Arun Kumar Jha, J.—The petitioners have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 26.10.2018 passed by the learned Sub Judge-XI, Muzaffarpur in Partition Suit No. 541 of 2016 whereby and whereunder the petition, filed on behalf of the plaintiffs/petitioners under Order VI, Rule 17 of the Code of Civil Procedure (in short ‘the Code’) seeking amendment in their plaint, has been rejected.

2. Briefly stated, the facts of the case as it emerges from the record, are that the petitioners are the plaintiffs in Partition Suit No. 541 of 2016 who claimed 1/5th share in the suit property described in Schedule-I of the plaint. One Yadvendra Pratap Shahi was common ancestor of the parties to the suit who had five sons and five daughters. Plaintiff no.1, Ram Ranvijay Pratap Shahi, is one of the sons. It appears from the plaint that Yadvendra Pratap Shahi, in his lifetime, mutually partitioned his properties between his sons and himself through a memorandum of partition dated 31.05.1997 and he died on 15.03.2004. After his death, the share of Yadvendra Pratap Shahi came into possession of their legal heirs. The daughters of Yadvendra Pratap Shahi and their descendants left their shares in favour of sons of Yadvendra Pratap Shahi. In this manner, the share of late Yadvendra Pratap Shahi came into joint possession of the all his sons. Further case of the plaintiffs is that grandmother of plaintiff no.1 had gifted some property to defendant no.1, Kaushlendra Pratap Shahi and Yadvendra Pratap Shahi also gifted some property to his son Raghuvir Pratap Shahi. The plaintiffs demanded fresh partition with regard to properties of joint stock which was declined by the defendants. During pendency of the suit, plaintiffs/petitioners filed a petition under Order VI, Rule 17 read with Section 151 of the Code for amendment in the plaint on 23.03.2018. The prayer for amendment was resisted by defendant no.6/respondent no.6 who filed a rejoinder dated 17.05.2018. Now defendant no.6/respondent no.6 Amrita Shahi is the widow of late Raghuvir Pratap Shahi, one of the sons of Yadvendra Pratap Shahi. The said application for amendment was rejected vide order dated 26.10.2018 by the learned trial court which is under challenge before this Court.

3. Learned senior counsel appearing on behalf of the petitioners submitted that the impugned order is not sustainable as the same has been passed ignoring the facts and the law applicable. The amendments sought for is necessary for the purpose of determining the real question in controversy and to meet the ends of justice and the same ought to have been allowed. Learned senior counsel further submitted that amendments sought to be brought in the plaint are formal in nature. The first amendment is with regard to the fact that after death of Yadvendra Pratap Shahi, the memorandum of partition dated 31.05.1997 could not be acted upon and the entire ancestral property including the personal share of Yadvendra Pratap Shahi remained in joint possession of his legal heirs. Learned senior counsel further submitted that on filing of written statement the plaintiffs inquired about the truth behind the alleged deed of gift dated 07.07.1984 executed by Yadvendra Pratap Shahi in favour of son Raghuvir Pratap Shahi and the claim of title and possession of defendant no.6 over the property of the said gift deed. Subsequent development has also taken place that after death of Yadvendra Pratap Shahi, an agreement was entered into by defendant no.6 and sons of Yadvendra Pratap Shahi and a deed of agreement dated 26.03.2016 was executed wherein defendant no.6 agreed that alleged deed of gift to be treated as formal document having no effect of conferring title and possession to the donee of the gift or his heirs. Learned senior counsel further submitted that the learned trial court wrongly held that the plaintiffs have been trying to challenge a gift deed which is more than thirt