JUDGMENT:

S.B. Sinha, J.

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with the judgment and order dated 21.11.2005 passed in CR No.1532 of 2003 by the High Court of Patna whereby and whereunder an order dated 29.8.2003 passed by Subordinate Judge VIII, Ara in Title Suit No.58 of 1990 rejecting an application for amendment of plaint filed by the appellant herein was dismissed

3. Appellant herein is the son of the original plaintiff who filed a suit for declaration of his title and confirmation of possession as also for setting aside a deed of sale executed by the respondent herein. The said suit was filed on or about 21.5.1990. A deed of sale was executed in favour of defendant Nos.1 and 2 on or about 8.3.1990. An application for passing an interim order was filed in the said suit whereupon an order of status quo was passed on 1.6.1990. During the pendency of the said suit, two deeds of sale were executed in favour of third parties on 8.6.1990 and 18.6.1990.

4. The interim order passed by the learned Trial Judge was affirmed by an order dated 9.11.1990. Three Miscellaneous Appeals were filed thereagainst by the respondents. The matters were said to be pending before the District Judge for a long time. However, on or about 11.6.2003, the appellant herein moved an application for amendment to add a new relief in one of the plaints claiming preferential right in respect of the suid property on the premise that the plaintiff was a co-sharer of the lands in suit to the following effect :

"1. That after 1 "Ka" of the plaint one new relief 1 "Kha" may be added. 1Kha That if for any reason if there is any difficulty in granting relief 1 Ka then in that situation decree under Section 22 Hindu Succession Act (preferential right to acquire on same terms and conditions) be granted and the purchaser-defendant be directed that they should execute sale deed of the disputed land in favour of the plaintiff as mentioned in schedule 2, 3, 4 of the plaint and get it registered an if for any reason the new purchaser-defendant are not executing the sale deed nor are getting it registered then in that situation through Court the sale deed may be executed and registered."

Respondents herein, in response thereto raised the following conentions :

"a) The application is not maintainable, the same being mala fide moved with the purpose to linger the trial of the case,

b) The application is frivolous and bogus and the same is barred under law of limitation. Under Article 97 of the Limitation Act, 1963 for enforcement of right of pre-emption the prescribed period of limitation is one year from the date of sale, whereas this suit was filed in the year 1990 and the amendment is sought on this ground in 2003 after about 13 years of the filling of the suit,

c) The proposed amendment seeks to change the entire nature and scope of the suit and also the cause of action,

d) The amendment application is barred under Order II of CPC,

e) The same is barred under law of waiver and acquiescence,

f) That under the gift deed dated 6.9.49 which has attained finality each donees has got separate and defined title over their separate shares of gift property,

g) In the past also the plaintiff has moved several amendment applications and now they are in perpetual habit of moving applications seeking amendment in the plaint,

h) That trial of case has started long back and the application fails to disclosed any reason why the proposed amendment was not carried out in the past."

5. By reason of a judgment and order dated 29.8.2003, the learned Trial Judge dismissed the said application for amendment of the plaint opining that the same, if allowed, would change the nature of the suit. The High Court, by reason of the impugned judgment has affirmed the said view of the learned Trial Judge.

6. Mr. Akhilesh Kumar Pandey, learned counsel appearing on behalf of the appellant, would submit that the learned Trial Judge as also the High Court