JUDGMENT :

Ajoy Kumar Mukherjee, J. - This revisional application has been filed by the petitioner against the order dated 9th August, 2018 passed by the learned Civil Judge (Junior Division), 6th Court, Alipore in Title Suit No. 81 of 2014.

2. The petitioner herein as plaintiff filed the aforesaid suit inter alia for partition and permanent injunction. The opposite parties herein appeared in the said suit and filed written objection. During pendency of the suit the petitioner filed an application under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the written statement and the opposite parties/defendants filed written objection against the said amendment application. Learned Court below by the impugned order has rejected the prayer for amendment of the plaint filed by the plaintiff.

3. Mr. Debdutta Basu, learned Counsel appearing on behalf of the petitioners submits that the learned Trial Judge committed a grave error in not considering the prima facie case of the plaintiff and has misconstrued and mis-appreciated the case of the plaintiff. Learned Court below failed to consider that in a suit for partition, each co-sharer has share in each and every part of the undivided suit land and the defendant/opposite parties have no right to make any construction as per their own choice and the learned Court below also failed to consider the eminent dander, the plaintiff is likely to face due to forcible construction made over un-partitioned property. Learned Court below also failed to consider that until the Deed was produced before the Court below at the time of recording evidence, there was no scope for the petitioner/plaintiff to verify the executant's LTI (left thump impression) and other factors which can be the subject matter of challenge. Accordingly, plaintiffs have gathered the knowledge about the falsity of the Deed only when it was filed before the Court below during evidence and the period of limitation will start from the date, when it was brought to the notice of the plaintiff and such right to challenge accrued on perusal of the contents of the original Deed.

4. Mr. Sounak Bhattacharya, learned Counsel appearing on behalf of the opposite party No. 1 submits that the defendants in their written statement, which was filed on 16th December, 2014, have categorically stated about the said Deed and accordingly at least from that date the plaintiff has gathered knowledge about the said Deed.

5. In this context he also referred to proviso under Order VI, Rule 17 of the Code of Civil Procedure which provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence the plaintiff could not have raised the matter before the commencement of trial.

6. Here the defendants in the year 2014 had brought within the knowledge of plaintiff about the existence of the said Deed which the plaintiff now seeks for cancellation by way of amendment but plaintiffs did not pray for interrogatories or discovery or inspection to make scrutiny about the Deed and as such the plaintiff has miserably failed to show that he had exercised due diligence in support of his not filing the amendment application before commencement of Trial.

7. He further submits that since the Deed was executed on 13th December, 1965 and it was brought to the notice of the plaintiffs on 16th December, 2014, so the amendment application which was filed on 23rd February, 2018 is hopelessly barred by limitation and the defendants by this time have accrued valuable right and accordingly he has prayed for rejec