Chitra Sahu Vs Iswar Sahu

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 123 of 2023

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An application under Sections 226 and 227 of the Constitution of India)

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--------------Chitra Sahu ... Petitioner -VersusIswar Sahu and others ... Opp. Parties

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Advocate(s) appeared in this case:_______________________________________________________ For Petitioner : M/s. A. P. Bose, D.J. Sahu S. Swain and D. Sahu, Advocates For Opp. Parties : Mr. B. Bhuyan, Sr. Advocate M/s. P.K. Nayak, H.B. Dash A.C.R. Das & K.K. Jena (for O.P.Nos. 1&2) _______________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 20.08.2025

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SASHIKANTA MISHRA, J.

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The petitioner in present writ petition assails

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the order dated 19.01.2023 passed by learned Civil Judge,

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Page 1 of 17

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Senior Division, Jharsuguda in C.S. No. 81 of 2016 in rejecting her application for amendment of the plaint. Be it noted that the petitioner is the plaintiff having filed the

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suit for partition of the suit schedule properties.

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The facts of the case, briefly stated, are that the

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suit has been filed by the plaintiff for partition of the suit properties basically on the ground that the same are ancestral joint family properties originally belonging to their common ansestor-Hari Sahu. It is the plaintiff’s case that the suit land was originally recorded in the name of Hari Sahu and after his death, the ROR stood recorded in the name of his two sons, Netrananda Sahu (defendant No.5) and Laxman Sahu (father of the defendant Nos.1 and 8) and his daughter, Chitra Sahu (plaintiff) jointly. There was no partition by metes and bound. The suit land was acquired for the Hirakud Dam Project by the Land Acquisition Officer. Hari Sahu died on 05.07.1997 whereupon Iswar Sahu and Tapeswar Sahu (defendant Nos.1 & 2) created a fraudulent document purporting to be a registered Will executed on 03.02.1998 and on such basis managed to mutate the property in their names

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fraudulently. The proforma defendant No.8 Saroj Sahu has filed appeal against the order passed in the mutation proceeding. While the matter stood thus, Ac.7.011 decimals out of the suit land were acquired by the Central Government for Coal mining purposes being handed over to the Mahanadi Coal Field Ltd. (MCL). Notices were issued to defendant Nos. 1 and 2, who are the recorded owners for proving their ownership and to receive compensation. Having come to know about the above, the plaintiff issued notice under Section 80 C.P.C to the Statedefendant (defendant Nos. 3 and 4) but there was no reply. Hence, the suit was filed, inter alia for partition of the suit property among the heirs of Hari Sahu and for declaration of joint title.

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The defendants have appeared and filed their written statement. The defendant Nos. 1 and 2 are contesting the suit by claiming that Hari Sahu, during his life-time executed the Will on 03.02.1989 in their favour, which was registered in presence of witnesses. In the said Will the executant expressed his intention of bequeathing

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the property in their favour. Hari Sahu actually died on

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06.04.1998. After his death, the defendant Nos. 1 and 2 applied for mutation on the strength of the Will, which was allowed by the Tahasildar following all legal procedure. The ROR being thus corrected, defendant Nos. 1 and 2 have been possessing the suit land exclusively by paying revenue to the government. It is their further case that plaintiff along with Laxman Sahu (father of defendant No.1) appeared before the Tahasildar in the mutation case and filed an affidavit voluntarily stating that they had no objection, if mutation is allowed in favour of defendant Nos.1 and 2. Except defendant Nos. 1 and 2, no other party has any right or title over the land and therefore, the MCL authority rightly issued notice to them for receiving compensation.

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The defendant No.6 filed written statement apparently supporting the plaint averments and inter alia stating that defendant Nos.1 and 2 and the other co sharers have sold some portions of the land acquired by the MCL authorities, which is void in the eye of law.

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After completion of pleadings, the plaintiff filed an application for amendment of the plaint under Order

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VI Rule 17 of CPC. In the said application, the plaintiff sought to incorporate the averments relating to compensation money on the acquired land, the sale of some portions of the acquired land by defendant Nos.1 and 2 to some outsiders and regarding apportionment of the compensation amount. The plaintiff also sought incorporation of the prayer to declare the Will dated 03.02.1998 as null and void and that the recording in M.S. Khata No.1100 in favour of defendant Nos.1 and 2 as illegal. Further, a declaration was sought that the compensation money relating to the acquired land is to be divided into three equal parts as per the legal heirs of Laxman Sahu. The plaintiff also sought to add certain documents to the list appended to the plaint. Objections were filed by the defendants Nos. 1 and 2 and 3. The proposed amendment was objected to basically on the ground of being belated and barred by limitation etc. 5. The trial Court rejected the application for amendment by holding that the proposed amendment seeks to incorporate a time barred relief and the facts

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sought to be introduced being new, would change the nature and character of the suit.

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The plaintiff has challenged the impugned order in the present application. This Court, by order dated 05.05.2023 held that the trial court committed error in rejecting the application for amendment. The impugned order was set aside and the amendment was allowed subject to payment of cost to the objecting defendants.

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Defendants Nos.1 and 2 carried the matter to the Supreme Court in SLP(C) No.16353 of 2022. By order dated 26.11.2024, the Supreme Court set aside the order passed by this Court and remitted the matter for fresh consideration in terms of the decision in Revajeetu

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Builders & Developers v. Narayanaswamy & Sons and Others, reported in 2009(II)OLR(SC)815, particularly, referring to paragraphs-58 to 68 thereof.

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This is how the matter was again heard by this

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Court.

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Heard Mr. A.P. Bose learned counsel for the plaintiff-petitioner and Mr. B. Bhuyan learned Senior

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Counsel with Ms. S. Sahu for the contesting defendant Nos.1 and 2-opposite parties.

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Mr. Bose would argue that the proposed

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amendment does not change the nature and character of the suit rather is clarificatory in nature. It does not amount to withdrawal of any admission made in the plaint. The proposed amendment would rather be helpful for the trial court to decide the suit as a whole. Mr. Bose further argues that if the amendment, even though sought for belatedly, is helpful in deciding the real question in controversy and does not cause any prejudice to the other parties and hence, should not be disallowed on technicalities. As regards the question of limitation, Mr.

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Bose argues that even assuming such a question can be raised, the same can also be decided as an issue in the suit or even as a preliminary issue. As regards the bar under Section 26 of the Coal Mining Areas (Acquisition and Development) Act 1957 (in short, the 1957 Act). Mr. Bose would argue that the bar would no longer operate since compensation has already been received and the

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plaintiff’s claim is to recover only a portion out of it, which

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can only be adjudicated by the Civil Court.

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Per contra, Mr. Bhuyan, learned Senior Counsel

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would argue that the suit was filed in the year 2016 whereas the amendment was sought for in September, 2022. The relief sought to be incorporated is barred by limitation being hit by Article 54 of the Limitation Act. Further, Section 17 of the 1957 Act provides that any dispute relating to compensation money or apportionment thereof is to be adjudicated by the Tribunal constituted under the said Act and not by the Civil Court. Section 26 of the said Act bars the jurisdiction of the Civil Court. Both sides have relied upon several judgments in their support, which would be discussed later.

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While remanding the matter to this Court for fresh consideration, the Supreme Court in its order, inter alia, has held as follows :-

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In such circumstances and in view of the decision of this Court, the High Court should consider contentions in terms of the decision in Revajeetu Builders and Developers vs. Narayanaswamy and sons and others 2009 (II) OLR (SC) 815, more particularly by referring to paragraph 58 to 64. It is irrecusable duty of the Court to consider whether allowing such an

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application for amendment would change the nature of the suit especially when such an application was filed long later to the institution of the suit as also after entering appearance.”

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Thus, the decision in Revajeetu (supra) is to be considered at the first instance.

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In Revajeetu (supra), the Supreme Court under

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paragraphs -58 to 64 held as follows:-

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“58. In B. K. Narayana Pillai v. Parameshwaram Pillai & another, a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused.

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59. Setting aside the orders refusing amendment, this Court stated:

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The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in

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cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are 21 (2000) 1 SCC 712 allowed in the pleadings to avoid uncalled for multiplicity of litigation."

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60. In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others22, this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment. WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:

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61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.

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NO PREJUDICE OR INJUSTICE TO OTHER PARTY:

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62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be cause to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.

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63. The Courts have very wide discretion in the matter of amendment of pleadings but court’s power must be exercised judiciously and with great.

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64. In Ganga Bai’s case (supra), this Court has rightly observed:

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“The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary power is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

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Thus, this Court is to first consider whether the proposed amendment is necessary to decide the real controversy between the parties.

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As has been narrated hereinbefore in detail, the plaintiff’s case centers around the nature of the suit property which she claims to be ancestral and joint belonging equally to the three branches of the common ancestor- Hari Sahu. The contesting defendants, on the other hand, claim the property to be their exclusive property on the basis of registered Will supposedly executed by the common ancestor Hari Sahu on 03.02.1998. Reference to the Will has been made under

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paragraph-6 of the plaint.

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In so far as Will is concerned, the plaintiff

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proposes by way of amendment to seek declaration that the same is null and void. From the facts of the case and the rival pleas taken, it is evident that the crux of the dispute lies in validity of the Will. The plaintiff claims that the same was a product of fraud, while the beneficiaries of the Will (Defendant Nos.1 & 2) claim the same to have been validly executed. Further the beneficiaries also claim that the plaintiff had voluntarily admitted the fact of execution of the Will and also waived her objection to the mutation of her land in favour of the contesting defendants before the mutation authority. Either way, the validity of the Will remains the central issue in the suit, which would decide the title or otherwise of the plaintiff over the suit property. It is evident that the plaintiff’s claim of partition can succeed only if she is able to establish her title (1/3rd share) over the suit property, which in turn depends on whether the Will is valid or not. 15. Coming to the question of limitation, the contesting defendants claim that the plaintiff was aware of the execution of the Will at least as on the date of filing of

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the suit, she not having sought for the same to be set aside within three years, i.e., by 2019, such prayer is no longer available in view of Article 59 of the Limitation Act.

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This Court is unable to accept the contention that the declaration sought for with regard to the invalidity of the Will is time barred for the reason that the plaintiff has categorically described the Will as fraudulent in paragraph-6 of her plaint which has been quoted though the consequential relief only was not claimed. So, it is not as if she brought into picture the Will for the first time through the petition for amendment filed in 2022. Depriving her from claiming the consequential relief on the background facts that have already been pleaded by her would be a technical approach. In the case of Revajeetu (supra), the Supreme Court, referring to the case of Ganga Bai v. Vijai Kumar, reported in (1974) 2

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SCC 393 held that the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. This Court would pose a question to itself at this stage. Supposing, the plaintiff succeeds in

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proving that the Will was a product of fraud, the necessary corollary would be validation of her claim of having a share over the property in question, which is basically the subject matter of the suit. Of course, whether she would succeed or not is a matter for trial but her attempt to do so cannot, in the interest of justice be scuttled at the threshold. This Court reminds itself of the ratio decided in Revajeetu (supra) that the basic test, which should govern the court’s discretion in grant or refusal of the amendment is whether it is necessary to decide the real controversy.

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Going further, the claim of the plaintiff of a share in the compensation already received by the contesting defendants flows from validity of her claim over the suit property, which is to be decided, as already stated, on consideration of the Will.

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Sections 17 and 26 of the 1957 Act have been pressed into service by learned Senior Counsel appearing for the contesting defendants. These provisions read as follows:-

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“17. Any compensation payable under this Act may be tendered or paid to the persons interested entitled

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thereto, and the Central Government shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub-section (2).

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(2) If the persons interested entitled thereto shall not consent to receive it or if there be any dispute as to the sufficiency of the amount of compensation or the title to receive it or the apportionment thereof, the Central Government shall deposit the amount of compensation with the Tribunal:

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Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:

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1 [Provided further that every person who claims to be an interested person (whether such person has been admitted to be interested or not) including the person referred to in the preceding proviso shall be entitled to prefer a claim for compensation before the Tribunal:

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Provided also that no person who has received the amount otherwise than under protest shall be entitled to prefer any such claim before the Tribunal.]

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(3) When the amount of compensation is not paid or deposited as required by this section, the Central Government shall be liable to pay interest thereon at the rate of five per centum per annum from the time the compensation became due until it shall have been so paid or deposited.

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26. Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Central Government or the competent authority or any other person is empowered by or under this Act to determine.”

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There can be no dispute that ordinarily the question of compensation including its amount, the title to receive it or apportionment is to be decided by the Tribunal constituted under the Act. The jurisdiction of the civil

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court is barred. Here is a case where compensation has already been quantified and paid. So, the only the question that arises is, whether the plaintiff should have a share of it or not. Now, this would depend on whether she is able to establish her claim of having at least 1/3rd share over the suit property, which in turn depends on the finding regarding validity of the Will. This is not a case of any dispute per se with regard to amount of compensation and its apportionment between the cosharers but one intricately connected to the title of the plaintiff over the property. This aspect obviously cannot be gone into by the Tribunal under the 1957 Act but can only be determined by the civil court.

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From what has been narrated before, this Court finds that the question of validity of the Will having been specifically raised in the plaint, seeking the consequential relief of declaration regarding its validity by way of amendment cannot tantamount to changing the nature of the suit. Further, the real controversy between the parties being intrinsically connected with the validity of the Will, the proposed amendment would be necessary to decide

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the same. There already being specific pleadings with regard to the will, the defendants cannot be said to be prejudiced by insertion of the prayer to declare the same null and void. Thus, applying the tests laid down by the Supreme Court in the judgment cited before, this Court is of the considered view that the court below was not correct in rejecting the application for amendment filed by the plaintiffs.

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For the foregoing reasons therefore, the CMP is allowed. The impugned order is set aside. The court below is directed to pass necessary orders allowing the application of the plaintiff for amendment of the plaint as per the schedule appended to the application subject to payment of Rs.10,000/- as costs to the defendants and proceed thereafter with the suit in accordance with law.

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……..………………….. (Sashikanta Mishra) Judge

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Orissa High Court, Cuttack, The 20th August, 2025/ B.C. Tudu, Sr.Steno Signature Not Verified

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Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cutt ack Date: 20-Aug-2025 19:38:23

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Chitra Sahu v. Iswar Sahu

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Chitra Sahu v. Iswar Sahu

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