High Court dismissed a writ petition challenging an order rejecting an amendment application in a suit for permanent injunction. The court held the writ petition was not maintainable under Article 226.
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Court No. - 59
Case :- WRIT - C No. - 34331 of 1999
Petitioner :- Chhotey Lal Respondent :- D.J. Varanasi And Others Counsel for Petitioner :- Sankatha Rai,Dr. V.K. Rai,Vinod Kumar Counsel for Respondent :- C.S.C.,Iqbal Ahmad,S.K. Singh
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ashok Kumar Singh holding brief of Dr. V. K. Rai, learned counsel for the plaintiff-petitioner and Sri Iqbal Ahmad, learned counsel for the private respondents.
2. Briefly stated facts of the present case are that a suit for permanent injunction being Original Suit No.1258 of 1987 (Chhotey Lal Vs. Sohan and others) was filed to injunct the respondents from interfering with the use and occupation of the plaintiff of land of Khasra Plot No.205/2 area 1 acre 8 decimal situate in Village Mahmoodpur, Pargana Mawai, District Varanasi. A written statement was filed by the defendant Nos.1, 3 and 4 dated 27.02.1988 and a written statement was filed by the defendant No.2 dated 16.06.1988. According to the plaint the plaintiff-Chhotey Lal is the adopted son of Shiv Hari while the defendants, namely, Sohan, Mohan, Chowalal, Bachulal are also the sons of Shiv Hari. A lease of the disputed land was taken by the Shiv Hari from the Zamindar by a registered deed dated 19.08.1947 which was registered at Serial No.1587 Bahi No.1, Jild No.830 Page-38-40 on 21.09.1947. Undisputedly, the name of Shiv Hari was recorded in the revenue records along with plaintiff (Minor) over the disputed property as evident from copies of Khatauni of 1359 fasli, 1362 fasli, 1366-68-69 fasli, 13-70-72 fasli and other subsequent
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khataunies filed as Annexure SCA-2, SCA-3, SCA-4, SCA-5. After the death of Shiv Hari, the name of the plaintiff and the defendants were recorded in the revenue records as successors. Their names continued in the revenue records as evident from copies of khatauni filed as SCA-6, SCA-7, SCA8, SCA-9 and SCA-10. It further appears that a Partition Suit No.22/44 of 1980 (Sohan Vs. Mohan and others) was filed under Section 176 of the U.P.Z.A. and L.R. Act, 1950 before the S.D.O., Chandauli (West) in which the plaintiffpetitioner was the defendant No.4. The aforesaid partition suit was decided by judgment dated 29.04.1981 and the shares of the plaintiff-petitioner and the defendantsrespondents were determined to be 1/5th each in the property left by Shiv Hari. After more than 20 years and much after filing of the Original Suit No.1257 of 1987 for injunction, the plaintiff-petitioner filed a recall/restoration application in the aforesaid partition suit claiming that he is the exclusive owner of the disputed plot No.205. This application was rejected by the S.D.O., Sadar, Chandauli by order dated 06.11.2004 against which the plaintiff-petitioner filed Appeal No.1 of 2004 (Narad and others Vs. Sohan and others) under Section 331 of the U.P.Z.A. and L.R. Act which was dismissed by the Additional Commissioner (Judicial), Varanasi Division, Varanasi by order dated 22.02.2005. Against the aforesaid order, the plaintiff-petitioner filed a Second Appeal No.46 of 2004-05 which was dismissed by the Board of Revenue by order dated 06.03.2017. Learned counsel for the plaintiff-petitioner states that against the aforesaid order of the Board of Revenue, the plaintiffpetitioner filed Writ-B No.5689 of 2018 (Narad Vs. Board of Revenue and 13 others) which was disposed of by this Court by order dated 03.12.2018 giving liberty to the petitioner to
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file an appeal to challenge the preliminary decree passed in the suit for partition by filing of regular appeal. Learned counsel for the petitioner states that perhaps the plaintiffpetitioner has filed a regular appeal.
3. An amendment application being paper No.243-Ka was filed by the plaintiff-petitioner in Original Suit No.1258 of 1987 taking altogether a new stand that he is the exclusive owner of the disputed khasra plot on the basis of another patta dated 19.08.1949. In paragraph 2 of the Amendment Application he stated that at the time of filing of the suit, the patta was not available with him and as such he filed the suit on the basis of available copy of the Kabooliyat. The amendment application that was filed by the plaintiff on or after 05.03.1999, has been rejected by the impugned order dated 14.05.1999 passed by the Ist Additional Civil Judge (Junior Division), Varanasi on the ground that by amendment the plaintiff wants to withdraw admissions made in the plaint with regard to ownership and possession of the defendants as successor of Shiv Hari and in place he wants the averment to be inserted in the plaint that he is the exclusive owner and in possession in the disputed property. The Ist Additional Civil Judge found that the plaintiffpetitioner himself has admitted the receipt of the disputed property as successor of Shiv Hari and thus, by amendment he wants to change the admissions made in the plaint and if the amendment is allowed then it shall change the nature of the suit as well as important changes in cause of action. After rejection of the amendment application the plaintiffpetitioner filed Civil Revision No.192 of 1999 which was rejected by the District Judge, Varanasi by order dated 26.07.1999 after recording similar finding as was recorded
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by the Additional Civil Judge while rejecting the amendment application. Aggrieved with these two orders the plaintiffpetitioner has filed the present petition under Article 226/227 of the Constitution of India.
4. Learned counsel for the petitioner submits as under:-
(i) The plaintiff has stated in the plaint that his father-Shiv Hari has wrongly shown him as minor while obtaining patta of the disputed plot from the Zamindar on 19.08.1949. Therefore, the amendment was sought to be made merely supplement the pleadings.
(ii) If any averment was made contrary to the patta dated 19.08.1949 then the plaint deserves to be suitably amended. Therefore, rejection of amendment application was wholly illegal.
(iii) There is no pleading in the plaint including any admission in favour of the defendants. The order rejecting the amendment application on the ground that the admission has been withdrawn, is incorrect.
(iv) Even the admission made in the plaint may be withdrawn by the plaintiff.
5. Learned counsel for the respondent supports the impugned orders.
6. I have carefully considered the submissions of learned counsels for the parties.
7. In paragraph 2 of the plaint, the plaintiff has stated
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that father of the plaintiff Late Shiv Hari has taken patta from Zamindar on 19.08.1949 of Khasra Plot No.205/2 measuring 1-08 decimal situate in Village Mahmoodpur, Pargana Mawai, District Varanasi but Kabooliyat of the patta was executed by his father-Shiv Hari wrongly showing the plaintiff as minor. The plaintiff and Late Shiv Hari came in possession of the aforesaid khasra plot. In paragraph 4 the plaintiff has stated that since the date of obtaining patta dated 19.08.1949 the plaintiff and Shiv Hari owned and remained in possession till the date of death of Shiv Hari and after his death the plaintiff became sole owner of the aforesaid plot.
8. Perusal of the deed dated 19.08.1949 registered on 21.09.1949 in Bahi No.1, Jild 830, Page 38-40, Serial No.1587 filed as Annexure-10 to the writ petition shows that the patta of the Zamindar was accepted by Shiv Hari in which the plaintiff is shown as minor. This deed bears signature of Shiv Hari and not the signature of the plaintiff. The other deed on which the plaintiff intend to rely was allegedly registered at Serial No.1586 of Bahi No.1, Jild No.828, Page 370-372 dated 19.08.1949 which also does not bear signature of the plaintiff, as per copy of the deed filed as Annexure SA-1.
9. Thus, from the facts as aforementioned, it is clear that the entire case set up by the plaintiff at the time of filing of the suit for permanent injunction was that his father-Shiv Hari along with him were the lessee . This admission has been intended to be withdrawn by the amendment application dated 05.03.1999 (Paper No.243-Ka) in the suit which is pending since the year 1987. It is also admitted fact
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that the name of Shiv Hari and the plaintiff as minor were recorded in the revenue records and the entries in revenue record stood in the name of Shiv Hari since the year 1949-50 till his death. Thereafter the name of Shiv Hari's adopted son, i.e., the petitioner and his other four sons were recorded in the revenue record which continued undisturbed. The partition decree was also passed in the year 1981, as mentioned above, in which each of the sons of Shiv Hari including the plaintiff got 1/5th share in the disputed property.
10. In view of the facts as briefly noted above and also in view of the fact that the suit in question has been filed for injunction and the plaintiff-petitioner could not get a declaration of title over the entire disputed plot, therefore, the rejection of amendment application on the findings recorded in the impugned orders does not suffer from any legal infirmity.
11. That apart the present writ petition has been filed under Article 226 of the Constitution of India to challenge the order of civil court which is not maintainable in view of the law laid down by the Hon'ble Supreme Court in the case of Radhey Shyam and another Vs. Chhabi Nath and others, 2015 (5) SCC 423.
12. For all the reasons aforestated, the writ petition is dismissed.
Order Date :- 1.4.2019 Nitin Verma
1 issue framed by the court
Whether a writ petition filed under Article 226 of the Constitution of India challenging the civil court's order rejecting an amendment application in a suit for injunction is maintainable.
Colour shows how this judgement treated each authority
Radhey Shyam and another Vs. Chhabi Nath and othersReferred¶30
Radhey Shyam and another Vs. Chhabi Nath and others, 2015 (5) SCC 423 · Who else cites this
Chhotey Lal
D.J. Varanasi
Surya Prakash Kesarwani
As recorded by the court registry
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