- (1.) THIS writ petition has been preferred under Article 227 of the Constitution of India against an order passed by learned Munsif -I, Dhanbad in Title Suit No. 86 of 2005, below an application preferred by the original plaintiffs under Order VI Rule 17 of the Code of Civil Procedure to be read with Section 151 thereof, whereby an amendment application, preferred by the original plaintiffs has been rejected and therefore, original plaintiffs have preferred this writ petition.
(2.) LEARNED counsel for the petitioners submitted that notice has already been served to respondent no. 1, whereas respondent nos 2 and 3 have not accepted the service of notice, issued by this Court and to that effect, an affidavit is filed before this Court. It is also submitted by the learned counsel for the petitioners that Title Suit No. 86 of 2005, was instituted by the petitioners, wherein, by mistake it was not mentioned that Mohan Mahto and others had presented a suit for declaration of title and recovery of Khas possession against Amendra Kumar Roy Choudhary over plot nos. 81B and 82B under Khata No. 7 of an area of 15 Kathas before the Munsif -I, Dhanbad vide Title Suit No. 182 of 1960 and in the above suit, parties have compromised and the suit was decreed in terms of compromise and Mohan Mahto and others, who were the original plaintiffs have relinquished their right, upon the property in question and thus, the suit property referred in Title Suit No. 182 of 1960 is also with the suit property of Title Suit No. 86 of 2005. It is also submitted by the learned counsel for the original plaintiffs that the decree of compromise was not, thereafter, fulfilled by the defendants of Title Suit No. 182 of 1960 and the said defendants, namely Amendra Kumar Roy Choudhary respect of the scheduled land of decree and also not mutated his name in the revenue record and this is how the portion of the decree has become non est and thus, the predecessors in title of the original defendants cannot become the owner of the property and therefore, they cannot pass a better title than what they are having. In fact, the said Amendra Kumar Roy Choudhary sold the property to Bhuneshwari Roy Choudhary and Bhuneshwari Roy Choudhary sold the property to Dharmendra Kumar Choudhary and Dharmendra Kumar Choudhary sold the property to mother and aunts of defendant no. 1, who has stated hereinabove, a compromised decree in Title Suit No. 182 of 1960, was a conditional one and thus, conditions were not fulfilled by the original defendants of the said Title Suit No. 182 of 1960 and therefore, the predecessor in title of defendant no. 1 had no title in the eyes of law. This aspect of the matter was left out in the original plaint filed by the original plaintiffs in Title Suit No. 86 of 2005 and therefore, an application under Order VI Rule 17 of the Code of Civil Procedure was preferred. This aspect of the matter has not been properly appreciated by the trial court.
(3.) THE trial court has committed an error in appreciating the merits of the amendment, which is not permissible in the eyes of law. Merits of the amendment should be considered at the time of final hearing of the suit. Prima facie, looking to the amendment, it is very much relevant for arriving at a correct decision of the dispute between the parties to the suit. The whole attempt of the original plaintiffs in Title Suit No. 86 of 2005 is to point out to the trial court that the original predecessor in title of the defendant no. 1, who is one Amendra Kumar Roy Choudhary has no right, title and interest upon the suit property. His name was never mutated in revenue record. This attempt on the part of the respondent -plaintiffs has not been properly appreciated by the trial court and has unnecessarily entered into the merits of the amendment itself.;