Mahabir Prasad vs Kishori Sah
2025 Latest Caselaw 1937 Patna

Patna High Court

Mahabir Prasad vs Kishori Sah on 24 February, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1570 of 2019
     ======================================================
1.    Mahabir Prasad, Son of late Sammat Sah, Resident of Sakin Mouze-
      Mirzapur Tole Pamra P.S. and Distt. - Sitamarhi.
2.   Ram Kishun Sah, Son of late Sam Sammat Sah, Resident of Sakin Mouze-
     Mirzapur Tole Pamra P.S. and Distt. - Sitamar.
3.   Ram Sevak Prasad Sah @ Ram Sevak Prasad, Son of late Sammat Sah,
     Resident of Sakin Mouze- Mirzapur Tole Pamra P.S. and Distt. - Sitamar.
                                                             ... ... Petitioner/s
                                      Versus
1.   Kishori Sah, Resident of Sakin Mouze- Mirzapur Tole Pamra P.S. and Distt.
     - Sitamarhi.
2.   Nunnu Sah, Resident of Sakin Mouze- Mirzapur Tole Pamra P.S. and Distt. -
     Sitamarhi.
3.   Circle Officer, Dumra at present Sitamarhi town.
4.   The State of Bihar through Collector Sitamarhi.
                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :     Mr.Bindeshwar Sah, Advocate
     For the Respondent/s   :     Mr.Uday Kumar, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
     ORAL JUDGMENT
      Date : 24-02-2025

                  Heard learned counsel for the petitioners as well as

      learned counsel for the respondents.

                  2. The petitioners are aggrieved by the order dated

      12.03.2019

passed by the learned Munsif, Sadar Sitamarhi in

Title Suit No. 04 of 2013 whereby and whereunder the learned

Munsif rejected the amendment petition dated 20.11.2018 filed

on behalf of the plaintiffs/petitioners.

3. Learned counsel for the petitioners submits that the

petitioners are plaintiffs before the learned trial court and have

filed the title suit for declaration of title over the schedule Patna High Court C.Misc. No.1570 of 2019 dt.24-02-2025

property being khatiyani ancestral property and seeking further

declaration that entry in the revisional survey in the name of the

father of the private respondents is illegal and void. Further

declaration has been sought that the Basgit Parcha issued by

respondent no.3 in favour of late Ramdev Sah, the father of the

private respondents was illegal, void and non binding upon the

petitioners. Learned counsel further submits that land pertaining

to Survey New No. 472 under Khata No. 560 belongs to the

petitioners but the father of the private respondents got issued a

Basgit Parcha in his name for the disputed land in collusion

with the Circle Officer. During pendency of the title suit, the

private respondents have constructed a pucca house of bricks

and tiles on the land in question in the year 2014 in the month of

Vaisakh. The said fact was not in the knowledge of the

petitioners and as soon as they came to know about the fact,

they sought the amendment. An application dated 20.11.2018

was filed on behalf of the plaintiffs/petitioners and the same was

heard and rejected by the learned trial court vide order dated

12.03.2019. Learned counsel further submits that the learned

trial court has not considered the factual aspect of the matter

necessary for the just decision in this case and, therefore, such

order is not sustainable in the eye of law. The disputed land is Patna High Court C.Misc. No.1570 of 2019 dt.24-02-2025

khatiyani ancestral land of the petitioners and there is already

prayer in prayer portion as para 13 (ग) of the plaint that during

course of pendency of this suit the Advocate Commissioner be

appointed for the fact finding and direction be made to the

private respondents for maintaining status quo. Learned counsel

further submits that respondent is not disputing the khatiyani

ancestral land in the property of the petitioners and has not

stated anything as to how and why the Basgit Parcha was issued

against the requirements of law. Learned trial court ought to

have considered the fact that for real determination of the

controversy between the parties and for just decision in this

case, ought to have allowed the amendment application.

Therefore, the impugned order is fit to be rejected and the

amendment petition of the petitioners needs to be allowed.

4. Learned counsel appearing on behalf of the

respondent nos. 1 and 2 vehemently opposes the submission

made on behalf of the petitioners. Learned counsel submits that

there is no infirmity in the impugned order and there is no need

to interfere with the same. Learned counsel further submits that

the plaintiffs have brought a time barred suit which is barred

under Article 100 and 113 of the Limitation Act. Further, the

plaintiffs/petitioners have admitted the title and possession of Patna High Court C.Misc. No.1570 of 2019 dt.24-02-2025

the father of the defendant 1st party and has also stated about

Basgit Parcha being issued in the year 1973 and 40 years

thereafter, the present suit has been filed. The amendment has

been sought at the stage of the evidence of the parties.

Therefore, the same is barred under proviso to Order VI Rule 17

of the Code of Civil Procedure (for short 'the Code'). Hence,

there is no infirmity in the impugned order and the same does

not require any interference.

5. Having regard to the facts and circumstances, rival

submissions of the learned counsel for the parties and on perusal

of record, I find that while bringing the amendment, the

plaintiffs/petitioners have not stated anything about date of their

knowledge and not bringing the said amendment earlier though

it has been stated that the defendants constructed the brick and

tiles house on the suit property without any information to the

plaintiffs. Further, amendment has been sought about removal of

the structure created by the defendants from the suit land and

handing over the possession to the plaintiffs/petitioners. But the

amendment application has been filed after much delay and

without explanation since the plaintiffs admittedly came to

know about the structure created by the defendants in the month

of vaisakh of the year 2014 and the amendment application has Patna High Court C.Misc. No.1570 of 2019 dt.24-02-2025

been filed on 20.11.2018 without any explanation for not

bringing the amendment earlier before the learned trial court.

The suit has been filed in the year 2013. The trial has already

commenced and therefore, the amendment sought by the

plaintiffs/petitioners is barred under proviso to Order VI Rule 17

of the Code. Order VI Rule 17 of the Code reads as under:-

"17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided 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 could not have raised the matter before the commencement of trial."

6. From bare perusal of the provision, it is clear that

the Court could not allow any amendment after the

commencement of trial unless a party can show that despite due

diligence, the amendment sought could not be brought on record

earlier in time. Though the cause of action for bringing the

amendment is said to have arisen in 2014 but the amendment Patna High Court C.Misc. No.1570 of 2019 dt.24-02-2025

application is completely silent about the fact when the plaintiffs

got the knowledge while they have all along been claiming the

possession of the suit land. The claim of the plaintiffs about

subsequent development gets diluted in these circumstances and

the trial was allowed to proceed and amendment has been

sought without showing any due diligence. Reliance could be

placed on the case of Basavaraj vs. Indira & Ors. reported in

(2024) 3 SCC 705, wherein the Hon'ble Supreme Court held that

the Courts should not allow the amendments at belated stages if

due diligence has not been shown. Learned trial court has

considered all the aspects of the matter and rightly rejected the

amendment application.

7. In the light of discussion made hereinbefore, I do not

find any reason to differ with the finding recorded by the learned

trial court. Hence, the impugned order dated 12.03.2019 passed by

the learned Munsif, Sadar Sitamarhi in Title Suit No. 04 of 2013 is

affirmed having no infirmity.

8. Accordingly, the present petition stands dismissed.

(Arun Kumar Jha, J) balmukund/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          27.02.2025
Transmission Date       NA