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2004 DIGILAW 1061 (JHR)

Paras Nath Upadhyay v. Parvati Devi

2004-11-03

M.Y.EQBAL

body2004
ORDER M.Y. Eqbal, J. 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 27.8.2003 passed by Subordinate Judge, IVth, Daltonganj in Partition Suit No. 38/2000 whereby the prayer of the petitioner for amendment of the plaint has been refused. 2. The petitioner, who is the plaintiff, filed partition suit No. 38/2000 in the Court of the Subordinate Judge, Palamau at Daltonganj for a decree of partition of the properties. It was alleged, inter alto that the suit property is the joint family property and there has never been any partition by metes and bounds. It was further alleged that in the year 1950 there was a partition suit being partition suit No. 61/1950 in which the petitioner and the father of defendant Nos. 8 and 9 were the plaintiffs of the said suit. In order to defeat the interest of the plaintiff and his brother, a petition of compromise was filed on behalf of the minors without their knowledge. The said suit was disposed of in terms of the compromise petition on 31.8.1955. 3. The instant suit was contested by the respondents-defendants stating, inter alia, that the suit property has already been partitioned and the parties have been coming in separate possession of the property as per their share in the compromise. 4. The plaintiff-petitioner filed a petition in the instant suit seeking amendment of the plaint by adding relief of declaration that the judgment dated 31.8,1955 passed in partition suit No. 61/50 was the result of fraud and collision and it is a purposive document. The said petition was opposed by the defendants-respondents. 5. I have heard the counsel for the parties. From perusal of the plaint, a copy of which has been annexed as annexure 1 to this writ petition, it is evident that the plaintiff-petitioner was aware about the judgment passed in partition suit No. 61/ 50 and according to him, he was minor at that time. For better appreciation para 6 of the plaint of the instant partition suit No. 38/2000 is reproduced hereinbelow: "That there was a partition suit brought in existence bearing No. 61/1950 at that time this plaintiff and Praduman Upadhaya, the father of deft. 8 and deft. For better appreciation para 6 of the plaint of the instant partition suit No. 38/2000 is reproduced hereinbelow: "That there was a partition suit brought in existence bearing No. 61/1950 at that time this plaintiff and Praduman Upadhaya, the father of deft. 8 and deft. No. 9 were minor who were plaintiffs in the said suit and their mother Sita Kuer wife of Mathura Upadhyay was their natural guardian and next friend and the lands of this suit was the subject matter of a partition in the previous suit, but just after the institution of the said suit their mother, Sita Kuer died during pendency of the suit and no other next friend and guardian was appointed by the Court or by any other persons but all of a sudden said Badri Nath Upadhayay who was defendant No. 1 and Awadhbihari Upadhyay who was defendant No. 2 in the said suit connive together and to defeat the interest of the plaintiff and his brother Praduman Upadhyay who were minors at that time intentionally, motivatedly, collusively and illegally prepared a petition of compromise on behalf of the minors (this plaintiff) and on behalf of his brother Praduman Upadhyay too and without the knowledge of this plaintiff and his brother Praduman Upadhya set up one Achari Pandey who was brother in law (Bahnoi) of Baderi Nath Upadhya and good cultivable lands were shown to be in the takhta of Badri Upadhaya and Awadh Bihari Upadaya and all the rubbish lands (Banjar, Pathrila, rocky and not cultivable lands) were shown in the takhta of this plaintiff and his brother, Parduman Upadhyay and said Achari Pandey, brother-in-law of Badri Upadhyay, was shown to be guardian and next friend of this plaintiff and his brother Praduman Upadhyay who simply signed the petition of compromise illegally motivatedly and collusively but inspite of the order of the Court dated 31.8.1955 for the preparation of decree no decree till today has been prepared and no parties are in possession of their lands shown in the compromise petition. Accordingly the petition of compromise in the said suit was- never acted upon and the parties are still in separate possession over the suit lands." 6. The plaintiff-petitioner has not disclosed his age in 1950 when the suit was filed on is behalf when he was minor. Accordingly the petition of compromise in the said suit was- never acted upon and the parties are still in separate possession over the suit lands." 6. The plaintiff-petitioner has not disclosed his age in 1950 when the suit was filed on is behalf when he was minor. Even assuming that he was a child of 2-3 years, he attained majority in the year 1965-66. Even after attaining majority the plaintiff-petitioner neither challenged the judgment passed in partition suit No. 61/50 nor challenged the compromise decree and it was only after 40-50 years the plaintiff-petitioner filed the present suit seeking a relief for declaration that the judgment passed in partition suit No. 61 /50 was collusive. Such a relief, in my considered opinion by way of amendment in the plaint which is hopelessly barred by limitation, cannot and shall not be allowed. The Court below, therefore, rightly held that the amendment sought for by the plaintiff-petitioner is not in accordance with law. I do not find any illegality in exercise of jurisdiction by the Court below. 7. For the aforesaid reasons, there is no merit in this writ application which is, accordingly. dismissed.