Jharkhand High Court
Jeetan Ram & Ors vs State Of Jharkhand & Ors on 23 November, 2017
Equivalent citations: 2018 (3) AJR 572, (2018) 2 JCR 77 (JHA) (2018) 1 JLJR 582, (2018) 1 JLJR 582
1.
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(C) No. 2536 of 2009
1.Jeetan Ram, son of late Jhari Ram
2.Ramu Gope, son of late Dhani Gope
3.Arjun Yadav, son of Peri Gope
4.Ugan Ram, son of late Bandhu Ram
5.Nanku Ram @ Nanhaku Ram, son of late Ante Ram
6.Mosomat Tekani @ Mosomat Tukani, wife of late Rupan Pasi
7.Karu Paswan, son of late Kishun Paswan
All resident of villageChhotki Dhamrai, POTilaiya Dam,
PSJainagar (Tilaiya Dam O.P), Dist.Koderma
..... .... Petitioners
Versus
1.The State of Jharkhand, through Deputy Commissioner,
Koderma
2.Circle Officer, Jainagar Anchal, Dist.Koderma
3.Prayag Mahto, son of late Kokil Mahto
4.Ram Saneh Mahto, son of late Kokil Mahto
5.Bhupendra Yadav, son of late Nabe Mahto
6.Ramchandra Yadav, son of Lechu Mahto
7.Chhatru Mahto, son of late Deolal Mahto
Respondents nos.3 to 7 residents of villageKanti, POTilaiya
Dam, PSJainagar (Tilaiya Dam O.P), Dist.Koderma
8.Damodar Valley Corporation Branch Office at Hazaribagh,
Dist.Hazaribagh, through Estate Officer ..... ..... Respondents
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. Deepak Kumar Bharati, Advocate
For RespondentState : Mr. Ashish Kumar Thakur, JC to SC(L&C)
For the Resp. nos.37 : Mr. Bharat Kumar, Advocate
For Resp. No.8(DVC) : Mr. S.K.Ughal, Advocate
Mr. T. Kabiraj, Advocate
Oral Order
4/ 23.11.2017Aggrieved of order dated 02.04.2009, passed in Title Suit No.16 of 2004 by which an application for amendment in the plaint has been allowed, the petitioners have approached this Court.
2. Title Suit No.16 of 2004 was instituted by Prayag Mahto and others for a decree of declaration of their right, title and interest over schedule 'A' land and for declaration of their possession over the said land. A decree of khas possession if the 2. plaintiffs are found dispossessed during pendency of the suit was also sought. The settlement through Parcha in favour of defendant nos. 3 to 10 has also been challenged. The plaintiffs have claimed that they are in possession of the suit land which is a raiyati land in villageChhotki Dhamrai and in other adjoining villages. They have claimed khas possession over land comprised in Khata No.37, Plot Nos.1833, 739 and several other plots. They have pleaded that initially in the year 1953 Damodar Valley Corporation settled 4.67 acres land in the name of Jhari Mahto and others. This land they have claimed is situated over C.S.Khata No.37, DVC Khata No.12, C.S Plot No.662, DVC Plot No.1853 and various other lands as enumerated in paragraph nos.3 and 4 of the plaint. The defendants contested the suit by pleading that they are in possession of the suit land (Para4) and the plaintiffs never cultivated nor grew paddy on the said land. Horil Gope, Ishwar Yadav, Chhotu Gope etc. are not Bataidar and out of 15 persons 12 have, infact, executed an agreement on 19.02.2004 stating that they have no concern with the land comprised in Khata No.37 and the said land does not belong to DVC. The defendants took a plea that boundary of the suit schedule land has not been disclosed and, infact, whatever has been stated is not correct (Para5). Assertions in paragraph nos. 3 and 4 of the plaint have been specifically denied. The defendants have disputed the claim of the plaintiffs and claimed that settlees have right, title and cultivating peaceful possession over the land, which have been mutated in their name and they have been paying rent. In the 3. pending suit when it was posted for argument, though the petitioners have claimed that argument in Title Suit No.16 of 2004 was closed, however, they have not corroborated this fact by producing any document, that is, proceeding in Title Suit No.16 of 2004, an application for amendment dated 17.09.2008 was filed for amendment in the plaint for deleting and substituting description of lands in schedule 'A' to the plaint by schedule 'A' and 'B' lands and schedule 'C' (geneology of settlees). This application has been allowed by the trial Judge.
3. Mr. Deepak Kumar Bharati, the learned counsel for the petitioners submits that after the defendants raised a specific objection in their written statement, disputing right, title and interest of the plaintiffs over land comprised in Khata No.37, Plot Nos.731 and 1833 and both the parties led evidence during the trial, amendment in the schedule of properties would amount to changing the nature of the suit by pleading new facts which were not initially incorporated in the plaint. The contention raised on behalf of the petitioners is that bar under proviso to Order VI Rule 17 CPC was not considered by the trial Judge and after the trial focused on the claim of the plaintiffs in respect of land comprised under Khata No.37, Plot No.731 and 1833, the plaintiffs cannot be permitted to withdraw the stand taken in the plaint. The learned counsel for the petitioners has referred to orders passed in W.P.(C) No.1337 of 2014, W.P.(C) No.2468 of 2012 and W.P.(C) No.2530 of 2015.
4. Supporting the impugned order dated 02.04.2009, the 4. learned counsel for the respondents has submitted that no new fact has been pleaded by the plaintiffs in the proposed amendment and description of schedule 'A' and 'B' lands is already there in the plaint in paragraph nos.3 and 4. The learned counsel has relied on decision in "Sajjan Kumar vs Ram Kishan" reported in (2005) 13 SCC 89.
5. Proviso to Order VI Rule 17 CPC is mandatory. The proviso puts a statutory limitation on the power of the Court under Order VI Rule 17 CPC. However, it is no longer in the realm of debate that amendments can be allowed even at the fag end of the trial, that is, at the stage of final arguments. Test applied is, whether a person seeking amendment has established that inspite of due diligence the matter could not have been pleaded and the amendment sought would not cause prejudice to the other party.
6. No doubt the claim of the plaintiffs has been contested by the defendants in the written statement, but the fact remains that description of schedule 'A' and 'B' lands has been disclosed by the plaintiffs in the plaint itself. The plaintiffs have taken a stand that due to inadvertence detailed descriptions of the suit schedule properties were not described in schedule 'A' to the plaint. The contention that by substituting schedule 'A' and 'B' lands, the plaintiffs would be withdrawing their stand, is without substance. Claim of the plaintiffs in para 3 & 4 of the plaint is the description of lands given in the amended schedule. The amendment in schedule 'A' would not bring a surprise to the defendants and it 5. would not cause prejudice to the defendants. The fact remains that the suit which has been filed for a declaration of right, title and interest of the plaintiffs shall remain a title suit. The plaintiffs have not conceded claim of the defendants which after the amendment is allowed would amount to withdrawal of their stand pleaded in the plaint. The trial Judge in order to satisfy himself in respect of the claim as pleaded in the amendment application has looked into the Khatiyan of the land settled by the DVC. I find no infirmity in the approach of the learned trial Judge. In a suit which would be finally decided after taking oral and documentary evidence of the parties, any observation at the interlocutory stage would lose significance and that shall not affect the outcome of the Title Suit No.16 of 2004. Insofar as due diligence on the part of the plaintiffs is concerned, in view of averments in para 3 & 4 of the plaint, all that can be said is that it was a drafting error. All necessary facts were already pleaded in the plaint.
7. In the above facts, on merits I am satisfied that order dated 02.04.2009 does not invite interference of this Court, however, in my opinion, the plaintiffs must not be permitted to lead further evidence. Only the amendment sought in application dated 17.09.2008 shall be incorporated in the plaint, to which the defendants may file additional written statement, however, the parties shall not be permitted to lead further evidence in the suit.
8. With the aforesaid clarification, the writpetition stands dismissed.
(Shree Chandrashekhar, J.) SI/ ,