Patna High Court
Rang Bahadur Singh vs Dadan Singh on 21 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1515 of 2019
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1. Rang Bahadur Singh S/o Late Bharat Singh resident of village and P.O. and
P.S. Aayer, Dist. Bhojpur.
2. Sanjay Kumar, S/o Late Sidh Nath Singh, resident of village and P.O. and
P.S. Aayer, Dist. Bhojpur.
3. Sunita Singh, D/o Sidh Nath Singh and W/o Shri Sanjay Kumar Singh,
resident of 58, Indira Nagar, Ram Nagari, P.S. Kankarbagh, District- Patna.
4. Anita Singh, D/o Sidh Nath Singh, W/o Shri Anjani Kumr Singh, C.D.A.
Colony, Behind Sheo Mandir, P.O. and P.S., Shastrinagar, Patna.
... ... Petitioner/s
Versus
1. Dadan Singh S/o Vijay Bahadur Singh, resident of village Jaitpur Khurd,
P.O. Jaitpur- Kala, P.S. Bhagwanpur, Dist. Kaimur, Bhabhua.
2. Dhananjay Singh, son of late Bishwanath Singh, resident of village and P.O.
and P.S. Aayer,District- Bhojpur.
3. Mritunjay Singh, son of late Bishwanath Singh, resident of village and P.O.
and P.S. Aayer,District- Bhojpur.
4. Sheo Pujan Singh @ Bhikhari Singh, S/o Late Kapil Muni Singh, resident of
village and P.O. and P.S. Aayer,District- Bhojpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sachchida Nand Singh, Adv.
For the Respondent/s : Mr. Aditya Narayan Singh, Adv.
Mr. Rama Kant Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 21-05-2025
The instant civil miscellaneous petition has been filed
for setting aside the order dated 29.08.2019 by the learned
Additional District Judge-12th, Bhojpur at Ara in Title Appeal
No. 05/2013. whereby and whereunder the learned Appellate
Court rejected the petition dated 10.12.2014 and 05.06.2018
filed by the petitioners for amendment of their plaint of Title
Suit No. 09 of 2001/47 of 2010.
02. Shorn of unnecessary details, the facts of the case
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are that the petitioner no. 1 and the father of petitioner no.2 and
3 were the original plaintiffs of Title Suit no. 09 of 2001 which
was filed for declaration of right and title of the plaintiffs and
defendant 2nd set over Schedule "क" land of the plaint and
respondent 1st set was the defendant 1st set, respondent 3rd
set/respondent no. 4 herein was the defendant 3rd set before the
learned trial court. Apart from declaration of their right, title and
interest over the suit property, the plaintiffs sought injunction
for restraining the defendant 3rd set from going to the suit
property. The suit was decreed in favour of the plaintiffs on
12.12.2012
against which the defendant 3rd set/respondent no. 4
preferred an appeal which is Title Appeal No. 05 of 2013 and
the said appeal has been pending for disposal before the Court
of learned Additional District Judge 12th, Bhojpur at Ara.
Subsequently, an application has been filed by the
plaintiff/petitioners under Order 6 Rule 17 of the Code of Civil
Procedure (for brevity “the Code”) on 10.11.2014 for making
certain amendments in the plaint of Title Suit No. 09 of 2001.
The respondent no. 4/respondent 3rd set filed a rejoinder on
18.04.2015. Further in continuation of the earlier amendment
application, the plaintiff/petitioners filed another application
seeking further amendment on 05.06.2018 and its reply was
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filed by respondent no. 4 on 12.07.2018. Vide order dated
29.08.2019, the learned Additional District Judge-12th, Bhojpur
at Ara dismissed both the amendment petitions and the said
order is under challenge before this Court.
03. Learned counsel for the petitioners submitted that
the impugned order is improper and not sustainable. The learned
1st Appellate Court committed an error when it passed the
impugned order, as the said order has been passed without
consideration of the facts of the case and authoritative
pronouncements of the Hon’ble Supreme Court. The respondent
no. 4 dispossessed the petitioners during pendency of the appeal
and for this reason amendment became necessary to bring the
subsequent facts on record. The learned counsel further
submitted that learned trial court has misconstrued the facts of
the case specially with regard to the application dated
26.08.2009 filed by the petitioners during the pendency of the
title suit. On 26.08.2009, the petitioners filed a petition before
the learned trial court furnishing certain information which was
to the effect that respondent no. 4 had started some construction
over the suit land and the petitioners got the construction
stopped with the help of police. Therefore, the purpose of the
application dated 26.08.2009 was nothing but to bring to the
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notice of the learned trial court the information about conduct of
the defendant 3rd set/respondent no. 4. Learned counsel did not
consider the fact that being aggrieved by the loss in Title Suit
No. 09 of 2001, the respondent no. 4, taking undue advantage of
the absence of the petitioners from the village, on 24.09.2014
broke open the lock of the only room standing over the disputed
land and made some construction there and dispossessed the
petitioner. The learned counsel further submitted that as at the
time of filing of Title Suit No. 09 of 2001, the petitioners were
in possession over the disputed land and for this reason suit was
filed only for declaration of title over the disputed land but due
to subsequent event dated 24.09.2014 whereby the respondent
no. 4 took over the possession of suit land, the petitioners were
compelled to move the application for amendment to
incorporate this fact in their Title Suit. For this purpose, the
petitioners wanted to make amendment with regard to payment
of ad valorem court fee as well as seeking relief of delivery of
possession by the process of Court and also sought restraining
of respondent no. 4 permanently from going over the disputed
land. Learned counsel further submitted that though the learned
1st Appellate Court has taken into consideration the application
dated 26.08.2009 but had failed to consider that in the said
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application the petitioners had mentioned about construction
work of respondent no. 4 being stopped with the help of police
and the respondent no. 4 failed in his attempts. Further the
petitioners nowhere stated in their amendment application that
construction made on earlier occasion by respondent no. 4 was
their construction. The same not only amounts to misconstruing
the facts but also amounts to an error of record. The learned 1st
Appellate Court has further failed to take into consideration that
as the petition under Order 6 Rule 17 of the Code was filed due
to subsequent development and if the amendment was not
allowed, it would result in multiplicity of litigation. The learned
1st Appellate Court also lost sight of the fact that as appeal is
continuation of trial, a petition under Order 6 Rule 17 of the
Code can be entertained even in appellate stage. Learned
counsel further submitted that the learned 1st Appellate court
failed to consider the settled principles of law that decree
follows the possession and when the right, title and interest of
the petitioners have been decided in their favour and the
petitioners had been dispossessed by subsequent act of the
respondent no. 4, than delivery of possession is to be made in
favour of the petitioner. If the amendment petition is not
allowed, the petitioner could not get the relief of recovery of
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possession. But the learned 1st Appellate Court wrongly
rejected the amendment petition on a false assumption that
amendment sought for will change the nature and scope of the
suit because prayer for delivery of possession is not going to
affect the merits of the case and delivery of possession would
come into play only when right, title and interest of the suit
property is decided in favour of the plaintiff/petitioners. As such
there is no question of changing the nature and scope of the suit
by allowing the amendment sought for in the facts and
circumstances of the case. Lastly, the learned counsel submitted
that the learned trial court has not taken into consideration the
several authorities of this High Court as well as the Hon’ble
Supreme Court. The learned counsel relied on the decision of
the Hon’ble Supreme Court in the case of Life Insurance
Corporation Of India Vs Sanjeev Builders Private Limited
reported in 2022 SCC OnLine SC 1128, specially para 70 of the
case in support of his contention. Thus, the learned counsel
submitted that the impugned order is not sustainable and the
same needs to be set aside.
04. Learned counsel appearing on behalf of the
respondent no. 4 submits that there is not infirmity in the
impugned order and the present petition has been filed on
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misconceived grounds. The petitioners were never in possession
of the suit property and have made wrong submission in this
regard. Their contention is falsified by their own petition dated
26.08.2009 wherein they have stated that respondent no. 4 had
been making construction over the purchased land of the
plaintiffs bearing khata no. 109, khesra no. 7986, area four and
half decimal but even at that time, the petitioners did not seek
any amendment. As the respondent no. 4 was in possession from
very beginning, he made the construction. Further in his written
statement, the respondent no. 4 stated that suit property was
joint dwelling house and there was no separation of the share
amongst the co-sharers. It is only for creating evidence that the
petitioners filed the application dated 26.08.2009 but the
petitioners did not seek any injunction against the respondents
but only made prayer to keep the said application on record.
However in their amendment petition dated 10.11.2014 the
petitioners have stated that the respondent no. 4 has entered into
the house of the petitioners but when the petitioners were never
in possession, no question arises of their dispossession and in
the facts and circumstances, the impugned order needs no
interference of this Court.
05. I have given my thoughtful consideration to the
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rival submission of the parties and perused the record.
06. Order 6 Rule 17 of the Code provides for
amendment of pleading at any stage but prior to commencement
of trial and if the amendment could not be moved prior to
commencement of trial, then the parties seeking amendment has
to show that he could not have moved the amendment at any
earlier point of time.
07. In the present case, the petitioner who were
plaintiffs before the learned trial court sought the relief of
declaration over the suit property of Schedule “क” and further
restraining orders against respondent no. 4 for going over the
suit property. Interestingly, no confirmation of possession has
been sought by the petitioners. Further when the defendant 3rd
set/respondent no. 4 filed his written statement, he categorically
took the position that he was in possession of the suit land and
the petitioners have no possession over any part of the suit
property and the khatiyan was prepared in the joint name of the
ancestors of the respondent no. 4. It was incumbent upon the
petitioners to clarify the position at that very time but the
petitioners did not take any steps in this regard. When no
confirmation of possession or recovery of possession was
sought at the time of seeking declaration in title suit, even if a
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decree of declaration of title has been passed in favour of the
petitioners, the same would remain an empty decree. Clouds
hovered over the possession of the petitioners from the very
beginning as filing of application dated 26.08.2009 also shows
that the respondent no. 4 have made some construction over the
suit property and instead of seeking any relief against
respondent no. 4 on this account, the petitioners sat tight over
the matter. Even in their plaint, the petitioners have not stated
about there being any house situated over the suit land and have
stated about respondent no. 4 closing the door in the North side
which was used by the petitioners to go to their land. This also
shows the case of the petitioners regarding their possession even
at the time of filing of the suit was not free from doubts. If the
petitioners failed to seek amendment in their plaint during the
pendency of the title suit, they could not be allowed to seek
amendment in their plaint at the belated appellate stage.
Moreover, when there was no prayer for confirmation of
possession, plea of dispossession during pendency of appeal and
seeking relief of recovery of possession is simply not
permissible.
08. In the facts and circumstances of the case, reliance
placed by the learned counsel for the petitioners on the case of
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Life Insurance Corporation(supra) is not of any help since the
facts are quite different.
09. In the light of the discussion made hereinbefore, I
find no error of jurisdiction on part of the learned 1st Appellate
Court in passing the impugned order. Though the order lacks
reasons in support of the finding, still the impugned order dated
29.08.2019 is a proper order and hence it is affirmed.
10. Accordingly the present civil miscellaneous
petition stands dismissed.
11. Interlocutory application, if any, stands disposed
of.
12. However, it is made clear that this Court has not
expressed any opinion on the merits of the case and
observations made hereinbefore are only for the purpose of the
disposal of the present petition and will not cause prejudice in
the mind of the learned trial court.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR NAFR CAV DATE 20.03.2025 Uploading Date 23.05.2025 Transmission Date N/A