IMPORTANT POINT
The legal representative is bound by the defense taken by the original party and cannot make a fresh case in another written statement.

JUDGMENT :

No one appeared on behalf of the respondents despite valid service of notice on them and sufficient opportunities given for their appearance.

2. Heard Mr. J.S. Arora, learned senior counsel for the petitioner.

3. This Civil Miscellaneous Application has been filed under Article 227 of the Constitution of India against the order dated 17.03.2018 passed in Title Partition Suit No. 467 of 2008 by the learned Sub Judge – II, Patna whereby and whereunder the substituted respondent No. 1 has been permitted to adopt another written statement of the original defendant No. 1.

4. Petitioner is the plaintiff who has filed the suit for partition bearing Title Partition Suit No. 467 of 2008 in regard to his 1/3rd share in the property detailed and described in Schedules 1, 2, 3 and 5 of the plaint and 1/2 share in the property detailed and described in Schedule 4 of the plaint. The parties to the suit are successor of the common ancestor, namely, Late Gorakh Nath Singh. Original defendant No. 1, Leela Devi @ Panwati Devi is mother and defendant No. 2 Swami Nath Singh and defendant No. 3 Premranjan Singh are brother of plaintiff/petitioner. Substituted defendant No. 1, Smt. Asha Singh is the sister of the plaintiff.

5. In the suit defendants jointly filed written statement contesting the claim and contentions of the plaintiff/petitioner. The sum and substance of their defence are that Schedule – II, property is self acquired property of original defendant No. 1 (Smt. Leela Devi), Schedule -III property is also property of defendant No. 1 (Leela Devi) and with respect to Schedule – V property there is no contest.

6. The original defendant No. 1, Smt. Leela Devi died and since all her legal representatives were already on the record except the daughter Smt. Asha Singh who was substituted in her place and therefore she became defendant No. 1. Smt. Asha Singh appeared and filed written statement on 30.04.2014 wherein she admitted that Schedule 2 property is the joint family property and not of Smt. Leela Devi. It is also stated therein that she has got no temptation for her share in suit properties and plaintiff of this suit is discharging his duties as brother of this defendant.

7. On 16.05.2017 a petition was filed by respondent No. 1 Smt. Asha Singh stating that she wants to adopt the written statement filed by Smt. Leela Devi the original defendant No. 1 alongwith other defendants on the ground that the plaintiff is suffering from cancer and had to go Mumbai for her treatment and taking advantage of her illness the plaintiff took her signature over several sada papers and impressed her that her share in the property will be safeguarded and when she came to know the fraud committed by plaintiff in filing written statement, she filed the said petition for adopting earlier written statement filed by her mother.

8. The said petition was opposed by the petitioner but learned Court below allowed the petition of respondent No. 1 vide the impugned order dated 17.03.2018.

9. Learned senior counsel for the petitioner submits that the learned court below without appreciating the facts and position of law allowed the respondent No. 1 to adopt the written statement which was earlier filed by original defendant No. 1 Smt. Leela Devi alongwith respondent Nos. 2 and 3 and also without any such prayer by defendant No.1 the trial Court passed order for recalling the order dated 30.06.2014 whereby the earlier written statement filed by the respondent No. 1 was accepted. It is further submitted that the only ground taken by respondent No. 1 for seeking an order of adoption of the earlier written statement filed by her deceased mother was that her signature was obtained by plaintiff-petitioner committing fraud on her. Further, it is submitted that in view of the fact that she has admitted that the earlier written statement filed on her behalf bears her signature then the Court below ought to have held an enquiry and unless the contention of respondent N