Patna High Court
Rajendra Prasad vs Jitendra Kumar on 23 June, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1014 of 2017
======================================================
1.1. Kedala Prasad W/o Late Rajendra Prasad, Presently residing at Rourkela,
Sundargarh Oddisa, Jagada P.B. No. 24 (Jhilpani).
1.2. Satish Prasad Son of Late Rajendra Prasad, Presently residing at Rourkela,
Sundargarh Oddisa, Jagada P.B. No. 24 (Jhilpani)
1.3. Santosh Prasad Son of Late Rajendra Prasad, Presently residing at Rourkela,
Sundargarh Oddisa, Jagada P.B. No. 24 (Jhilpani)
1.4. Sunil Kumar Prasad Son of Late Rajendra Prasad, Presently residing at
Rourkela, Sundargarh Oddisa, Jagada P.B. No. 24 (Jhilpani)
1.5. Susil Kumar Prasad Son of Late Rajendra Prasad, Presently residing at
Rourkela, Sundargarh Oddisa, Jagada P.B. No. 24 (Jhilpani).
1.6. Subash Kumar Prasad Son of Late Rajendra Prasad, Presently residing at
Rourkela, Sundargarh Oddisa, Jagada P.B. No. 24 (Jhilpani).
... ... Petitioner/s
Versus
1.1. Malti Devi W/o- Late Jitendra Kumar Resident of Village- Pakariyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.2. Deep Kumar S/o- Late Jitendra Kumar Resident of Village- Pakariyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.3. Manoj Kumar S/o - Late Jitendra Kumar Resident of Village- Pakariyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.4. Dharmendra Kumar S/o- Late Jitendra Kumar Resident of Village-
Pakariyabar, P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.5. Amit Kumar S/o- Late Jitendra Kumar Resident of Village- Pakariyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.6. Prasant Kumar S/o- Late Jitendra Kumar Resident of Village- Pakariyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.7. Sumit Kumar S/o- Late Jitendra Kumar Resident of Village- Pakariyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur.
1.8. Shobha Devi W/o- Om Prakash Bhagat, D/o- Late Jitendra Kumar Resident
of Village and P.O.- Kamriyan, P.S.- Tiyar, Dist.- Bhojpur.
1.9. Anju Devi W/o- Dayashankar Mali, D/o- Late Jitendra Kumar Resident of
Village- Chirangi Chhapara, P.O.- Dokti Sarybhanur, Dist.- Baliya (U.P).
1.1 Rakhi Kumari W/o- Subodh Bhagat, D/o- Jitendra Kumar Resident of
0. Village- Dumariya, P.S.- Shahpur, District- Bhojpur (Bihar).
2. Radha Shyam, Son of Late Chotan Bhagat Present address Radhe Shyam
Raurkela, Sundargarh, Oddisa, J.B.- 96, Jagda (Jhilpani).
3. Sarswati Kunwar, Wife of Late Kedar Bhagat Resident of Village-
Pakriyabar, P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur, Ara.
4. Kamlesh Kumar, Son of Late Kedar Prasad Resident of Village- Pakriyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur, Ara.
Patna High Court C.Misc. No.1014 of 2017 dt.23-06-2025
2/7
5. Umesh Kumar, Son of Late Kedar Prasad Resident of Village- Pakriyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur, Ara.
6. Ramesh Kumar, Son of Late Kedar Prasad Resident of Village- Pakriyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur, Ara.
7. Sudhir Kumar, Son of Late Kedar Prasad Resident of Village- Pakriyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur, Ara.
8.1. Kunti Kumari W/o Late Lalan Kumar Ram Nagar Colony, Chas- Bokara,
Pin- 827001.
8.2. Sangita Devi W/o Bimal Bhagat Sector- 11/D Qr. No.- 2015, Post Office and
P.S.- Sasaram, District- Rohtas (Bihar).
8.3. Reeta Devi W/o Tez Narayan Prasad Resident of Sasaram, P.S.- Sasaram,
Bihar.
8.4. Neeta Devi W/o Vinay Bhagat C/o Bhuwali Bhagat, Bichali Road, Ara.
8.5. Heema Prasad W/o Ajay Prasad Resident of A-60, Sector- 4, Rourkela,
District- Sundargarh (Odisa).
8.6. Puspa Devi Ramnagar Colony, Chas, Bokaro.
8.7. Suman Devi W/o Jitendra Bhagat Resident of Ramnagar Colony, Chas,
Bokaro, Pin- 827001.
8.8. Lili Devi Wife of Sambhu Prasad J.B.- 96-769042 Jagda, Raurkela, District-
Sundargarh (Odisa).
9. Mohan Kumar, Son of Visheshwar Bhagat Resident of Village- Pakriyabar,
P.O.- Chandwa, P.S.- Udwantnagar, District- Bhojpur, Ara.
10. Phul Kumar Devi, Wife of Sri Baban Bhagat Resident of Village- Ram
Nagar, P.O.- Sedha, P.S.- Pira, District- Bhojpur, Ara.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Aditya Narayan Singh, Advocate
Mr. Dharmesh Kumar Shrivastava, Advocate
For the Respondent/s : Mr. Manoj Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 23-06-2025
Heard the learned counsels for the respective parties
and I intend to dispose of the present petition at the stage of
admission itself.
02. The petitioners are aggrieved by the order dated
12.12.2016
passed by the learned Sub Judge-V, Ara in Title suit
Patna High Court C.Misc. No.1014 of 2017 dt.23-06-2025
No. 1175 of 2014 whereby and whereunder, the learned Sub
Judge disposed of the application dated 29.06.2016 filed by
original plaintiff/respondent no. 1 under Order VI Rule 17 of the
Code of Civil Procedure read with Section 151 of the Code and
allowed certain amendments in the plaint.
03. Learned counsel for the petitioners submits that
the original plaintiff/respondent no. 1 has filed Title Suit No.
1175 of 2014 claiming 1/6th share of the suit property. The
common ancestor of the both the parties was one Ram Briksh
Mali, who had four sons, namely Jhapashi Mali, Jamuna Mali,
Bisheshwar Bhagat and Chhotan Bhagat. Plaintiff/respondent
no. 1 and original defendant nos. 8 and 9/respondent nos. 8 and
9 are the three sons of Bisheshwar Bhagat. Learned counsel
further submits that Schedule-I property of the plaint has been
claimed as ancestral property and a partition to the tune of 1/6th
share has been claimed by the plaintiff/respondent no. 1.
Learned counsel further submits that the petitioners are
aggrieved by the amendments sought for by the
plaintiff/respondent no. 1. Learned counsel further submits that
in the first amendment sought by the plaintiff/respondent, he has
submitted that due to mistake of typist in relief portion, instead
of 1/3 share, 1/6 share has been wrongly typed and sought
Patna High Court C.Misc. No.1014 of 2017 dt.23-06-2025
deletion of 1/6 and substitution of same by 1/3, but the same is
apparently a false claim. If the common ancestor was having
four sons, each son would get only 1/4th share and the father of
plaintiff/respondent no. 1 could get 1/4th share only. Now, the
plaintiff is having three brothers and his share would come to
1/12 in the ancestral property. It is not the case of the plaintiff
that he and defendant nos. 8 and 9 are claiming jointly. Even if
for the sake of argument, it is taken that his claim is joint with
his brothers, even then only 1/4th share could be claimed by the
plaintiff and not 1/3rd. So, this amendment mentioned in para-1
of the amendment application regarding plaintiff claiming 1/3
share is incorrect.
04. Learned counsel next submits that the amendment
sought in para-2 of the application is that the property in
Schedule-2 is the exclusive property of plaintiff and defendant
nos. 8 and 9 and the defendant nos. 1 to 7 and 10 had no
concern with the said property. Learned counsel further submits
that plaintiff could have sought this relief at the time filing the
plaint. Further, there is no document to support such claim. The
said amendment would also change the nature of the suit as the
suit would be converted from a suit of partition to a suit of
declaration. Learned counsel, thus, submits that these
Patna High Court C.Misc. No.1014 of 2017 dt.23-06-2025
amendments have been wrongly allowed and the impugned
order needs interference of this Court. The learned counsel has
also opposed the other amendments allowed by the learned trial
court, but not in convincing manner.
05. Learned counsel appearing on behalf of
respondent nos. 1 and 3 to 7 contends that there is no infirmity
in the impugned order. The amendments are quite routine in
nature and do not change the nature of the suit. However,
learned counsel could not apprise this Court how the plaintiff
has been claiming 1/3 share as the same is contrary to the facts
brought on record by the plaintiff in his plaint. Learned counsel
further submits that so far as challenge of amendment sought in
para-2 is concerned, the averments in this regard have already
been made in paragraph-6 of the plaint and it is apparent only a
relief in connection with the said paragraph-6 has been sought
through the amendment and the same could not be denied.
06. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
07. Since the learned counsel for the petitioners has
not been able to persuade this Court about infirmity in allowing
amendment sought at Paras-4, 5, 6 and 7, the impugned order
regarding these amendments need no consideration by this
Patna High Court C.Misc. No.1014 of 2017 dt.23-06-2025
Court. However, the learned counsel for the petitioners has very
vehemently opposed the amendments sought in Paragraph Nos.
1 and 2 of the application, the amendment sought at Paras-1 and
2 of the application are taken for consideration at length by this
Court.
08. So far as amendment allowed at Para-2 of the
application is concerned, if there has already been averments
made in the plaint and relief could not be sought by the plaintiff
at the time of filing the plaint, allowing amendment seeking
relief of declaration could not be said to be bad, if foundation is
already present in the plaint.
So far as challenge to the amendment sought at Para-1
of the application is concerned, it relates to merits of the
amendment. Law is clear that the merits of the amendments are
not to be considered at the time of allowing or disallowing the
amendment. But when it is apparent that there is absence of
specific pleading with regard to claim of 1/3 share, the
amendment is contrary to the pleadings. Since the claim of the
plaintiff is against the facts pleaded and no basis of such
amendment has been laid out, such amendment could not be
allowed. On this short point, I am inclined to interfere with the
impugned order dated 12.12.2016 on the point of allowing
Patna High Court C.Misc. No.1014 of 2017 dt.23-06-2025
amendment sought at para-1, even though same touches upon
the merit of the amendment and hence, the amendment allowed
at para-1 of the application is rejected and the impugned order
dated 12.12.2016 is modified to that extent only. However, the
plaintiff/respondent no. 1 may file appropriate application for
making the position clear about his claimed share in the suit
property, if so advised.
09. Accordingly, the present petition stands allowed in
part.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.06.2025
Transmission Date NA
