[ad_1]
Jharkhand High Court
Anup Tirkey vs Sanjay Tirkey on 21 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2025:JHHC:19870 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 903 of 2023
Anup Tirkey, aged about 64 years, son of late Filmon Tirkey, resident of
New Garden Siramtoli, P.O. and P.S. Chutia, District-Ranchi, Jharkhand
.....Petitioner
Versus
1. Sanjay Tirkey, son of late Filmon Tirkey, resident of New
Garden Siramtoli, P.O. and P.S. Chutia, District-Ranchi Jharkhand,
2. Deputy Commissioner, Ranchi, P.O.-G.P.O., P.S. Kotwali, District-
Ranchi
....... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. Birendra Kumar, Advocate
For the O.P. No.1 : Mr. Prashant Kr. Shrivastava, Advocate
For the O.P. No.2 : Mr. Rahul Kamlesh, A.C to S.C.-IV
05/Dated: 21/07/2025
Heard Mr. Birendra Kumar, learned counsel for the petitioner,
Mr. Prashant Kr. Shrivastava, learned counsel for the O.P. No.1 and Mr. Rahul
Kamlesh, learned counsel for the O.P. No.2.
2. This petition has been filed under Article 227 of the
Constitution of India for setting aside order dated 10.05.2023 passed by the
learned Civil Judge, (Junior Division), Ranchi in Partition Suit No. 92 of
2012, corresponding to Original Suit (P.S.) No. 447 of 2019 whereby
amendment petition filed by the defendant dated 30.11.2022 has been
allowed by the learned court.
3. Mr. Birendra Kumar, learned counsel for the petitioner submits
that Partition Suit No. 92/2012, corresponding to Original Suit (P.S.) No.
447/2019 was instituted by the plaintiff/petitioner for a preliminary decree
for separating the half share of the plaintiff in the suit land detailed in
Schedule A of the plaint and for appointment of a survey knowing Pleader
Commissioner to curve out the separate takhta of the half share of the
plaintiff and cost of the suit was also prayed. He further submits that all
1
( 2025:JHHC:19870 )
that piece and parcel of land and structure standing thereon over the plot
nos. 44 and 45 marked as Plot Nos. 44 and 45/G having an area of 9 kathas
under Khata No. 49 situated at village Siram (New Garden Siram Toli),
Thana No. 210, P.S. Ranchi now Chutia, District-Ranchi was the subject
matter of the suit. He submits that the suit was admitted and subsequently
the defendant appeared and filed written statement and in para 12 it has
been admitted that defendant is also entitled for half of the share in the
said property. He further submits that thereafter the case proceeded, the
evidence of the plaintiff has been closed and the defendant has started his
evidence and at the fag end of the closure of the trial the said petition
under Order VI Rule 17 has been filed which has been allowed by the
learned court. He submits that learned court however observed in the order
that at belated stage and almost reaching conclusion of the suit the said
petition has been filed inspite of that learned court has been pleased to
allow the petition. He submits that it is well settled that once admission is
there in favour of either of the parties, the admission cannot be allowed to
be withdrawn later on that too the suit is at the stage of conclusion and to
buttress this argument he relied in the case of " Heeralal Vs. Kalyan Mal
and others" reported in (1998) 1 SCC 278. He refers to para para-6 of
the said judgment which is as under:-
"6.In our view, the order passed by the High Court under Section
115, CPC, allowing withdrawal of earlier admissions of defendant nos.1 and
2 in their original written statement about 5 out of 7 items of Schedule -A
properties cannot be sustained. The reason is obvious, so far as Schedule-A
properties were concerned, a clear admission was made by defendant nos. 1
and 2 in their joint written statement in 1993 that 7 properties out of 10
were joint family properties wherein the plaintiff had 1/3rd share and they
had 2/3rd undivided share. Once such a stand was taken, naturally it must
be held that there was no contest between the parties regarding 7 items of
suit properties in Schedule-A. The learned Trial Judge, therefore, was
perfectly justified in framing Issue No.2 concerning only remaining three
items for which there was dispute between the parties. In such a situation
under order XV Rule 1 of CPC the plaintiff even would have been justified in
requesting the court to pass a preliminary decree forthwith qua these 7
properties. The said provision lays down that, where at the first hearing of a
suit it appears that the parties are not at issue on any question of law of
fact, the Court may at once pronounce the judgment'. Even that apart, the
2
( 2025:JHHC:19870 )
defendant-respondents did not think it fit to move any amendment
application for getting but of such admission till the plaintiff moved an
application for appointment of receiver regarding admitted items of
properties. It is only thereafter that the application for amendment was
moved. Learned Trial Judge was right when he observed that even the
grounds made out in the application were not justified. Consequently, there
is no question of taking inconsistent stand which would not have affected
prejudicially the plaintiff as wrongly assumed by the High Court. We also fail
to appreciate how the decisions on which strong reliance was placed by the
learned counsel for the respondents can be of any assistance to him. We
may briefly refer to them”.
4. Relying on the above judgment, he submits that it is well
settled that withdrawal of admission in written statement can only be
explained and cannot be withdrawn through an amendment. He submits
that the said has been withdrawn on the basis of alleged WILL and that
WILL can be only subject matter of the probate and that cannot be a
subject matter of partition. On these grounds, he submits that the
impugned order may kindly be set aside.
5. On the other hand, learned counsel for the O.P. No.1 opposes
the prayer and submits that to avoid the multiplicity of litigation the learned
court has rightly allowed the petition and it is well settled that at any stage
the amendment can be allowed by the learned court and to buttress this
argument, he relied in the case of “Life Insurance Corporation of India
V. Sanjeev Builders Private Limited” reported in (2022) 0 Supreme
(SC) 864. He further relied in the case of ” Kole Oraon and others Vs.
Lodha Oraon and others” reported in 2025 SCC Online 1997. Relying
on the above judgement, he submits that the learned court has rightly
passed the order.
6. Learned counsel for the O.P. No.2 submits that the State is a
formal party and dispute is between the petitioner and O.P. No.1.
7. In view of above submissions of the learned counsel of the
parties, the Court has gone through the record. It is an admitted position
that the Partition Suit was instituted for partition of half of share between
3
( 2025:JHHC:19870 )
the parties and pursuant to notice O.P. No.1 has appeared before the
learned court and in para 12 it is admitted that defendant is entitled for half
of the share. Thereafter suit proceeded . The evidence of plaintiff has been
closed. The evidence of the defendant was at the fag end and trial was
going to be concluded shortly and at that stage a petition under Order-VI,
Rule 17 has been filed by the defendant which has been allowed by the
learned court only on the ground that there is WILL in favour of the
defendant and in view of that he is entitled for the same. In the light of
para 12 of the written statement admission is made about the half share
and on the ground of WILL the said amendment has been sought. Further,
unless WILL is probated that has got no value in the light of Section 213 of
Indian Succession Act. Admittedly, in the application of amendment the
defendant/O.P. No.1 herein was seeking to withdraw the particular
admission made by the defendant in the written statement earlier filed
which has been allowed erroneously. As such the fact was there that entire
nature of the suit will change and the admission made will certainly
prejudice the case of the petitioner/plaintiff.
8. The Judgment relied by the learned counsel for the O.P. No.1 in
the case of Life Insurance Corporation (supra), the guideline has been
made therein and if within the said guidelines any amendment petition is
coming then only that will apply. What has been discussed hereinabove,
the facts of the present case that is not coming within that guidelines.
Further, the reliance made by the defendant in the case of “Kole Oraon
and others” (supra) is concerned, the facts is also otherwise. In that
case finding was there that amendment can settle the lis at once and
amendment was not changing the suit for that reason the said petition was
allowed. The facts of the present case is otherwise.
9. In view of above facts, reasons and analysis the impugned
4
( 2025:JHHC:19870 )
order is not sustainable in the eye of law and accordingly the impugned
order dated 10.05.2023 is set aside. This petition is allowed and disposed
of. Pending I.A, if any, stands disposed of.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/-A.F.R.
5
[ad_2]
Source link