Arun Kumar Jha, J. – The present civil miscellaneous petition has been filed by the petitioner for setting aside the order dated 16.09.2019 passed by the learned Sub Judge-X, Bhagalpur in Title Suit No. 175/1995 whereby and whereunder the learned trial court rejected the amendment application dated 09.09.2019 filed by the plaintiff/petitioner under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’).

2. Briefly stated, the facts of the case are that, the petitioner is one of the plaintiffs and he and respondents 2nd set have filed Title Suit No. 175/1995 for declaration of right and title over the suit land with further declaration that defendants/respondents 1st set have no right and title over the said land. Further declaration has been sought that survey entry with regard to said land is not correct and restraining orders against the defendants not to interfere with the possession of the plaintiffs has also been sought. Schedule A of the plaint contains land which is situated at Mauza- Mirachak, P.S.-Barari, Khata No. 132, Khesra No. 259, having an area of 90 decimals in the district of Bhagalpur and the boundary of the same is North Laboo Tanti, South-Damodar Tanti, East- Harni Devi and West- Megho Devi.

3. The plaintiffs case is that suit land was the property of Ex-landlord Naresh Mohan Thakur, who sold the same to the mother of the plaintiff no.1 and the mother purchased the suit land in the name of Chunchun Tanti vide sale deed dated 04.09.1959. At that time, Chunchun Tanti was minor and the purchase was made from the joint family income. Further case of the plaintiffs is that on 17.06.1960, the mother of the plaintiff no. 1 and Chunchun Tanti, after attaining majority, executed a fake sale deed without consideration to one Mantri Mandal. Mantri Mandal was friend of the family of the plaintiffs and after some time, he returned all the lands except this land. The plaintiffs filed the suit claiming their share in the suit land as the mother of plaintiff no. 1 died and Chunchun Tanti also died and his family was not good terms with the plaintiffs. The plaintiffs further claim that the suit land is being used by the plaintiffs and they have been paying rent to the State of Bihar. However, in the entry of the Survey Department, the suit land has been shown in the name of one Fata Mandal, son of Gholtan Mandal. Fata Mandal was said to be the father of Mantri Mandal. The plaintiffs claim that the survey entry is incorrect and the same has been prepared without any basis. The defendants have no interest in the suit land. But they are disputing the right and title of the plaintiffs. The plaintiffs further made averment that the sale deed executed by Chunchun Tanti in favour of Mantri Mandal dated 17.09.1960 and subsequent sale deed by Mantri Mandal in favour of Raj Kumar Mandal dated 10.10.1977 is not binding on the plaintiffs. The defendants have neither title nor possession over the suit land. When the defendants obstructed the possession of the plaintiffs, the present suit has been filed.

4. After service of notice, defendants appeared and denied the statement made in the plaint. The case of the defendants is that on 17.09.1960, the defendants purchased the suit land and mutation was done in their name and rent was being paid to the State of Bihar. Subsequently, survey entry was made in the name of the defendants and the plaintiffs did not challenge the survey entry when the khatiyan was finally published. Further defendants sold the land to one Raj Kumar Mandal on 10.10.1977. It is further submitted that the nature of the land has gradually changed. Initially it was used to manufacturing of bricks and brick-kiln on the suit land had been running for 15 years. Now the land has become ditch and it is being used as pond for rearing fishes.

5. It further transpires that after completion of pleadings, the learned trial court framed the issues and directed the parties to lead