Jharkhand High Court
Bishwanath Yadav vs State Of Jharkhand on 16 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 601 of 2022
----
Bishwanath Yadav, aged about 42 years, son of Chutru Mahto,
resident of village - Sundri, PO and PS - Kunda, District - Deoghar
.... Petitioner
-- Versus --
1. State of Jharkhand, Secretary Land & Reforms Department, Ranchi,
Project Building, Dhurwa, PO and PS - Dhurwa, District - Ranchi
2. Guhi Mahti, son of Late Khushru Mahto
3. Biranchi Mahto, son of Guhi Mahto
4. Pappu Mahto, son of Guhi Mahto
5. Sourkhi Devi, daughter of Late Hriday Mahto
6. Malti Devi, daughter of Late Hriday Mahto
7. (A) Parmeshwar Mahto, S/o Late Mangan Mahto
(B) Naresh Mahto S/o Late Mangan Mahto
8. Parmeshwar Mahto, son of Mangan Mahto
9. Naresh Mahto son of Mangan Mahto
10. (a) Gouri Devi, w/o Late Bhaglu Mahto
(b) Nitay Yadav, S/o Late Bhaglu Mahto
(c) Sintu Kumar, S/o Late Bhaglu Mahto
(d) Mukma Devi D/o Late Bhaglu Mahto
11. Mohan Mahto, son of Late Lilu Mahto
12. Nageshwar Mahto, son of Late Lilu Mahto
All are resident of Village - Sundri, PO and PS - Kunda,
District - Deoghar
13. Harni Devi, D/o Udho Mahto, Village - Kachuwa Bank, PO and PS -
Sarath, District - Deoghar
14. Deleted
15. Anita Devi, wife of Gorelal Yadav, daughter of Late - Ghutru Mahto,
resident of village - Kariyabigha, PO and PS - Hilsa, District - Nalanda,
Bihar
16. Ramchandra Mahto, son of Tarni Mahto
17. Tripurari Mahto, son of Tarni Mahto
18. Nepali Mahto, son of Tarni Mahto
19. Sahdeo Mahto, son of Late Bhola Mahto
Serial Nos. 16 to 19 are resident of village - Kachuwa Bank, PO and PS
- Sarath, District - Deoghar .... Respondents
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Niranjan Kumar, Advocate
For the State :- Mr. Sanjay Kr. Tiwari, Advocate
For Respondent Nos.2
3, 4, 8, 9, 11, 12 :- Mr. Arvind Kumar Choudhary, Advocate
For Respondent No.19 :- Mr. Lalit Yadav, Advocate
----
25/16.01.2025 Heard learned counsel appearing for the petitioner, learned
counsel appearing for the respondent State and learned counsel
appearing for the opposite party Nos.2, 3, 4, 8, 9, 11, 12, who are the
contesting defendants and learned counsel for the proforma opposite
party No 19.
2. This petition has been filed under Article 227 of the Constitution
of India for quashing of the order dated 24.03.2021 passed by learned
Civil Judge (Senior Division) - IV, Deoghar in Title (P) Suit No.68 of 2011
by way of Miscellaneous Civil Application No.235 of 2018 by which
petition under Order VI Rule 17 read with Section 151 of CPC filed by the
petitioner has been rejected.
3. Learned counsel appearing for the petitioner submits that the
Title Partition Suit was instituted for preliminary decree for the partition
of the suit property according to the legal share of the parties and for
appointment of an Amin Commissioner to the effect partition by metes
and bounds in accordance with the preliminary decree and for declaration
that the Family Settlement Deed No.187 of 2003 which the respondent
No.16 to 19 by playing fraud managed to declare that as null and void.
He submits that the said suit was proceeded and it was fixed for
evidence. He submits that two amendment was sought in paragraph
No.11, however, the same has been rejected by the learned Court.
According to him, partition deed dated 02.09.1977 was sought to be
challenged and the learned Court has rejected the same on the ground of
limitation and that is an erroneous ground and in view of that the order
may kindly be set aside. He relied in the judgment of Hon'ble the
Supreme Court in the case of Life Insurance Corporation of India
versus Sanjeev Builders Private Limited and Another reported in
2022 0 Supreme (SC) 864.
4. Learned counsel appearing for the respondent State submits
that by way of said amendment under Order VI Rule 17 of CPC the
petitioner tried to challenge the partition deed dated 02.09.1977 and that
is after expiry of the limitation in light of Article 59 of the Limitation Act
and the same was already disclosed in the written statement of the
opposite party dated 07.07.2012.
5. Learned counsel appearing for the opposite party Nos.2, 3, 4, 8,
9, 11 and 12 submits that the suit was filed for declaration of the Family
Settlement Deed No.187 of 2003 as void ab initio. He submits that the
said partition took place pursuant to the Partition Deed No.2747 of 1977
and the said was not challenged and the averments of that was accepted
by the petitioner and he has also stated that pursuant to that he has also
transferred certain portion of the property to his sister by Deed No. 1977
of 2003. He submits in view of this if the petition is allowed the entire
nature of the suit will be changed. He further submits that even the due
diligence is not shown in filing of the said petition.
6. It is an admitted position that the suit was instituted for partition
of the suit property and the family arrangement was made in the year
2003. The partition deed dated 02.09.1977 was the subject in making the
family arrangement and that was already disclosed in the written
statement of the defendant which was filed before the Court on
07.07.2012 and it was further in the knowledge of the petitioner in spite
of that no step has been taken and the 1977 partition is also accepted in
the written statement of the plaintiff and further petitioner has executed
the deed in favour of his sister in view of the partition of the year 1977.
In this background, it is clear that if the said petition is allowed, it will
change the entire nature of the suit as 1977 partition has already been
acted upon pursuant to that family arrangement of 2003 was made and
on the basis of 1977 partition, the petitioner has transferred the part of
the property to his sister. This is not a case of simple amendment and the
Courts are very liberal in allowing the simple amendment before deciding
of the suit, however that fact is lacking herein and the judgment relied by
learned counsel appearing for the petitioner with regard to the limitation
is not helping him as this is not a simple amendment. The simple
amendment are being allowed at any stage liberally by the Courts,
however, the facts of the present case is different from the facts of
judgment relied by learned counsel appearing for the petitioner in the
case of Life Insurance Corporation of India versus Sanjeev
Builders Private Limited and Another (supra).
7. Admittedly order 6 Rule 17 of CPC has empowered the Court to
allow the amendment of the pleadings at any stage of the proceedings in
order to determine the real questions in controversy between the parties
with a rider that no application for amendment shall be allowed after the
trial has commenced unless the Court comes to the conclusion that in
spite of due diligence the party who sought for amendment could not
have raised the same before the commencement of trial.
8. What has been discussed here-in-above in the amendment,
there is no disclosure of lack of due diligence. In the instant case by
amending the written statement by the plaintiff cannot be allowed to
reside from the earlier statement of admission made in favour of the
defendants which if allowed could cause prejudice to the defendants,
more so, when there is lack of due diligence in seeking the amendment
in the plaint. There is no illegality in the impugned order, as such this
petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
