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Sheo Pujan Rai v/s V. Ram Ekbal Rai

    C.R. 980 of 2006

    Decided On, 07 January 2008

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.N. HUSSAIN

    For the Appearing Parties: --------



Judgment Text

(1.) HEARD learned counsel for the petitioners and learned counsel for the opposite parties.

(2.) THIS civil revision has been filed against order dated 3/4/2006, by which the learned Subordinate Judge 4th Motihari, allowed the petition filed by the plaintiff-opposite parties for amendment of the plaint of Title Suit No. 23 of 1964 at the stage of preparation of the final decree.

(3.) THE aforesaid title suit was filed by the opposite parties for partition of the suit properties, which was decreed on 12-7-1969, whereafter the petition for preparation of final decree was filed and the same was dismissed for default on 29-6-2000 but it was subsequently restored on 27-4-2005. Thereafter, on 1/3/2006 the

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plaintiffs filed an amendment petition only for the purpose of adding some more lands in the schedule of the plaint, for which partition was sought. The said amendment has been allowed and some plots of land have been ordered to be added to the schedule of the plaint, which is subject for partition.

(4.) LEARNED counsel for the petitioners challenges the aforesaid amendment on the ground that the amendment of the plaint of 1964 has been sought after 42 years in the year 2006. He further submits that the lands, which are sought to be added, have already been partitioned much earlier and have been sold by the plaintiffs themselves and hence they cannot at this stage pray for amendment.

(5.) ON the other hand, learned counsel for the opposite parties relies upon the decision of this Court in the case of Shree krishna Prasad v. Ghan Shyam Gupta, reported in 2002 (1) PLJR 172, in which after considering various decisions of the Hon'ble apex Court and High Courts, it has been held as follows :

"12. As stated above, the partition suit does not come to an end after passing of the preliminary decree and it continues till the preparation of the final decree. More than one preliminary decree can be passed according to the facts of the case. If certain properties have been left out and the plaintiffs wanted to add the same then the Court may add the same and in case of dispute it may decide the dispute but only because the nature of the property has been disputed by the otherwise it cannot be said that the amendment is not permissible. This view has to be taken with a view to shorten the litigation. Once the Court decides the controversy on account of raising of an objection as to the nature of the property, it cannot be held that the amendment is not permissible. In that case, the Court after allowing the amendment may determine the nature of the property and the decision in that matter will amount to a preliminary decree, subject to appeal. "

(6.) THE Hon'ble Apex Court in the case of phoolchand v. Gopal Lal, reported in AIR 1967 SC 1470 has held that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. It had also been held that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed and it would be convenient to the court and advantageous to the parties to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared and if this is done, there is a clear determination of the rights of the parties to the suit on the question in dispute. It was further held that there is no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. The Hon'ble apex Court also held in the said decision that so far therefore as partition suits are concerned, there is no doubt that if an even transpires after the preliminary decree, which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding said dispute and making variation in sharers specified in the preliminary decree already passed is a decree in itself, which would be liable to appeal.

(7.) A Bench of the Andhra Pradesh High court in the case of. Somereddi Burrayya v. Somireddl Atchayyamma, reported in AIR 1959 Andhra Pradesh 26 held that after passing of the preliminary decree, while the suit was pending for preparation of the final decree, in which the plaintiff wanted to substitute certain properties, which were opposed by the defendant, the objection was fit to be overruled and it was also held that the Court had power to allow the amendment in exercise of jurisdiction under Order 6, Rule 17 and Section 153 of the Code of Civil Procedure.

(8.) SIMILARLY, a Division Bench of this court in the case of Awadhendra Prasad v. Raghubansmani Prasad, reported in AIR 1979 Patna 50, held that the amendment of the plaint is possible even after preparation of the preliminary decree. The said decision was followed by a learned single Judge of this Court in the case of Tripurari Mishra v. Most. Rajpati, reported in 1998 (1) PLJR 158 : (AIR 1999 Pat 18), in which it was held that in a case where the nature of the property is a joint property, the amendment is permissible, but when there is a dispute about the nature of the property, such course is not available.

(9.) CONSIDERING the facts and circumstances of the case as well as the aforesaid propositions of law, it is quite apparent that the claim of the defendant-petitioners is that although the properties which are now sought to be added by way of amendment were ancestral joint properties along with suit properties, but subsequently there was a previous partition of the entire properties including these properties and the properties mentioned in the plaint, whereafter some of the plaintiff-opposite parties sold the same to others. In the said circumstances, the nature of the suit properties is not changed even according to the defendant-petitioners, whereas, the plea of previous partition raised by the defendants has already been discarded in the preliminary decree of the suit itself.

(10.) IT further transpires that the plaintiff-opposite parties were seeking addition of the properties, which were, admittedly, joint ancestral properties and were covered under the same set of facts, which have already been decided by the learned trial Court at the time of passing of the preliminary decree. All the relevant aspects of the matter have been considered by the learned Court below while passing the impugned order and it has rightly found that it would neither change the nature of the suit not it would take other side by surprise and, on the other hand, such addition deems necessary to settle the controversy as a whole and prevent any multiplicity of the suits and proceedings.

(11.) IN the aforesaid facts and circumstances, i do not find any illegality in the impugned order of the learned Court below and, accordingly, this Civil Revision is dismissed. Revision dismissed
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