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2014 DIGILAW 158 (PAT)

Jugeshwar Singh v. Krishna Kumar Singh

2014-01-31

MUNGESHWAR SAHOO

body2014
ORDER 1. Heard learned counsel Mr. Nagendra Rai appearing on behalf of the defendants-petitioners and learned counsel Mr. Vijay Kumar Srivastava appearing on behalf of the plaintiffs-respondents. 2. By the impugned order dated 09.12.2011 passed by the Subordinate Judge-VIII, Chapra in Partition Suit No. 85 of 1999 the court below has rejected the amendment application filed by the defendants-petitioners praying for amendment in the schedule of the written statement for making correction in the plot number and area. 3. The learned counsel for the petitioners submitted that the court below wrongly presumed that the admission made by the defendants in the written statement is being withdrawn by the amendment. According to the learned counsel, the plaintiffs-respondents filed the suit for partition. The defendants filed written statement alleging that in fact there had already been partition between the parties and in that partition Schedule-I was allotted in the takhta of the plaintiffs and Schedule-II was allotted in the takhta of the defendants but because of some mistake the plot number and area have been wrongly typed in Schedule-I and Schedule-II, therefore, it was necessary to make correction in the schedule. The defendants are not withdrawing any admission made in favour of the plaintiffs. 4. On the other hand, the learned counsel for the respondents submitted that in fact witnesses have already been examined in support of the schedule mentioned in the written statement and now after examination of many witnesses the defendants-petitioners are trying to change the plot number and area in the schedule, therefore, the court below has rightly rejected the said application. 5. Admittedly Partition Suit No. 85 of 1999 has been filed by the plaintiffs-respondents. According to the plaintiffs, there has been no partition between the parties with regard to the suit property. On the other hand, the defendants filed the written statement alleging that there had already been previous partition between the parties. In such circumstances, the real question in controversy is whether there had been partition between the parties or no partition with respect to the suit property. By amendment sought to be made in the schedule of the written statement, the defendants are not withdrawing any admission made in the written statement, which is in favour of the plaintiffs. Their only case is that there is some mistake in the schedule regarding plot number and area. By amendment sought to be made in the schedule of the written statement, the defendants are not withdrawing any admission made in the written statement, which is in favour of the plaintiffs. Their only case is that there is some mistake in the schedule regarding plot number and area. It is not the case of the plaintiffs that they admitted the fact that Schedule-I was in fact allotted in their favour or Schedule-II was allotted in favour of the defendants. In such circumstances, there is no question of withdrawal of any categorical admission in the written statement arises. 6. In view of the above facts and circumstances of the case, the learned court below has wrongly presumed that the defendants are withdrawing any categorical admission made in the written statement. 7. In the result, the learned court below wrongly not exercised the jurisdiction vested in it by law. Accordingly, this writ application is allowed. The impugned order is set aside and the amendment application filed by the defendants-petitioners is allowed.