Patna High Court
Md. Irfan vs Md. Ashfaque @ Ashfaque Ali And Ors on 18 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.2207 of 2017
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Md. Irfan, S/o Late Bashir Ahmad, Resident of Village - Bhataura, P.O. -
Bhataura, P.S. - Bisfi, District - Madhubani having residential house at
mohalla - Benta, P.S. - Laheriasarai, District - Darbhanga.
... ... Petitioner/s
Versus
1. Md. Ashfaque @ Ashfaque Ali, S/o Late Md. Khalil
2. Sanjida Khatoon, W/o Ashfaque Ahmad
3. Bibi Naseema Khatoon, W/o Mushtaque Ahmad, All residing at present in
Rental House at Mohalla - Benta, P.O. - Laheriasarai, P.S. - Laheriasarai,
District - Darbhanga.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Uma Shankar Singh, Adv.
For the Respondent nos.1 &2: Mr. Vishwanath Pd. Singh, Sr. Adv.
Mr. Prakash Ranjan Thakur, Adv.
Mr. Rajesh Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 18-02-2025
Heard learned counsel for the petitioner as well as
learned senior counsel for the respondents.
2. The petitioner is aggrieved by the order dated
13.10.2017
passed in Eviction Suit No. 03 of 2012 by the
learned Sub Judge-VIII, Darbhanga whereby and whereunder
the amendment application filed by the present petitioner for
converting his eviction suit into title suit has been rejected.
3. Learned counsel for the petitioner submits that the
Patna High Court C.Misc. No.2207 of 2017 dt.18-02-2025
impugned order is not sustainable as it has been passed against
the settled proposition of law. Learned counsel referred to the
decision of this Court in the case of Maheshwar Prasad
Sharma vs. Shobha Devi, reported in (1999) 2 PLJR 148
wherein the view has been taken that in an eviction case if a
dispute arises over title, to avoid further litigation, the plaintiff
should be allowed to amend the relief and he could seek
declaration of title. Learned counsel further submits that this
proposition of law has been ignored by the learned trial court
while passing the impugned order. Learned counsel further
relied on the decision of this Court in the case of Shashi
Shekhar Pathak vs. Radha Kant Pathak, reported in (2015)
PLJR 4 859 wherein considering the previous decisions, the
learned Single Judge of this Court held that even though the
plaintiff has not filed the amendment petition soon after filing
the written statement by the defendants and further held that on
the ground of delay the amendment petition could not be
rejected. Learned counsel further submits that when the
respondent filed his written statement, one of the pleas taken by
the respondent was that the instant suit has been filed as eviction
suit but it is in fact a title suit and unless the plaintiff properly
values the suit and pays ad volarem court fee thereon the present
Patna High Court C.Misc. No.2207 of 2017 dt.18-02-2025
suit could not proceed. To obviate future complications and to
avoid multiplicity of litigation, the prayer for amendment
seeking conversion of the eviction suit into title suit has been
moved but the same was rejected by the learned trial court.
4. Learned senior counsel appearing on behalf of the
respondents vehemently contends that there could be no quarrel
with the proposition of law that an eviction suit can be allowed
to be converted into a title suit at the instance of the plaintiff but
stage is equally important. Learned senior counsel further
submits that title suit has been filed in the year 2012 and the
written statement was filed on 23.07.2012 and amendment
application was filed after five years of filing of the written
statement when the plaintiff started examining his witness.
Learned senior counsel further submits that if the eviction is
allowed to be converted into title suit, unnecessary
complications would arise and since disputed question of title
and even partition of share is involved in the matter, a number
of parties would be required to be added further complicating
the matter. Learned senior counsel further submits that in the
given facts and circumstances, it would be proper if the
petitioner takes back his plaint and file a fresh title suit
mentioning all the facts. Learned senior counsel also relies on
Patna High Court C.Misc. No.2207 of 2017 dt.18-02-2025
the decision of this Court in the case of Shashi Shekhar Pathak
(supra) in support of his contention.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. The
impugned order has been passed on application dated
17.08.2017 filed on behalf of the plaintiff/petitioner under Order
VI Rule 17 read with Order VII Rule 7 of the Code of Civil
Procedure (for short 'the Code') seeking certain amendments
which inter alia included the relief of declaration of the title of
the plaintiff for the suit land against the defendant apart from
other reliefs. The law on the point of conversion of an eviction
suit into title suit has been settled. The learned Single Judge in
the case of Maheshwar Prasad Sharma (supra) observed that
where complicated question of title arises, the Court may ask
the plaintiff to seek relief in a properly constituted suit or may
allow the plaintiff to convert the suit into a regular title suit and
decide the question of title on payment of proper court fee and
in appropriate cases, grant the plaintiff the decree of eviction on
the basis of title under Order 7 Rule 7 of the Code. In the case of
Harihar Prasad vs. Biresh Manjhi reported in 2001 (3) PLJR
233, the learned Single Judge held that in a suit for eviction if
title is challenged then in order to avoid further litigation, the
Patna High Court C.Misc. No.2207 of 2017 dt.18-02-2025
plaintiff can make prayer for converting his eviction suit into a
regular title suit for the purpose of declaration of title and he
would be required to pay ad volarem court fee. In the case of
Balram Medical Hall vs. Rajendra Prasad reported in 2007 (3)
PLJR 778, the learned Single Judge made the following
observation in paragraph no.32 which reads as under:-
"32. Further, in view of the provisions of Section
12 of the B.B.C. Act, even if the eviction suit was
decreed, the plaintiffs may not have succeeded in
executing the same against the alleged landlord
who claims independent title and has been put
into possession by the petitioner during the
pendency of the eviction suit."
6. Taking note of all the aforesaid decisions, the
learned Single Judge of this Court in the case of Shashi
Shekhar Pathak (supra) recorded a concurrent finding and
made the issue more clear that even if the amendment petition
has not been filed soon after the filing of the written statement,
the delay could not make the petition filed for amendment liable
to be rejected. Learned Single Judge further held that for just
decision of the case and to avoid further litigation, the prayer of
amendment ought to have been allowed. Though for delay and
harassment caused to the defendant, the court may award for
cost to compensate the defendants.
7. Coming back to the facts of the case, the facts are
Patna High Court C.Misc. No.2207 of 2017 dt.18-02-2025
almost similar, the defendant appeared and filed his written
statement challenging the title of the plaintiff and claimed his
own title over the property in contrast to the claim of the
plaintiff. But the said claim was made just after the plaintiff
appeared before the learned trial court on receipt of the notice
and filed his written statement. It is much apparent that the
plaintiff slept over the matter for almost five years and
thereafter he woke up from deep slumber and filed the
application for amendment seeking relief of declaration of title
against the defendant apart from other amendments. The same
shows the casual and neglect approach of the plaintiff. However,
having regard to the decisions cited hereinbefore, in order to
avoid further litigation and further complication in the matter, it
would be prudent to allow the conversion of the eviction suit
into title suit by allowing the amendment application of the
plaintiff subject to payment of cost. Therefore, the impugned
order dated 13.10.2017 passed by learned Sub Judge-VIII,
Darbhanga in Eviction Suit No. 03 of 2012 is set aside and
application dated 17.08.2017 filed by the plaintiff/petitioner is
allowed subject to payment of cost of Rs. 25,000/- to be paid to
the defendant on the first date of hearing before the learned trial
court.
Patna High Court C.Misc. No.2207 of 2017 dt.18-02-2025
8. Accordingly, the instant petition stands allowed.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 21.02.2025
Transmission Date NA
