Judgement

ALAGIRISWAMI, J.:- This litigation which began in the year 1937 has come up for consideration before us in this appeal and we are not sure that this is the end. In that year one Dhirendra Nath Banerjee filed a suit for partition and allotment of his 3 annas 3 pies share out of 16 annas in 32 villages and a 4 annas share in another village in the Hazaribagh district of Bihar. A preliminary decree for partition was passed in 1939. Appeals against the preliminary decree were dismissed in 1943 and in 1945 the present appellant (he is now dead and his heir has been added as party) purchased Banerjee s share and he was added as a co-plaintiff in 1947. In 1950 the Bihar Land Reforms Act came into force and all these village vested in the State of Bihar on 8-9-1952 in pursuance of a notification issued under that Act. In consequence the State of Bihar was added as a party some time in 1952. A commissioner was appointed to effect a division of properties and he submitted his report in March 1952. In May, 1952 a compromise was entered into among the various parties in the suit. To this consent order the State of Bihar, in whom the properties had vested, was not a party. A final decree was, however, passed in terms of the consent between the parties. There was in these proceedings an application for appointment of receiver. The order appointing a receiver led to an appeal being filed before the Patna High Court wherein that Court observed that "the plaintiff s suit for partition must be held infructuous as he had no right in law now to the properties, including the mines, which were the subject matter of the partition suit, which have all vested in the state". The present appeal is, however, against the judgment of the High Court of Patna in the appeals filed by the various defendants against the final decrees passed in the suit.

2. Along with the appeal, appeals against the orders in certain other petitions were also disposed of by the High Court. It is only necessary to refer to Civil Revision Petition No. 891 of 1958 which the plaintiff filed against the order of the Subordinate Judge rejecting his prayer for amendment of the plaint. In that petition for amendment he had prayed:

(a) That a separate takhta to the extent of the plaintiff s share be prepared with respect to the lands and minerals in possession of the parties to the suit as had been shown in Schedules A, B, C and D of the amendment petition and also the tenancy rights in jirat, bakhast and horticultural lands which had remained in possession of the outgoing proprietors after the vesting of the estate as had been mentioned in Schedule E.

(b) That a decree for mesne profits from the date of the suit till the date of realisation with interest might be allowed; and

(c) That any other relief to which the plaintiff was entitled might also be granted.

In Schedule A the plaintiff gave a description of all the mines which according to him, had been opened and worked by him up to the date of the report of the Commissioner, Sri Kalia, i.e., the 6th March, 1952. Schedule B contained a list of the mines which according to the plaintiff had been worked by him after the date of the Commissioner s report and before the date of vesting of the estate under the Land Reforms Act, i.e. between March and October 1952. In Schedule C the plaintiff mentioned a list of the mines which were in possession of the proprietors of one anna share of the Gaddi Masnodih and who had not compromised with the plaintiff. In Schedule D he mentioned the mines in possession of other co-shares. In Schedule E he referred to all zirat, bakhas and horticultural and homestead lands situated in some villages in touzi No.32 which according to him, had not vested in the State of Bihar and in which new rights under the Land Reforms Act had been created in favour of the ex-proprietors. The learned Subordinate Judge after hearing the parties disallowed the amendment. The High Court rejected that Civil Revision petition