. 34/1127 under Khata No. 56/2, 0.21 acre in Plot No. 34/D under Khata No. 45, 0.23 acre in Plot No. 98 under Khata No. 05, 0.21 acre in Plot No. 234 under Khata No. 37 of village Khanwa. In aforesaid land of Ramdeo Mistry, his ancestral purchased and acquired through settlement is included. In partition between the sons of Ramdeo Mistry, the plaintiff was allotted 0.40 acre in Plot No. 240 under Khata No. 37 bounded as North-Rasta, South-Pachu Singh, East-Bhola Mistry and West-Sabeshar Mahto and 0.56 acre in Plot No. 34 under Khata No. 56 bounded as North:School and Pachu Mistry, South:Bhola Mistry, East-Road and West-Lakhan Mistry of village Khanwa. On the basis of Takhta allotted to him he acquired all sorts of title and possession over the same and the defendant Nos. 7 and 8 had executed the sale deeds in favour of their respective sons with respect of the portion of the allotted land of the plaintiff which did not convey any title and possession to them.";