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2017 DIGILAW 426 (JHR)

Nirmal Kumar Shahabadi v. Lalit Kumar Sinha

2017-03-01

APARESH KUMAR SINGH

body2017
ORDER : Heard counsel for the parties. 2. Plaintiff/petitioner herein instituted Title Suit No.22/2006 in the Court of Munsif at Giridih for declaration of his title on the suit land and confirmation of his possession and restraint upon the defendants for making any interference in his possession also seeking permanent injunction at the time of final adjudication. Scheduled land comprises 28 decimals of land out of 20.50 acres of Survey Plot No.289, Khata No.73, Mauza Barmasia, Thana No.230, Giridih comprised in Municipal Holding No.832 of Ward No.3 (old) of Giridih Municipality. Petitioner set up his case on the assertion made in the plaint that his father had acquired a piece of land described in the schedule and was paying rent to the then landlord Shri Shanti Kumar Mishra at a particular annual rent. On 18th June 1953 Shanti Kumar Mishra executed a registered sale deed in respect of all his rights in favour of the plaintiff. However, there was some mistake in the plot number which was wrongly mentioned as 282 instead of 289. At the time of vesting of Zamindari under the Bihar Land Reforms Act, landlord Shanti Kumar Mishra submitted return and sought compensation in Compensation Case No.315/1954-55 wherein at serial no.281 the name of the father of the plaintiff together with Plot No.289, area and rent were correctly mentioned. Plaintiff has been paying rent and municipal taxes. Defendants have illegally asserted claim over the suit land on the basis of two sale deeds in the name of his mother and wife – defendant nos. 2 and 3. The sale deeds produced by the defendants showed Khata No.737/235 which does not include Plot No.289. When the defendant no.4 tried to put up compound wall by use of force with the favour of Police force to take forceful possession over the suit land, petitioner had a cause of action on 25th February 2006 to move the learned court for the instant relief. 3. After written statement were filed by the defendants, plaintiff prayed for an amendment in the plaint through a petition dated 31st May 2006. Plaintiff asserted that some important documents relating to title and possession were misplaced and could not be available when the suit was drafted and presented in the Court. Therefore, plaint requires amendment. 3. After written statement were filed by the defendants, plaintiff prayed for an amendment in the plaint through a petition dated 31st May 2006. Plaintiff asserted that some important documents relating to title and possession were misplaced and could not be available when the suit was drafted and presented in the Court. Therefore, plaint requires amendment. Plaintiff proposed an amendment to incorporate the averments that the suit property is claimed by way of sale deed dated 29th October 1945 by Birijawa, Mossomat Bedani and Lachhamia Kumari in favour of his father. 4. On strong opposition from the defendants and upon consideration of the rival case of the parties, the amendment was declined by the impugned order dated 3rd May 2007 passed by the court of 1st Additional Munsif, Giridih (Annexure-5). 5. Learned counsel for the petitioner in support of the challenge submits that the proposed amendment does not change the nature of the suit. The plaintiff's father could well have obtained ownership of the suit land on the basis of the two different sale deeds executed by two different vendors which is perfectly acceptable. Plaintiff is entitled to take inconsistent pleas in its plaint also. Defendants cannot have any prejudice if such amendment is allowed. The suit has not progressed to an advanced stage. The amendments have been made with due diligence before the trial has commenced. Learned counsel for the petitioner has further submitted that the proposed amendment would only avoid multiplicity of proceedings. 6. Learned counsel for the respondents have opposed the prayer. It is submitted that the very basis and cause of action to seek the relief has been sought to be changed by claiming ownership and title over the suit property through two different vendors on totally different lines of devolution of property. Such inconsistent alternative pleas, which are mutually destructive, cannot be allowed to be incorporated in a plaint by way of an amendment. The defendants had questioned the title of the vendor of plaintiff's father through the registered sale deed dated 18th June 1953. Only thereafter this alternative plea is being set up which will change the very nature of the suit itself. Both the registered sale deeds, if at all true, were available with the plaintiff at the time of institution of the Suit. Only thereafter this alternative plea is being set up which will change the very nature of the suit itself. Both the registered sale deeds, if at all true, were available with the plaintiff at the time of institution of the Suit. In view of settled principles of law relating to amendment of a plaint, the proposed amendments are not tenable in law and on facts. He relies upon the judgment rendered by the Hon'ble Apex Court in the case of Baldev Singh & Ors. vrs. Manohar Singh & Anr. reported in 2006 (4) JCR 186 (SC). He submits relying upon the said judgment that Hon'ble Supreme Court has made clear distinction so far as the amendment of a plaint and that of a written statement is concerned. The defendants may well be permitted to take inconsistent pleas but such a freedom is not available to the plaintiff. Therefore, learned trial court has rightly rejected the proposed amendment by the impugned order which does not require interference. 7. I have considered the submissions of the parties and have gone through the relevant materials including the impugned order. 8. The background canvass of facts only lead to the inference that the proposed amendments tried to set up a totally inconsistent and rather mutually destructive plea on the part of the plaintiff. His cause of action and relief sought for were based upon the categorical case that his father obtained ownership and title of the property through registered sale deed 18th June 1953 from one Shanti Kumar Mishra. By the proposed amendment the same suit land is now being shown to have devolved upon his father through a completely new vendor by another registered sale deed of 29th October 1945. The vendors of the registered sale deeds are said to have got title through registered sale deed dated 18th July 1945 and a registered Raiyati Patta dated 13th May 1944 from Gaibi Nath Mishra and others. Such a course is not permissible for the plaintiff as the very basis of his case is rendered inconsistent. The plaintiff did not even seek deletion of the averments of devolution of title through a sale deed of 18th June 1953 while seeking the proposed amendment in the plaint. Such a course is not permissible for the plaintiff as the very basis of his case is rendered inconsistent. The plaintiff did not even seek deletion of the averments of devolution of title through a sale deed of 18th June 1953 while seeking the proposed amendment in the plaint. Under the scheme of Order-VI, Rule 17 of the Civil Procedure Code the court has the duty to see whether the proposed amendments are necessary for the purpose of determining the real question and controversy between the parties. It cannot be said either on the part of the plaintiff that registered sale deeds were not available at the time of institution of the suit in 2006. Learned trial court after proper application of mind has rightly rejected the proposed amendment. The exercise of jurisdiction cannot be said to suffer from any error in which interference is required to be made under Article 227 of the Constitution of India. Writ petition is accordingly dismissed. The proceeding in the Title Suit No.22/2006 has been remain stayed in view of the interim order dated 29th June 2007. Learned trial court would make endeavour to dispose of the Suit expeditiously. Parties should also cooperate.