Prayag Mahto @ Kurmi vs Yado Kurmi And Ors

The matter was listed on 05.08.2019 and on behest of the prayer made by Mr. M.K. Sinha, learned counsel for the petitioner, the matter was adjourned directing the case to be listed today.

None appears for the petitioner on call.

This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 11.04.2016 passed in Title Suit No.18 of 2002 by the Munsif, Chatra by which one petition for recall of the order dated 06.04.2016 by which the evidence on behalf of the defendants was closed and the second petition filed under Order VI Rule 17 of the Code of Civil Procedure read with Section 151 of the CPC for making amendment in the written statement has been rejected.

The brief facts as per the pleading is that a title suit has been filed by the respondent-plaintiff for decree for declaration of title of the plaintiff over the Schedule 'B' land and delivery of possession and also for declaring the sale deed no.2042 dated 27.04.1979 executed by defendant no.1 in favour of defendant no.2 forged, illegal, sham, inoperative and null and void and for other reliefs.

The petitioner, on being noticed by the trial court, has put his appearance and filed written statement refuting the averment made in the plaint.

The defendant in spite of providing ample opportunity to lead his evidence did not appear, therefore vide order dated 06.04.2016 the evidence on behalf of the defendants was closed.

The defendant thereafter filed a petition under Order VI Rule 17 of the Code of Civil Procedure read with Section 151 of the CPC for making amendment in the written statement.

The trial court having rejected both the petition vide order dated 11.04.2016, present writ petition has been filed.

This Court having gone across the finding recorded in the impugned order wherefrom it transpires that the defendant after putting his appearance has also filed written statement thereafter the trial court has reached to the stage of evidence, the evidence on behalf of the plaintiff was closed 21.12.2015 with direction to the defendant to produce witness.

On 21.01.2016, 16.02.2016, 10.03.2016, 06.04.2016 time petition was filed on behalf of defendant to produce witnesses/evidence and therefore, the trial court has allowed time and while dealing with the petition on 06.04.2016 last chance was given to the defendant to produce evidence on 07.04.2016, however no witness turned up on behalf of the defendant, therefore, defendant witness was closed and the case was fixe for argument. Thereafter the petitioner has filed a petition for recall of the order dated 06.04.2016 but the trial court having considered the petition for recall of the order dated 06.04.2016 but taking into consideration the fact that the petitioner in spite of having been provided ample opportunity to lead evidence by producing witnesses and more so on 06.04.2016 last chance was provided to produce the evidence on his behalf but he failed to do so, therefore, the trial court has rejected the aforesaid petition for recall of the order dated 06.04.2016.

This Court, after going across the reason recorded by the trial court with respect to recall of order dated 06.04.2016, is of the view that it is not the case of the petitioner that he has not been provided opportunity to produce his witness rather three adjournments have been provided and on 06.04.2016 chance by way of last indulgence was provided but even then no witness has been produced, in that view of the matter the trial court has not recalled the order dated 06.04.2016 and as such the trial court has not committed an error warranting interference by this Court in its revisional jurisdiction.

So far as petition dated 11.04.2016 it is evident from the material on record that the suit was dismissed as plaintiff has preferred appeal being Title Appeal No.07 of 2009 against the judgment dated 20.12.2008 and 08.01.2009 whereby and whereunder the judgment passed in the title suit was set aside vide judgment dated 24.04.2015 passed by the District Judge, Ist, Chatra and was remanded to the trial court to decide the case. Further in view of the order dated 24.04.2015 passed by the District Judge, Ist, Chatra in Title Appeal No.07 of 2009.

The matter has proceeded on remand and when the case has reached for final argument the defendant-petitioner herein has filed petition for amendment for making changing in the written statement and certain facts which has been sought for amendment was in the knowledge of the petitioner even at the time of filing of the written statement and therefore, the trial court taking into consideration the reason that the fact which was within the knowledge of the petitioner at the time of filing of the written statement but could not brought on record, has refused to entertain the same and further the fact about the amendment sought for to answer the same in the written statement has been found to be not relevant for the controversy involved between the parties.

This Court after coming across the finding is of the view that the provision of Order VI Rule 17 of the Code of Civil Procedure although provides power to amend the pleading or the written statement at any stage of the suit but if the said fact is relevant for providing adjudication of the suit supported with the valid reason as to what prevented the party in not bringing the fact on record.

It is evident from the petition Order VI Rule 17 of the CPC that the amendment sought for pertains to certain facts, which reads as under:

"PROPOSED AMENDMENT

I. That after end of para No.7 of page No.2 the following sentenced be added-"Moreover, purchasers namely Srimati Jagani Devi, Massomat Urmila Devi, Tribhuwan Dangi, Mahesh Dangi, Pato Devi, Massomat Jaso Devi, who purchased the suit land from the defendant no.1, have not been made party in the suit.

II. That after end of para No.21 page No.9 a new para as"21A" & "21B" be added which are as follows:-

"21A". That the defendant No.1 felling in urgent necessity of money sold the lands of suit khata No.109 plot No.1160 area 0.29 acres bounded as North-Hussaini Mahto and others, South-Niz Kharidar, East-Heeta Mahto, West-Niz Kharidar and after receipt of consideration money executed a sale vide sale deed No.2011 dated 21.05.87 and put possession to her.

Defendant No.1 also felling in urgent necessity money sold the suit land for an area of 4 dec. within plot No.712 under Khata No.109 bounded as North-Bhuneshwar Mahto, Sought-Baiju Kurmi, East-Dhaneshwar Kurmi, West-Shukar Kuarmi and executed sale deed in favour of Massomat Urmila Devi w/o late Umesh Thakur vide sale deed No.3912 dated 15.07.2000 and put her in possession over her purchased land.

Defendant No.1 Prayag Kurmi also felling in need of money sold the land of suit khata No.109 plot No.1180 area 08 dec. out of 16 dec. and after receipt of consideration money executed sale deed in favour of Massomat Puhiya Devi vide sale deed No.2396 datd 30.04.84 and put her in possession over her purchased land. After death of Massomat Puhiya Devi her heirs viz Tribhuwan Dangi, Mahesh Dangi, Paro Devi are in possession.

Defendant No.1 also executed sale deed of the land of khata No.109 plot No.1172 area 07 dec. bounded as North-Bajo Rana, South-Pokhan Mahto and Baldeo Mahto, east-Kurhan Mahto, West-Sarkari Sarak in favour of Ramsewak Thakur, S/o late Deyali Thakur vide sale deed No.1852/1985 thereafter bounded as North-Fagu Mahto, South-Thakuri Mahto, East- Chhathu Mahto and West-Parti Kadim, Ramsewak Thakur also executed sale deed of the aforesaid land in favour of Massomat Jaso Devi vide sale deed No.952 dated 23.03.87 and put her in possession over her purchased land.

"21B" That after purchase, the abovenamed purchasers are in peaceful continuous and uninterrupted possession over their purchased land since the date of purchase of the land within full knowledge of the plaintiffs, but plaintiffs did not make them parties in the suit so the suit is barred by law of limitation and adverse possession also.

Moreover, mutation of the aforesaid purchased land has already been done by the revenue authority in name of above named purchasers after fulfillment of all paraphernalia of mutation & the above named purchasers are paying rent to the State through firstly Itkhori Anchal and now Pathalgada Anchal and getting Govt. rent receipt regularly in their names regularly".

It is evident from the amendment sought for that the petitioner has sought for leave of the trial court to allow him to add certain facts in between the paragraphs to the effect that during pendency of the suit the aforesaid land has been transferred by virtue of the subsequent sale deed in favour of the subsequent purchasers and showing the said subsequent purchaser in peaceful continuous and uninterrupted possession purchased all the said land as has been referred hereinabove that the suit has been filed for declaration and title for declaring the sale deed no.2042 dated 27.04.1979 executed by defendant no.1 in favour of the defendant no.2 to be treated as forged, illegal, sham, inoperative and null and void and not binding upon the plaintiffs and as such the main dispute involved which is of the sale deed no.2042 dated 27.04.1979 to be treated as illegal and the proposed amendment wherein the leave has been sought for about the transfer of the said property by the defendant no.1 and therefore this Court when came to the conclusive finding that subsequent purchaser of the suit land is in peaceful possession nowhere there is determining factor to decide the controversy in between the parties cannot be said to erroneous finding which mean that if the sale deed dated 27.04.1979 will be held to be illegal all the subsequent purchase will also be affected there from and further the petitioner has not disclosed any reason showing the sufficient cause that when the reference of the sale deed which was said to have been executed way back on 30.04.84, 23.03.87 and 09.05.87 all are prior to written statement and were well within the knowledge of the petitioner but even then the same has not been brought on record at the time of filing of written statement that to without showing as to what prevented the petitioner in not bringing the same at the time of filing of written statement and as such the trial court has rejected the petition.

In view of the reason assigned hereinabove that the trial court has committed no error in rejecting the petition filed under Order VI Rule 17 when the case has reached at the stage of final argument, this Court find no reason to interfere with the order impugned

Accordingly, the writ petition fails and is dismissed.