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2018 DIGILAW 2825 (JHR)

Janki Mahto v. Most Nandi

2018-12-21

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners, who are the plaintiffs in Title Suit No.17 of 2010, are aggrieved of the order dated 16.06.2017 by which their application for amendment in the plaint has been declined. 2. Title Suit No.17 of 2010 has been instituted for a decree for declaration of the plaintiffs right, title and interest over Item I and II of schedule ''A'' properties and for confirmation of their possession over the suit land. The plaintiffs have pleaded that the lands comprised under Khata No.154 within Thana No.170, PS- Bagodar (now, Vishungarh) were recorded in the name of Nema Mahto. His grand-son namely, Tilak Mahto, after the death of the recorded tenant in the year 1976, sold 0.41 acres land in Khata No.154 to different villagers but not to Bisun Mahto and Kanhai Mahto. It is pleaded that the sale-deed dated 28.10.1980 executed in favour of Bisun Mahto in respect of 0.41 acres land was forged and fabricated. 3. It is this date of the sale-deed as appearing in paragraph no.4 of the plaint, which the plaintiffs intend to correct. 4. During trial of Title Suit No.17 of 2010, the plaintiffs filed an application seeking the following amendments in the plaint: "a) That in the fifth line of para-4 the figures "28.10.80" appearing in between the words "dated" and "was" be ordered to be deleted and its place the figures "28.08.78" be allowed to be substituted. b) That after the end of para-4 the following sentence be allowed to be added:- "It is further submitted that Tilak Mahto was completely blind from his very child hood and was an illiterate person as well, not capable of writing his signature even." c) That in the 21st Line of para 13 the figures 5958 appearing in between the words "and" and "on" be ordered to be deleted and in its place the figure "1858" be allowed to be substituted. 5. However, by an order dated 14.02.2018 the writ petition was confined to amendment in paragraph no.4 of the plaint for correcting the date of sale-deed allegedly executed in favour of Bisun Mahto. 6. The defendants in their written-statement have asserted that Tilak Mahto has executed the sale-deed on 28.08.1978 and not on 28.10.1980. In para 10 of their written statement, the defendants have pleaded as under : "10. 6. The defendants in their written-statement have asserted that Tilak Mahto has executed the sale-deed on 28.08.1978 and not on 28.10.1980. In para 10 of their written statement, the defendants have pleaded as under : "10. That the statements made in para 4 of the plaint are completely false and wrong. It is false to say that Tilak Mahto has not transferred and executed a Registered Sale Deed on 28.10.1980 for 0.41 Acre of land in Khata No.154, Plot No.1857 area 0.35 Acre and Plot No.1858 area 0.06 Acre in favour of Kanhai Mahto and Bishun Mahto and it is also false to say that the Sale Deed dated 28.10.1980 was got executed by some other person by impersonating Tilak Mahto at the instance of the purchaser Bishun Mahto who got created a sale deed in respect of the said 0.41 Acre in Khata No.154. It is submitted that the plaintiffs have no knowledge about the actual date of execution of Sale Deed executed by Tilak Mahto so they have wrongly stated the date of Sale Deed 28.10.1980 in place of 28.8.78. It is also submitted that at the time of execution of Sale Deed Tilak Mahto was identified by the witness Beso Singh of same village and scribe of the Deed of Sale was Sukhdeo Prasad, resident of Bishnugarh of the same locality so it can''t be said that the said Sale Deed was got executed by impersonating Tilak Mahto by some imposter. It is also false to say that the Registered Sale Deed was not acted upon and Kanhai Mahto and Bishun Mahto not dared to act under the Sale Deed for the last 28 years or even the descendants of Kanhai Mahto and Bishun Mahto have dared to act upon the Sale Deed for the lat 28 years and it is submitted that the Sale Deed was properly acted upon and the purchasers remained in possession physically and after their death descendants are in physical cultivating possession over the sad purchased 0.41 Acre of land and their names were mutated and they are paying rent to the State. It is also submitted that the plaintiffs never raised any objection in the mutation proceeding in the year 1991-92 rather they helped in mutating the names of Bishun Mahto and Kanhai Mahto for the said 0.41 Acre of land in Khata No.154 in village Kharki, P.S.Bishnugarh, District-Hazaribag in the Bishnugarh Anchal, District-Hazaribag." 7. In view of the above stand taken by the defendants in their written-statement, the date of sale-deed, which is written as 28.10.1980 in paragraph no.4 of the plaint, must be corrected. 8. The trial Judge apparently has committed serious error in dismissing the application dated 29.04.2016 for amendment in the plaint, to the extent the correction in the date of sale-deed, as asserted by the defendants, is concerned. 9. Accordingly, the writ petition is allowed to the above extent.