Patna High Court - Orders
Mosst.Shakuntala Devi & Ors vs Ganga Mistri @ Ganga Lohar & O on 5 December, 2014
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13851 of 2010
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1. Most. Shakuntala Devi Widow Of Late Jagdish Lohar R/O Vill.-
Dharhara Kalan, P.S.- Fatehpur, Distt.- Gaya
2. Anil Lohar S/O Late Jagdish Lohar R/O Vill.- Dharhara Kalan, P.S.-
Fatehpur, Distt.- Gaya
3. Sandeep Lohar S/O Late Jagdish Lohar R/O Vill.- Dharhara Kalan, P.S.-
Fatehpur, Distt.- Gaya
.... .... Petitioners.
Versus
1. Ganga Mistri @ Ganga Lohar S/O Late Jhari Lohar R/O Vill.- Dharhara
Kalan, P.S.- Fatehpur, Distt.- Gaya
2. Barho Lohar S/O Late Baso Lohar R/O Vill.- Dharhara Kalan, P.S.-
Fatehpur, Distt.- Gaya
3. Rajo Lohar S/O Late Baso Lohar R/O Vill.- Dharhara Kalan, P.S.-
Fatehpur, Distt.- Gaya
4. Mahesh Lohar S/O Late Baso Lohar R/O Vill.- Dharhara Kalan, P.S.-
Fatehpur, Distt.- Gaya
5. Bibi Majda Khatoon W/O Mustaque Khan R/O Vill.- Dharhara Kalan,
P.S.- Fatehpur, Distt.- Gaya
.... .... Respondents.
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Appearance :
For the Petitioners : Mr. Ramashish
Mr. Birendra Singh, Advocates.
For the Respondent : Mr. Nand Kishore Prasad Singh, Advocate.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
7 05-12-2014Heard learned counsel for the petitioners as well as learned counsel, appearing for the respondents.
Petitioners are aggrieved by the order dated 10-06- 2010 passed by Sub Judge-IVth, Gaya in Title Suit No. 125 of 2006/350 of 2006 by which, he rejected the amendment petition, filed on behalf of the petitioners.
Originally, petitioners filed Title Suit No. 350 of Patna High Court CWJC No.13851 of 2010 (7) dt.05-12-2014 2/4 2006 against respondents, claiming their right, title and interest over the half portion of land of schedule-I of the plaint but in course of final argument, a petition under Order 6 rule 17 of the CPC was filed, praying therein to delete some portion of the relief and, accordingly, the petitioners claimed their right, title and interest in respect of the entire disputed plots and, furthermore, petitioners also attempted to bring some plots with new boundary on the plaint. The learned court below rejected the amendment petition, passing impugned order.
Learned counsel, appearing for petitioners submits that as a matter of fact, the original plaintiff, namely, Jagdish Lohar was an illiterate person and he was not aware about the actual position of the ancestral plots and similarly, petitioner No. 1, who happens to be wife of original plaintiff, Jagdish Lohar, is also an illiterate lady and she could not disclose the actual state of affairs in respect of plots, in question, at the time of drafting of the plaint, as a result thereof, the concerned lawyer committed several errors in drafting the plaint but when the respondents were examined in course of trial, it came to light that several plots had already been sold by respondents and, thereafter, the petitioners filed amendment petition for correction of area of the disputed plots and also claimed their right in respect of disputed plots. Patna High Court CWJC No.13851 of 2010 (7) dt.05-12-2014 3/4
Learned counsel, appearing for respondents refuted the above-said submissions arguing that originally, the plaintiffs claimed their right in respect of half portion of the disputed properties but later on, they tried to claim their right in respect of entire disputed plots. He further submitted that the learned court below has rightly observed in the impugned order that if, the amendment petition is allowed, the nature of the suit shall be changed.
Admittedly, the above-said Title Suit No. 125 of 2006/350 of 2006 was originally filed by Jagdish Lohar, who, during pendency of the suit, died and in his place, being his legal heirs, the present petitioners were substituted. Furthermore, it is an admitted position that in course of hearing, when certain defects and errors were pointed out, the amendment petition was filed. Moreover, admittedly, the original plaintiff claimed only half share in respect of disputed plots and it is well settled principle of law that the legal heirs of a deceased are stepped in the shoes of the deceased and, therefore, in my view, the legal heirs of the deceased cannot claim more than the claim, as made by the original plaintiff. Furthermore, I do agree with the submission of learned counsel for the respondents that now plaintiffs/petitioners want to change the nature of the suit by introducing the proposed Patna High Court CWJC No.13851 of 2010 (7) dt.05-12-2014 4/4 amendments and, therefore, in my view also, the learned trial court has rightly rejected the amendment petition, filed on behalf of the petitioners.
Accordingly, this writ petition stands dismissed on admission stage itself.
(Hemant Kumar Srivastava, J) A.K.V./-
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