Roshan Jamil Ansari Vs Kriti Mahatha

Kriti Mahatha, aged about 40 years, son of late Durgadas Mahatha, resident of Village Bandhgora, Tola -Khedadih, PO and PS Pindrajora, District Bokaro, Jharkhand …… …. … Petitioner(s)

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-- Versus --

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1.Roshan Jamil Ansari, son of late Salim Ansari, resident of Village Ukrid

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-1- C.M.P. No.324 of 2024 with C.M.P. No.471 of 2024

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Basti, PO and PS Sector XII District Bokaro

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2.Rizwan Ansari, son of late Salim Ansari resident of Village Ukrid Basti, PO and PS Sector XII District Bokaro

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3.Imran, son of late Salim Ansari, resident of Village Ukrid Basti, PO and PS Sector XII District Bokaro ….. Plaintiffs/ Opposite party 4.Kalimuddin Ansari son of late Hazi Nizamuddin Ansari, resident of Village Ukrid Basti, PO and PS Sector XII District Bokaro

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….. Defendant/Proforma Opposite Party

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5.Kongresh Mahatha son of late Dasranjan Mahatha, resident of Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro 6.Amar Mahatha son of late Dasranjan Mahatha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro 7.Chandicharan Mahatha son of late Santu resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro

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8.Sanjay Mahatha son of Yusdhistir Mahatgha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro 9.Parikshit Mahatha son of late Moti Lal Mahatha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro 10.Ajit Mahatha, son of late Moti Lal Mahatha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro 11.Yusdhisthir Mahatha, son of late Moti Lal Mahatha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro

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12.Harsh Lal Mahatha, son of late Moti Lal Mahatha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro 13.Raju Mahatha son of late Bishun Mahatha, resident of Village Bandhgora, Tola Khedadih, PO and PS-Pindrajora, District Bokaro

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…….Defendant Nos.1 to 8/Proforma Opposite Parties

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner(s) : Mr. Mukesh Kumar, Advocate ( C.M.P. No. 324 of 2024) Mr. Kushal Kumar, Advocate ( C.M.P. No. 471 of 2024) For the Opposite Party(s) : Mr. Mukesh Kumar, Advocate ( C.M.P. No. 471 of 2024)

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-2- C.M.P. No.324 of 2024 with C.M.P. No.471 of 2024

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Mr. Kushal Kumar, Advocate ( C.M.P. No. 324 of 2024) ----

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/07.07.2025 In C.M.P No.324 of 2024, Mr. Mukesh Kumar, the learned counsel appears for the petitioners and Mr. Kushal Kumar, the learned counsel appears for the Opposite party nos.1 to 10; notice upon the O.P.No.11 has been dispensed with as he is said to be proforma opposite party and in C.M.P No.471 of 2024, Mr. Kushal Kumar, the learned counsel appears on behalf of the petitioners and Mr. Mukesh Kumar, the learned counsel appears on behalf of the Opposite party nos.1 to 3; O.P.Nos.4 to 13 are said to be proforma Opposite parties and in view of that notice upon them have been dispensed with and by order dated 05.05.2025, Mr. Mukesh Kumar, the learned counsel has accepted notice and submitted Vakalatnama on behalf of the O.P.Nos.1 to 3.

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Heard the learned counsel for the petitioners in respective cases as well as the learned counsel for the opposite parties in respective cases.

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In both the cases, similar order is under challenge and in view of that both the petitions have been heard together with consent of the parties.

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In C.M.P.No.324 of 2024, the prayer has been made for setting aside order dated 05.02.2024 passed by learned Sub-Judge-II, Bokaro in Original Suit No.10 of 2023 to the extent that the part of the amendment sought by the petitioners under Order VI Rule 17 CPC read with section 151 CPC has been rejected by the learned court in a petition being M.C.A. No.60 of 2023 .

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In C.M.P.No.471 of 2024, the same order is under challenge by which the part of the amendment has been allowed by the learned court.

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Mr. Mukesh Kumar, the learned counsel for the petitioner in C.M.P.No.324 of 2024 and for the O.P.Nos.1 to 3 in C.M.P.No.471 of 2024 submits that the Original Suit No.10 of 2023 was instituted by the plaintiff for declaration of

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-3- C.M.P. No.324 of 2024 with C.M.P. No.471 of 2024

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right, title and interest and for possession over the schedule -A land with others prayers. He then submits that after notice the Opposite parties have appeared and filed their written statement on 01.05.2023 mentioning inter alia about recent survey settlement. In light of that, a petition on 30.8.2023 was filed by the petitioner/plaintiff under Order VI Rule 17 CPC read with section 151 CPC for amendment of the plaint which was numbered as MCA No.60 of 2023. He submits that the proposed amendment in the plaint is averred in paragraph no.10, 11, 12 and 13 of the amendment petition. He submits that the rejoinder to that amendment was also filed on behalf of the Opposite parties. He further submits that, although, the amendment of the plaint is formal in nature and there is no change in the nature of the suit and in spite of that, the learned court has rejected to allow the amendment so far as the prayer portion is concerned. He submits that, however, the learned court has allowed the amendment sought to be incorporated in the plaint. He submits in view of that, the petition was required to be allowed in whole and the learned court has allowed the same partly. On this ground, he submits that the impugned order so far as the rest amendment was rejected, may kindly be set aside.

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Mr. Kushal Kumar, the learned counsel for the petitioner in CMP No.471 of 2024 and Opposite parties in CMP No.324 of 2024 submits that the present dispute resolves over land of 11.21 acres situated in Mouza No. Bandhgora under Khata No.35 bearing several plots of the respondent nos.2 to 4 are claiming right, title and possession over the aforementioned land on the basis of forged and fabricated document which has been evident from the record room of Purulia record Room (West Bengal). He draws attention of the Court to the averments made in the plaint and submits that in the plaint it has been stated that the aforementioned land settled in favour of Sheikh Ibrahim Mahto under -4- C.M.P. No.324 of 2024 with C.M.P. No.471 of 2024

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claim of Rs.1100/- and annual rent of Rs.4/- after the sale land was surrendered by recorded tenants to the ex-land lord Shashi Bhushan Mishra and others on 8.5.1939 and thereafter the said Sheikh Ibrahim Mahto came in peaceful possession of the aforesaid land and respondents concerned. He then submits that the Opposite party/defendants have contended that father of the plaintiff kept all records with himself and after his death Bargauli took place in the year 2021 and all the documents were misplaced. He submits that the plaintiffs claim to have right on the same land on the basis of such settlement, Settlement Case No.124 of 1939-40 and such documents have been obtained from District Record Room, Purulia, in the State of West Bengal in the year 2022. He submits that written statement has been filed by the proforma respondents before the learned court in response to the plaint denying all the statements averred in the said plaint. He further draws the attention of the Court para 16 of the written statement at page no.61 and submits that the averments have been made there of practice of fraud and denial of the same and alleged deed of surrender has been prepared and signature of dead persons and wrong name persons also, as such father’s name of Dinu Mahatha is wrong and no person as raiyat named as Prabhu Mahto, Doman Mahatha died prior to 1932. Kartik Mahatha also died on 13.11.1933 and the land lord Shashi Bhushan Mishra already died before 1932 and no name of Ashwini Mishra as son of late Dwarikanath Mishra has been shown in the alleged deed of surrender. Manipulated date at its face of the year 1939. He submits that in the said paragraph further plea has been taken that Surrender Case No.76/124 of 1939 is also in contravention of Chotanagpur Tenancy Act and its application before the unfounded court and authority, the plaintiff put to strict proof thereof

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its genuineness otherwise the suit ultimate be dismissed because the

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-5- C.M.P. No.324 of 2024 with C.M.P. No.471 of 2024

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genuineness otherwise the suit ultimate be dismissed because the answering defendants stated that the recorded tenant Deenu Mahatha, Barju Mahatha, Doman Mahatha and Kedar Mahatha never surrender one inch of land of C.S. Khata No.10 to the ex-land lord at any point of time except Kartik Mahatha has surrendered his share prior to 1932. He submits that all fraud has been made and the documents have been created in the neighbouring State of West Bengal. He submits that in view of this background, when the written statement was filed the amendment petition has been filed and the new plea has been taken that the said land was already the subject matter in Title Suit of 1947-48. He submits that in view of that also, the amendment was required to be rejected as it be deemed to be res-judicata if the property is the same. He further submits that the land in question was already notified in the last survey in the year 2010 and the final publication was made after following due process and in view of that, the prayer with regard to the amendment is further barred by limitation of 13 years and the prayer with regard to correction of the record of right which can be only within 90 days from the date of publication and that can be only decided under section 87 of the Chotanagpur Tenancy Act. He submits that in light of section 87, the judgment of the Hon’ble Supreme Court in the case of Paritosh Maity and Etc v. Ghasiram Maity and Another reported in AIR 1987 Patna 167, can be decided by the Civil Court, however, it should be within three years. He submits in view of that, the said prayer is also barred by time of 13 years. He submits that in a case like this, the ratio laid by the Hon’ble Supreme Court in the case of Revajeetu Builders and Developers v. Narayanswamy and Sons and Another reported in (2009) 10 SCC 84 is required to be considered and he refers to paragraph no.63 of the said judgment, which is given below:

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-6- C.M.P. No.324 of 2024 with C.M.P. No.471 of 2024

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“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

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(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(2) whether the application for amendment is bona fide or mala fide;

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(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

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(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

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(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”

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Relying on the above judgment, he submits that the impugned order may kindly be set aside.

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In view of the above submission of the learned counsels appearing on behalf of the parties in the respective cases and looking to the documents on record, it transpires that after notice the defendants have appeared and filed their written statement and one of the stand taken by them in paragraph no.16 is to the effect that the persons said to be surrendered, already died before the execution of the surrender and only after filing of the said written statement the amendment was sought before the learned court by way of filing said amendment petition which has been partly allowed by the learned court. Further the said land was said to be the subject matter of title suit of the year 1947 and for the same land, second suit will not be maintainable in light of the provisions made under the C.P.C, however, the learned court has been pleased to allow the same and rejected the relief portion only. It transpires that in light

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-7- C.M.P. No.324 of 2024

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with

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C.M.P. No.471 of 2024

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of the objection made in paragraph no.16, admission to the suit has been brought to be withdrawn by way of filing the said amendment petition and it has been further pointed out that the documents have been created in neighbouring State of West Bengal and further the survey of the land in question was also made in the year 2010 and after 13 years the said amendment was sought to be made in the written statement filed by the plaintiffs. Thus, it appears that the for the same property, two suits have been filed and subsequently, the amendment has been sought on the basis of earlier title suit of the year 1947 by the plaintiff. It further transpires that for two suits in respect of same subject matter clearly suggest that there is attempt to seek relief in one court and further by way of filing another suit and for that, the amendment has been sought. Further the survey publication was made in the year 2010 and the same has been sought to be challenged in the year 2023 by way of filing the said amendment which is further barred by limitation in light of the section 87 of Chotanagpur Tenancy Act.

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