Gauhati High Court
3: Pranab Patgiri vs Biswajit Das on 8 December, 2021
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010249002019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/35/2020
ON THE DEATH OF LAKSHAN SEN PATGIRI, HIS LEGAL HEIRS AND 5 ORS.
GOALPARA
1.1: CHITRA PATGIRI
W/O LATE LAKSHAN SEN PATGIRI
R/O VILL- BAMUNPARA
WARD NO.- 8
P.O AND DIST- GOALPARA
1.2: PRABIN PATGIRI
S/O LATE LAKSHAN SEN PATGIRI
R/O VILL- BAMUNPARA
WARD NO.- 8
P.O AND DIST- GOALPARA
1.3: PRANAB PATGIRI
S/O LATE LAKSHAN SEN PATGIRI
R/O VILL- BAMUNPARA
WARD NO.- 8
P.O AND DIST- GOALPARA
2: GANESH CH. PATGIRI
S/O- LT. JOGESH CH. PATGIRI
R/O- VILL. BAMUNOARA
P.O. AND DIST.- GOALPARA.
3: SUBIMOL PATGIRI
S/O- LT. JOGESH CH. PATGIRI
R/O- VILL. BAMUNOARA
P.O. AND DIST.- GOALPARA.
4: BISWAJIT PATGIRI
S/O- LT. DINESH CH. PATGIRI
R/O- PUB SARANIA
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CHANDMARI
GHY.-03.
5: NILANKAR PATGIRI
S/O- LT. DINESH CH. PATGIRI
R/O- PUB SARANIA
CHANDMARI
GHY.-03.
6: DEEPANKAR PATGIRI
S/O- LT. DINESH CH. PATGIRI
R/O- PUB SARANIA
CHANDMARI
GHY.-03
VERSUS
BISWAJIT DAS
S/O- LT. RATNESWAR DAS, R/O- NEW GOALPARA, P.O.- BALADMARI, P.S.
AND DIST.- GOALPARA.
Advocate for the Petitioner : MR. A C SARMA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 08-12-2021 Heard Mr. H Baruah, learned counsel for the petitioner.
2. This is an application under Article 227 of the Constitution of India challenging the order(s) dated 24.05.2019 and 11.06.2019 passed in Title Suit No.5/2013.
3. The brief facts of the instant case is that the petitioner who is the plaintiff, had instituted a suit seeking declaration of the plaintiffs right title and interest, for declaration of the mutation of the suit land in the name of the defendants is illegal, for a declaration of the cancellation of the deed of sale being No.679/570 dated 10.06.2013, for precept to be issued in terms Page No.# 3/5 with the said cancellation; for confirmation of possession and for permanent injunction etc.
4. In the said plaint, more particularly in paragraph No.17 it has been pleaded that the plaintiff along with the proforma defendants are the joint owners of the Schedule A land and is the undivided joint family property and is still under the joint possession of the plaintiff and the proforma defendants.
5. In the written statement filed by the proforma defendants, more particularly in paragraph No.10 it has been specifically pleaded that the plaintiff along with the proforma defendants are the joint owners of the Schedule A land. The principal defendants in the suit filed a written statement denying to the statements and allegations made in the plaint. Thereupon issues were framed. Amongst the various issues framed, the issue No.6 was framed as to "whether the plaintiff has right title and interest over the suit land" which is the schedule A land.
4. Evidence had been led and the suit is fixed for arguments. At that stage, the plaintiff apprehending that the Court below may not take into consideration that it is the specific case of the plaintiff as well as the proforma defendant that they are the joint owners of the suit land and the issue having been framed only to the effect that as to "whether the plaintiff has the right title and interest over the suit land" the plaintiffs filed an application seeking amendment of issue No.6 whereby instead of "whether the plaintiff has right title and interest over the suit land", the said issue should be read as "whether the plaintiff and the proforma defendant have right title and interest over the suit land". The said application was rejected vide an order dated 24.05.2019 on the ground that the proposed amended issue would be inconsistent with the relief or reliefs sought for by the Page No.# 4/5 plaintiff. Thereupon the proforma defendant in the suit also filed an application under Order XIV Rule 5 CPC for amendment of the issue No.6 in view of their stand taken in paragraph No.10 of the written statement. The said application of the proforma defendant was also rejected by order dated 11.06.2019 on the ground that the proposed amendment is not required as the proforma defendant have not filed any counter claim and thereby fixed the suit for arguments on 19.06.2019.
5. I have heard the learned counsel for the petitioner at length.
6. In terms with Order XIV Rule I CPC an issue is required to be framed when a material proposition of law or fact is affirmed by one party and denied by the other. Further to that, in terms with Order XIV Rule 5 the Court at any time before passing a decree can amend the issue or frame additional issue on such terms as it thinks fit as may be necessary for determining any controversy between the parties.
7. Without interfering with the orders impugned before this Court, I am of the opinion that it would be in the interest of justice that the trial Court while adjudicating the suit may take into consideration paragraph 17 of the plaint as well as paragraph 10 of the written statement filed by the proforma defendant wherein it has been specifically pleaded that the plaintiff along with the proforma defendants are joint owners of the suit land.
8. With the above observation the instant petition stands disposed of.
9. The observations made hereinabove is based upon the assertion made by the petitioner that the suit is still at the stage of arguments. However, if the suit has been already disposed off, the observations made hereinabove shall not apply.
JUDGE Page No.# 5/5 Comparing Assistant