Draupadi Devi, W/o Late Bindheshwar Pandey v. Ahiliya Devi, W/o Sri Sahdeo Pandey
2016-04-22
SHREE CHANDRASHEKHAR
body2016
DigiLaw.ai
ORDER : Shree Chandrashekhar, J. Aggrieved by order dated 07.02.2014 in Title Suit No. 05 of 1996 whereby, application dated 05.09.2013 under Order 6, Rule 17 CPC seeking amendment in the plaint has been allowed, the present writ petition has been filed. 2. The petitioners are defendant nos. 1 to 3 in Title Suit No. 05 of 1996. The suit was instituted for a declaration that the Revenue Officers have no right or authority to cancel or reverse order of mutation and demand opened in usual course and that orders passed by Circle Officer, Tandwa and Land Reforms Deputy Collector, Chatra are illegal, void and not maintainable in law. The case pleaded by the plaintiffs was that Baldev Pandey and Bhagirath Pandey received 1/3rd and 2/3rd shares respectively in the land and properties of Govind Ram Pandey. In the year, 1985 Baldeo Pandey executed a registered deed dated 11.04.1985 for sale of 5 acres and 45-1/4 decimal land in khata no. 42, 7-2/3 decimal in khata no. 266 and 58 decimal land in khata no. 328, total area about 6 acres 11 decimals for a sum of Rs. 7,000/- in favour of the plaintiffs and the plaintiffs came in possession over the said land which is Schedule-A land. On the application of the plaintiffs, Circle Officer, Tandwa allowed mutation in their name vide order dated 22.11.1990 in Mutation Case No. 520 of 1990-91. It was further pleaded that Draupadi Devi-defendant no. 1 had also filed an application for mutation in her name asserting that she and her husband were living in the house of Baldev Pandey as ghar jamai and they were serving Baldev Pandey in his old age. It was claimed that Baldev Pandey executed a Deed of Gift in her favour however, the application for mutation was dismissed against which defendant no. 1 filed appeal in the court of Land Reform Deputy Collector, Chatra where she claimed right over the land by inheritance. The appeal was allowed and the matter was remanded before the Circle Officer. On remand, the Circle Officer instituted Case No. 236 of 1985-86 in which ignoring the earlier order for mutation in the name of plaintiffs, ordered mutation in the name of defendant no. 1 for half share.
The appeal was allowed and the matter was remanded before the Circle Officer. On remand, the Circle Officer instituted Case No. 236 of 1985-86 in which ignoring the earlier order for mutation in the name of plaintiffs, ordered mutation in the name of defendant no. 1 for half share. During the pendency of the title suit, as noticed above the application dated 05.09.2013 under Order 6, Rule 17 CPC was filed which has been allowed vide order dated 07.02.2014. 3. Heard the learned counsel for the parties and perused the documents on record. 4. Mr. Sudhir Kumar Sharma, the learned counsel for the petitioners submits that by permitting amendment in the schedule of the properties annexed to the plaint, the trial court has in fact amended the sale deed through which the plaintiffs have claimed right, title and interest over the Schedule-A properties. It is further submitted that after the plaintiffs started examining their witnesses, the belated amendment application, could not have been allowed. 5. As against the above, the learned counsel for the respondents submits that the amendment in the schedule of the property is by way of elaboration only and neither the extent nor the descriptions of the suit schedule property have been changed. It is contended that for proper identification of the suit schedule properties the amendment was sought which has rightly been allowed by the trial court. 6. A bare perusal of the Schedule-A discloses the description of the properties situated in village-Raham, PS-Tandwa in District-Chatra. Schedule-A mentions khata number, plot number and area of the properties, ad-measuring about 6.11 acres over which the plaintiffs have laid a claim by virtue of sale deeds. Copies of sale deeds have also been brought on record and I find that the sale deeds also disclose similar particulars of the land purchased by the plaintiffs. 7. "Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. and Others" reported in (2007) 13 SCC 421 , was a case in which the schedule to the plaint did not mention khatian number. The defendants did not filed written statement however, he examined himself as a witness. Suit was decreed and thereafter, an application for amendment of the plaint and the decree containing the Schedule describing the property was filed. The Hon'ble Supreme Court held as under : 25.
The defendants did not filed written statement however, he examined himself as a witness. Suit was decreed and thereafter, an application for amendment of the plaint and the decree containing the Schedule describing the property was filed. The Hon'ble Supreme Court held as under : 25. "It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule were missing, the same by itself would not be a ground to interfere with the impugned order." 8. In the present case, the defendants did not raise an objection as to identification of the suit schedule properties in their written statement. Only after amendment application dated 05.09.2013 was filed, they took a plea that if the proposed amendment is allowed it would amount to amending the sale-deeds. In support of application filed under Order 6, Rule 17 CPC the plaintiffs have taken a plea that due to inadvertence of the typist complete boundaries of the suit Schedule properties were not mentioned. The trial court found that the amendment would not change the nature of the suit. 9. Considering the aforesaid facts, I am of the opinion that the objection raised by the defendants were not sustainable and the trial court has rightly rejected the same.
The trial court found that the amendment would not change the nature of the suit. 9. Considering the aforesaid facts, I am of the opinion that the objection raised by the defendants were not sustainable and the trial court has rightly rejected the same. Once it is found that the extent and the identification of the suit schedule properties have been specifically mentioned in the schedule to the plaint, incorporation of boundaries thereof, would not cause prejudice to the defendants. In fact, the defendants themselves have also laid claim over the suit property and they have rightly not disputed the description of the suit schedule properties in the written statement. The learned counsel for the parties inform that the defendants have also examined as many as 4 witnesses. 10. In the result, I find no merit in the writ petition and accordingly, it is dismissed. 11. Interim order dated 18.08.2015 stands vacated. 12. A copy of the order be transmitted to the trial court through FAX, forthwith. Petition dismissed.