Dismissed¶66

Dharmbir Kumar And Anr. v. Kanahai Sahu And Ors.

Partition suit – Amendment of plaint schedule after preliminary decree

Jharkhand HC17 Jun 2025WPC/1039/2016

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What is this about?

Jharkhand High Court, Ranchi; W.P. (C) No. 1039 of 2016; decided 17.06.2025 by Justice Gautam Kumar Choudhary. Keywords: partition suit; preliminary decree; final decree; amendment of plaint schedule; Khata No. 96 / Khata No. 6; proviso to Order VI Rule 17; due diligence; inordinate delay; belated amendment; more than one preliminary decree; Phoolchand v. Gopal Lal; Mahavir Prasad v. Ratan Lal; writ petition dismissed.

What did the court decide?

A partition suit must be deemed to be pending until a final decree is actually granted, and the prospect of amendment of a preliminary decree in a partition suit is not altogether foreclosed; instances of amendment of preliminary decree in partition suits exist. ¶60

Dharmbir Kumar And Anr. Vs Kanahai Sahu And Ors. — Jharkhand HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the petitioners' application to amend the schedule of the plaint in the partition suit, to include additional plots after the preliminary decree had been drawn, could be allowed at a belated stage having regard to the proviso to Order VI Rule 17 and the requirement of due diligence. +1 more

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Court's answer

On the facts, there was no reason whatsoever for not bringing the amendment petition during the pendency of the suit; the facts sought to be incorporated were within the petitioners' knowledge at the time of filing and it was not a case of subsequent development necessitating amendment, so allowing the petition would jettison the statutory provision barring belated amendments; following Mahavir Prasad v. Ratan Lal, the delayed amendment application could not be allowed.

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Ratio / Principle

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Key takeaways

Non-inclusion of the entire joint family property would amount to partial partition for which a decree cannot be granted; it is the duty of the court in a partition suit to adjudicate the claims of all parties claiming a share.ratio¶62

Detailed headnote1 paragraphs

Partition suit — Amendment of plaint schedule after preliminary decree — Petitioners (plaintiffs) sought inclusion of additional plots (described as seven plots under Khata No. 6, otherwise referred to as plots of Khata No. 96) after their Partition Suit No. 16 of 2007 stood decreed and a preliminary decree drawn — Held: (i) a partition suit must be deemed pending till the final decree and more than one preliminary decree is permissible (Phoolchand v. Gopal Lal, relied on); non-inclusion of entire joint family property amounts to partial partition; (ii) however, under the proviso to O 6 R 17, no amendment is allowable after trial unless the party could not have raised it despite due diligence — there was inordinate, unexplained delay; the plots were within the petitioners' knowledge at institution and the amendment did not arise from any subsequent development — delayed application rightly rejected (Mahavir Prasad v. Ratan Lal, relied on) — Writ petition and pending I.A.s dismissed.

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2025:JHHC:16089

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 1039 of 2016

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1(a) Dharmbir Kumar

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1(b) Sahju Kumar

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Both sons of Late Doman Mahto, R/o Village Pundag, P.S.-Jagarnathpur, Dist.Ranchi

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1(c) Usha Devi, W/o Sri Dilip Mahto, D/o Late Doman Mahto, R/o Village Malsaring, P.S. Pithoria, Dist.-Ranchi

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1(d) Pushpa Devi, W/o Sri Dilip Mahto, D/o Late Doman Mahto, R/o Village Khunti, P.S. Khunti, Dist.-Khunti

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2(a) Kaushalaya Devi, W/o Late Saibu Mahto

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2(b) Micky Kumari, D/o Late Saibu Mahto

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2(c) Ravi Kumar, S/o Late Saibu Mahto

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All residents of Village Pundag, P.S.-Jagarnathpur, Dist.- Ranchi

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..... .... Petitioners

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Versus

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Kanahai Sahu

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Ramsagar Sahu

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Sushila Devi, W/o Late Ram Kumar Sahu

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3(a) Nitesh Kumar (Minor)

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3(b) Nilesh Kumar (Minor)

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All residents to village Pundag, P.S.-Jagarnathpur, Dist.- Ranchi

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Most. Munni Devi, W/o Late Rambrit Sahu

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Sukra Mahto @ Lohra Mahto, S/o Late Nanhu Mahto

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Sukar Teli, S/o Maharuwa Teli @ Jharuwa Teli

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(a) Funia Devi, W/o Late Shivcharan Teli, R/o Village-Pundag, P.O. & P.S. Jagarnathpur, District-Ranchi

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7(b)Phulo Devi, W/o Sahadar Mahot, D/o Late Shivcharan Teli, R/o Birbanda, Namkum, P.O.-Lali-Ranchi

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7(c)Ful Kumari Devi, W/o Jethan Mato, D/o Late Shivcharan Teli, R/o Village Khijri, P.O.- Gudzora, P.S. Khunti, District-Khunti, Jharkhand

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7(d)Shyam Devi, W/o Sanoj Sahu, D/o Late Shivcharan Teli, R/o village Tungri Tola, P.S.-Burmu, P.O.-Chakme, District- Ranchi

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Jogendra Mahto Village Pundag, P.S.-Jagarnathpur, Dist.- Ranchi

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8(a) Paro Devi, W/o Texi Mahto, R/o Village-Malsirin, P.S.-Pithoria, Ranchi

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8(b) Tijo Devi, W/o Sri Govind Mahto, R/o village Kuitaitu, Namkum, Ranchi

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Banes Teli, S/o Dukhana Teli

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Bhudhan Devi, W/o Late Pusuwa Teli

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10(a) Shyamsundar Mahto, S/o Late Pusuwa Teli

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10(b) Seema Devi, W/o Late Suresh Mahto

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10(c) Shiv Kumar, S/o Late Suresh Mahto

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10(d) Sandhya Kumari

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10(e) Bidya Kumari Both D/o Late Suresh Mahto

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All residents of village Kuitiatu, Namkum, Ranchi

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Ramprabhu Teli, S/o Late Dhuruva Teli

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Lakhan Teli, S/o Late Dhurva Teli

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All residents of village Pundag, P.O. & P.S. Jagarnathpur, District-Ranchi

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Sukermani Devi, W/o Panchu Sahu, R/o Village-Sugnu, P.S. Sadar, P.O.G.P.O., District-Ranchi

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2025:JHHC:16089

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Pokwa Devi, W/o Indru Teli, D/o Kenhaiy Teli, R/o village-Murhu, P.S. Burmu, Dist.-Ranchi

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Churwa Devi, W/o Sri Amin Sahu, R/o village Sahhan, P.O. & P.S. Argora, District-Ranchi

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… …. Respondents

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioners : Mr. Bhaiya V. Kumar, Advocate For the Respondents : Mr. Mahesh Tewari, Advocate : Mr. K.K. Ambastha, Advocate ------

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Order No. 23 / Dated : 17.06.2025.

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The petitioners are plaintiffs whose Partition Suit No. 16 of 2007 was decreed vide judgment dated 31.03.2010 and it attained finality as no appeal was preferred against it.

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On the basis of the schedule of property, as mentioned in the plaint, preliminary decree was drawn.

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Petitioners moved the learned Trial Court for amendment in schedule of the plaint for including some seven plots under Khata No. 6 which were not mentioned in the schedule of the plaint. The petition for amendment was rejected against which the present writ petition has been filed.

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It is submitted by the learned counsel appearing on behalf of the petitioners that the land, which was sought to be included, was recorded in the cadastral survey record of rights as joint property and also in the revisional survey record of rights. In the counter affidavit filed by the respondents to the petition for amendment, it was not a joint family property. Despite this, petition for amendment has been rejected. It is argued that the amendment, sought to be made, is typographical in nature which will not affect the merit of case and is permissible at any stage in view of the ratio laid down by the Apex Court in 2005 (13) SCC 89 and AIR 1971 SC 1081 in which it has been laid down that there can be more than one preliminary decree. Reliance is also placed on 2007 SAR (Civil) 929 Supreme Court, AIR 2011 SC (Civil) 2716, AIR 1999 Patna 18 and 2021 (4) JBCJ 288.

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It is further submitted that there are specific averments in paras-8 to 11 of the plaint that the land pertaining to Khata No. 96 was joint family property and these averments have not been denied in the written statement, and the

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denial is regarding the share of the parties of this khata.

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Learned counsel for the respondents-defendants has contested the claim for amendment on the ground that the same has been filed at a belated stage after the preliminary decree has been drawn, without assigning any reason for it. Laches on the part of counsel cannot be accepted as sufficient ground for the delay in preferring the amendment petition. It is submitted that the partition suit in this case was filed in the year 2007 and the judgment was delivered in 2010. After the judgment having been delivered the preliminary decree was drawn, petition for amendment in the schedule of plaint to include 36 more plots under Khata No. 96 has been filed.

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It is further submitted that originally the suit was filed for a decree of partition with respect to 6.75 acres of land under Khata No. 96 and by the instant amendment 37 plots of the same Khata is sought to be included increasing the schedule property to 10. 84 acres. The plaintiffs–petitioners were totally aware of these plots but despite this, they did not exercise due diligence to bring these plots in the schedule and at a belated stage, the instant writ petition has been filed.

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It is contended that inclusion of these plots will change the nature and character of the suit. In a similar case ordered by the Co-ordinate Bench of this Court in W.P. (C) No. 1586 of 2019, the prayer for amendment in the Schedule-‘A’ of the plaint after preparation of the preliminary decree for partition has been rejected. It is argued that part of the suit property has been sold out by the plaintiffs-petitioners.

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Having considered the submissions advanced on behalf of both sides, it is apparent that there is an inordinate delay in preferring the amendment petition. Proviso to O 6 R 17 reads as under: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

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There is merit in the plea of the petitioners that there are instances of amendment of preliminary decree even in partition suit and the prospect of amendment of preliminary decree is not altogether foreclosed. A partition suit must be deemed to be pending till a final decree is actually granted. It is the duty of the court in a partition suit to adjudicate upon the

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claims of all the parties who claim a share in the subject-matter of the suit. Otherwise, it would lead to endless anomalies and complications. Noninclusion of the entire joint family property shall amount to partial partition for which a decree cannot be granted. Law is settled that in a partition action, more than one preliminary decree can be granted particularly in partition suit. It has been held in Phoolchand v. Gopal Lal , 1967 SCC OnLine SC 266 : (1967) 3 SCR 153 :

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“ We are of opinion 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. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared”. However, in cases of delay, amendment petition has been rejected. Such a delayed application was rejected in Mahavir Prasad v. Ratan Lal, (2009) 15 SCC 61.

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In the present case there is no reason whatsoever for not bringing the amendment petition during the pendency of suit. The facts that are sought to be incorporated at this stage was within the knowledge of the Petitioner at the time of filing of the suit. It is not a case of subsequent development necessitating amendment. In the absence of any reason to allow the petition at this stage will amount to jettison the statutory provision that bars amendment petition at belated stage. Amendment of the schedule even at this stage would have been possible, if none had contested the inclusion of the property in the schedule.

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Under the circumstance, I do not find any merit in the present writ

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petition which accordingly stands dismissed.

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Pending I.A., if any also stands dismissed.

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(Gautam Kumar Choudhary, J . )

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Pawan / -

Dharmbir Kumar And Anr. v. Kanahai Sahu And Ors.

Case brief

What is this about?

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Dharmbir Kumar And Anr. v. Kanahai Sahu And Ors.

Case brief

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