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2019 DIGILAW 332 (JHR)

Rajindra Prasad @ Rajendra Prasad v. Kali Sonar

2019-01-31

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 227 of the Constitution of India wherein order dated 06.04.2018 passed in T.S. No.60 of 2015 has been challenged whereby and whereunder petition filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure has been rejected whereby and whereunder the following five amendments have been sought for. "1. The work "decimal" appearing in the second line of Paragraph 2 of the pliant be replaced by the word "acre". 2. The words "above mentioned" be inserted in between the word "The" and "Land" appearing in the 4 th line of Paragraph 2 of the plaint. 3 The work "land and possession of the plaintiff" appearing in the 1 st line of Paragraph 14 th of the plaint be replaced by the words "plaintiff''s title and possession of the suit lands the defendant". 4 The following be added to Paragraph 16 th of the plaint. "The alleged sale deed bearing deed No. 5000 dated 16 .06. 1961 relied upon and referred to by the defendants in their written statement is not legal, valid, genuine, operative binding and enforceable document, rather, the same is forged, fabricated, collusive and fraudulent one, and the same has not been executed and registered by a person having vendible right, title, interest, owner ship and possession of the land mentioned therein i.e. the suit land. The person named in the said sale deed dated 16. 06. The person named in the said sale deed dated 16. 06. 1961 as vender was devoid of capacity, competency and authenticity to execute and registered the said sale deed for the reasons that the survey record tenants of the land mentioned there in i.e. the land of suit plot No. 132 under suit Khata No. 125 namely Dhundha Sonar and Budhan Sonar died issueless and their respective wives had predeceased them and they were maintained in their old age by the plaintiff''s grand father Ramdeyal Sonar and they had already divested themselves from their all right, title, interest, ownership use occupation and possession thereof during their life time by selling, transferring, conveying and delivery of possession thereof to plaintiff''s grand father Ramdeyal Sonar in terms of khushki kewala dated Maghsudi 8 Roj Sambat 1995 Sal executed in favour of plaintiff''s grand father Ramdeyal Sonar and Ramdeyal Sonar got indefisable title to and actual, physical possession of the suit land on the very date of his purchase thereof. Ramdeyal Sonar became absolute owner and exclusive possession of the suit land. He continued with his title or possession of suit land so long he remain alive and after his death the same developed first upon his son and thereafter his grand son i.e. the plaintiff and the suit land presently is under absolute owner ship and actual possession of the plaintiff. 5 The following be added to relief no. (b) of the plaint "plaintiff possession of the suit land also be recovered by evicting the defendants or any body claiming possession thereof through the defendants from the suit land and putting the plaintiff in khash possession of the suit land through the process of the court". 2. Mr. Pratyush Kumar, learned counsel for the petitioner at the outset has submitted that he is not pressing the amendment sought for as contained in paragraph 4 and 5 of petition under Order VI Rule 17 as annexed under Annexure-4 to the writ petition, however, he has pressed the amendment sought for as paragraph 1, 2 & 3 contained therein. 3. Pratyush Kumar, learned counsel for the petitioner at the outset has submitted that he is not pressing the amendment sought for as contained in paragraph 4 and 5 of petition under Order VI Rule 17 as annexed under Annexure-4 to the writ petition, however, he has pressed the amendment sought for as paragraph 1, 2 & 3 contained therein. 3. Learned counsel for the petitioner submitted that the trial Court while rejecting the amendment sought for to the effect that the word "decimal" appearing in the 2nd line of the paragraph 2 of the plaint be replaced by the word "acre" and the word "above mentioned" be inserted in between the word "The" and "Land" appearing in the 4th line of paragraph 2 of the plaint and the word "land and possession of the plaintiff" appearing in the 1st line of the paragraph 14th of the plaint be replaced by the words "plaintiff''s title and possession of the suit lands the defendant". 4. The trial Court without taking into consideration the fact that if the aforesaid amendment would be allowed, the nature of the suit will not change rather the amendment sought for is formal in nature and as such the trial Court ought to have allowed at least the aforesaid amendment sought for in the petition filed under Order VI Rule 17 of the Code of Civil Procedure. 5. Mr. Praveen Kumar, learned counsel for the respondents has opposed the prayer and submission of the petitioner by submitting that if the aforesaid amendment would be allowed, the nature of the suit would be changed and the said amendment has been sought for to be made at a belated stage i.e. after framing of the issues, therefore, the same cannot be allowed. 6. 6. Having heard learned counsel for the parties and after going through the pleading made in the writ petition as well as the impugned order it is evident that the title suit has been filed for declaration of right and title over the property in question and it is evident from the plaint that the area has been mentioned by quantifying it in the terms of decimal and therefore the plaintiff after coming to know about that, there is inadvertent error in making reference of "decimal" instead of "acre" and certain words has been sought to be replaced as would be evident from paragraph 2 & 3 of the amendment petition. 7. It is evident from paragraph 2 of the plaint that the details of the area of the land in question has been mentioned as "0.03 decimal" which has been sought to be amended as "0.03 acres" and therefore no material change would come in the original pleading made by the plaintiff in the plaint in view of the fact that when the figure is in "0.03 decimal", if it would be allowed to be amended as "acre", no material change would come rather it is apparent from area rather if the area would have been like "3 decimal", the matter would have been different, when the reference has been made as "0.03 decimal" meaning thereby, it would be "0.03 acre" which ultimately come to only 3 decimal therefore allowing the said amendment would not change the nature of suit and it can only be said to be an inadvertent typographical error. 8. So far as the amendment sought for in 4th line of paragraph 2 of the plaint, the word "above mentioned" be inserted in between "The" and "Land" in the 4th line of paragraph 2 where it has been typed as "The land is more fully described in SCHEDULE A of the plaint", the word "above mentioned" in between "The" and "Land" has sought to be incorporated. 9. If the said amendment would be allowed to be done, no material change will come in the content made in paragraph 2 of the plaint, rather it would be more particular and specific. 10. 9. If the said amendment would be allowed to be done, no material change will come in the content made in paragraph 2 of the plaint, rather it would be more particular and specific. 10. The 3rd amendment sought for, the word referred in 1st line of paragraph 14 wherein it has been typed as "land and possession of the plaintiff" has been sought to be replaced by the words "plaintiff''s title and possession of the suit lands the defendant". 11. If the word "land and possession of the plaintiff" would be replaced by the word "plaintiff''s title and possession of the suit lands the defendant" meaning of the said paragraph will not change. 12. In view thereof, the trial Court ought to have taken into consideration with respect to the amendment sought for at paragraph 1, 2 & 3 since the same is formal in nature as discussed above and the nature of the suit is not going to be changed. 13. Hence, the findings with respect to the amendment sought for, paragraph 1, 2 & 3 which has been rejected by the trial Court will be said to be not proper and in exercise of power conferred to this Court under Article 227 of the Constitution of India, it would be appropriate and proper to allow the aforesaid amendment for modifying the order dated 06.04.2018 passed in T.S. No.60 of 2015 to the effect as indicated hereinabove. 14. So far as the rejection by the trial Court with respect to the amendment sought for at paragraph 4 & 5 to the said petition, since the petitioner is not pressing that part of the amendment sought for, the implied meaning would be that the findings of trial Court in this regard is perfect. 15. In view thereof, writ petition stands disposed of.