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2014 DIGILAW 16 (PAT)

Yoginder Yadav v. Bagar Yadav

2014-01-03

MUNGESHWAR SAHOO

body2014
ORAL ORDER 1. Heard learned counsel Mr. Amrendra Nath Verma appearing on behalf of the plaintiff-petitioner. In spite of service of notice, nobody appeared on behalf of the respondents. 2. This application, under Article 227 of the Constitution of India, has been filed by the plaintiff-petitioner against the order dated 23.05.2011 passed by the learned Second Additional District Judge, West Champaran at Bettiah in Title Appeal No.57 of 2009 whereby the learned court below allowed the amendment at the appellate stage on the ground that it is typing mistake and the nature of the suit will not change. 3. The learned counsel for the petitioner submitted that in paragraph-7 of the written statement the defendants clearly admitted the fact that the plaintiff is the son of Cheri Devi, who was the daughter of Dharichhan Raut. In other paragraphs of the written statement also it is specifically admitted by the defendants that Cheri Devi was the daughter of Dharichhan Raut. In the evidence also defendant no.1, who was examined as DW 3, has categorically admitted at paragraph 11 that Cheri Devi was the daughter of Dharichhan Raut. After considering the pleading in the written statement and the evidences, the trial court decreed the plaintiff’s suit but in the appellate stage the defendants filed an application for amendment and they sought the relief to delete the admission made in paragraph 7 of the written statement and tried to add the fact to the effect that Dharichhan Raut died leaving behind his second widow Sarali Devi only. According to the learned counsel, categorical admission made by the defendant in the written statement could not have been allowed to be withdrawn and a new fact would not have been allowed to be brought in the pleading by way of amendment by the appellate court and now at this stage if the impugned order is allowed to be stood then on this ground alone the matter will be remanded to the trial court for a fresh decision. 4. It appears that Title Suit No.114 of 2002 was filed by the plaintiff-petitioner for declaration of title with respect to the suit property alleging that he is the son of Cheri Devi and the property belonged to Dharichhan Raut. 4. It appears that Title Suit No.114 of 2002 was filed by the plaintiff-petitioner for declaration of title with respect to the suit property alleging that he is the son of Cheri Devi and the property belonged to Dharichhan Raut. On the death of Dharichhan Raut his only daughter Cheri Devi came in possession of the suit property and after death, the petitioner is coming in possession of the same. At paragraph 7 of the written statement the defendants-respondents categorically admitted this fact that Dharichhan Raut died leaving behind only one daughter Cheri Devi as legal heir and after his death Cheri Devi came in exclusive possession over the property left by her father as a rightful owner and title holder. 5. From perusal of the amendment application, which has been annexed with this writ application, it appears that the proposed amendment no.(i) is to the effect that the last sentence of paragraph 7 was sought to be deleted and in its place the defendants prayed for addition of the following sentence: “Dharichhan Raut died leaving behind his widow Most. Sarali as sole surviving legal heir and Most. Sarali came in possession over the landed property left by Dharichhan Raut.” 6. In the proposed amendment nos.(ii) and (iii) also the plaintiff prayed for amendment by substituting the name of Most. Sarali in place of Cheri Devi. The evidence of DW 3, who was defendant no.1, has been annexed as Annexure-1. From perusal of the said deposition at paragraph 11 of the cross-examination, it appears that he has clearly admitted this fact that Cheri Devi was the daughter of Dharichhan Raut. 7. From perusal of the statement made in paragraph 7 and the amendment sought for by the defendants in the written statement, it appears that the defendants clearly admitted the fact that Cheri Devi was the daughter of Dharichhan Raut, who came in possession of the property after the death of Dharichhan Raut. By way of amendment now the defendants are resiling entirely from the fact which was admitted in paragraph 7 and other paragraphs in the written statement. 8. In the case of Gautam Sarup Vs. Leela Jetly and others, reported in (2008) 7 Supreme Court Cases 85, the Hon’ble Supreme Court has held that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. 8. In the case of Gautam Sarup Vs. Leela Jetly and others, reported in (2008) 7 Supreme Court Cases 85, the Hon’ble Supreme Court has held that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. In the present case as stated above by way of amendment, the defendants tried to resile from the categorical admission made by them in the written statement and on the basis of the pleading, evidences were also adduced by the parties. 9. The trial court also decreed the suit after considering the pleading and evidences, therefore, at the appellate stage the lower appellate court could not have permitted the defendants to amend the written statement as sought for in the amendment application. The lower appellate court has not considered the settled principles of law laid down by the Hon’ble Supreme court, therefore, the impugned order is against the law, as such, the impugned order has been passed by the court below in gross disregard of the settled law causing grave injustice to the plaintiff-petitioner. 10. In the result, this writ application is allowed. The impugned order is set aside. The amendment sought for by the defendants in the written statement is hereby rejected.