Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1389 (JHR)

Most. Savitri Devi v. Naresh Prasad

2015-11-03

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 07.10.2013 in Title Appeal No. 16 of 2012 whereby, application under Order VI Rule 17 C.P.C. has been rejected, the present writ petition has been filed. 2. The petitioner is one of the plaintiffs in Title Suit No. 173 of 1992. The suit was instituted for a declaration of plaintiffs' right, title, interest and confirmation of their possession over the suit land and for declaring final decree in Partition Suit No. 37 of 1966 as null and void and inoperative. Title Suit No. 173 of 1992 was dismissed vide judgment and order dated 16.07.2002, against which the plaintiffs preferred Title Appeal No. 16 of 2002. In the Title Appeal an application under Order VI Rule 17 C.P.C. was filed for incorporating the following relief:- “In alternative if it is found that the plaintiffs are not in possession of the suit property then they may be put in possession in the same by evicting the defendant and persons claiming through or under them”. 3. The said application has been dismissed on 07.10.2013. Aggrieved, the petitioner has preferred the present writ petition. 4. The learned counsel for the petitioner submits that in Title Suit No. 173 of 1992 the plaintiffs asserted that they are in possession of the suit property however, inadvertently, an alternative relief for delivery of possession if the plaintiffs are not found in possession of the suit property was not sought. It is further submitted that the trial court has recorded a finding that by virtue of sale-deeds the plaintiffs have acquired valid right, title and interest over the suit property however, it dismissed the suit holding that the plaintiffs are not in possession of the suit property. It is thus, contended that in the event the appeal preferred by the plaintiffs is allowed, the plaintiffs may not recover possession of the suit property and therefore, application under Order VII Rule 17 C.P.C. deserved to be allowed. 5. I find that in Title Suit No. 173 of 1992 the plaintiffs asserted that by virtue of various sale-deeds the father of the plaintiff nos. 2 and 3 acquired valid right, title and interest over the suit land and came in possession of the lands. Subsequently, he sold a part of his property to different persons. 5. I find that in Title Suit No. 173 of 1992 the plaintiffs asserted that by virtue of various sale-deeds the father of the plaintiff nos. 2 and 3 acquired valid right, title and interest over the suit land and came in possession of the lands. Subsequently, he sold a part of his property to different persons. The plaintiffs came to know that a decree has been passed with respect to Schedule-A property though they remained in continuous possession over the Schedule-A properties. The defendant nos. 7 to 11 in Title Suit No. 173 of 1992 were the subsequent purchasers. It is not in dispute that Execution Case No. 8 of 1992 was instituted for execution of the decree in Partition Suit No. 37 of 1966 in which the plaintiffs filed an application resisting the delivery of possession however, the said petition was dismissed on 05.08.1992. Thereafter, on the allegation that the defendants threatened the plaintiffs to dispossess them from the suit land, Title Suit No. 173 of 1992 was instituted on 03.09.1992. The learned counsel for the petitioner submits that the writ for delivery of possession was issued subsequently and the possession was delivered on 21.02.1993 and thus, when the suit was instituted the plaintiffs were in possession over the suit land. I am of the opinion that on this plea, the application under Order VI Rule 17 C.P.C. cannot be allowed at the appellate stage. The plaintiffs had knowledge of judgment and decree in Partition Suit No. 37 of 1966 and though the delivery of possession was effected after institution of the suit, the plaintiffs were required to move application for amendment immediately thereafter. After a full-fledged trial when the trial court recorded a finding that the plaintiffs were not in possession, at the appellate stage the plaintiffs filed application for amendment which, in my opinion, has rightly been dismissed. Except pleading inadvertence, the plaintiffs have failed to disclose a reason for not moving application for amendment during the pendency of Title Suit No. 173 of 1992. The trial court has noticed that though, Title Suit No. 173 of 1992 was dismissed in the year, 2002 and Title Appeal was preferred in the same year, the application for amendment was filed about 21 years thereafter. 6. Considering the aforesaid facts, I find no merit in the writ petition and accordingly, it is dismissed.