The main legal point established in the judgment is that the court has the power to allow amendments to the plaint to prevent the inexecutability of a partition decree.

JUDGMENT :

1. The instant writ petition is filed under Article 227 of the Constitution of India wherein the order dated 02.05.2012 (Annexure-9) passed in Partition Suit No.44 of 2010 by Sub-Judge-VI, Giridih has been questioned by which the petition filed under Order 6 Rule 17 seeking amendment in the plaint stood rejected.

2. The brief facts of the case as per the pleading made in the writ petition, which required to be enumerated, reads as under:

A partition suit was filed on25.03.2010 being Partition Suit No.44 of 2010 before the court of Sub-Judge-I, Giridih by the petitioner/plaintiff against Nakul Hazam, Sukhdev Hazam, Saraswati Devi, Badka Thakur and Chotka Thakur (defendants) and impleading Gangia Devi and Dasia Devi as proforma defendants praying for decree of eight anna in Schedule-A and A-1 of the plaint in favour of the plaintiff alongwith proforma defendants.

It has been stated as under Schedule-A of the plaint description of land comprising of land measuring area of 3.04 acres under Khata no.89 of Village-Parvatpur, P.S.-Gandey, Thana No.-621, District-Giridih including plot nos.1170, 1171 & 1176 besides other plots. Schedule-1 of the plaint comprises of land measuring 0.21 acres of land in plot no.93 under khata no.2 of Village Deopur, Thana No.590, P.S.-Gandey, District-Giridih.

It is the case of the plaintiff as per the pleading in the plaint that the plaintiff and proforma defendants along with defendant nos.1 to 5 are having unity of possession over the property.

The defendants have appeared and filed their written statement disputing the plaintiff’s title over the suit property.

The plaintiff has filed an application under Order 1 Rule 10(2) of the CPC for impleadment of one Pushpa Devi as defendant no.8 which was allowed to be added without objection of the contesting defendants. The plaintiff has again filed one application under Order 1 Rule 10(2) of the CPC for impleadment of certain persons as party defendant nos.9 to 14, who were described as the heirs of the purchases, namely, Gondi Mahto, Mahraj Mahto and Lal Mohan Mahto of the plot nos.1170, 1171 and 1176 admeasuring area of 21 decimals under khata no.89 as described in Schedule-A in the plaint sold to them by registered sale deed no.6382 dated 21.10.1946 executed by Chutan Mahto in favour of the aforesaid purchasers.

According to the petitioner, the sale deed no.6382 dated 21.10.1946 was filed before the court below by the plaintiff separately with the list of document on 30.01.2012. The plaintiff, subsequent to appearance of the defendant who have filed written statement, filed petition under Order 6 Rule 17 of the CPC, appended as Annexure-7 to the petition, whereby and whereunder the prayer has been made for seeking leave of the court below to allow the plaintiff to make necessary amendments to the effect which reads as under :

“Proposed Amendment.

(i) That after para 6, a new para 6A may be added. (6A) That chotu Hazam Son of Teko Hazam, a khatiyani raiyati sold 21 decimals of lands of plot nos.1170 area 12 decimals plot no. 1171 area 3 decimals and plot no.1176 area 6 decimals under khata no.89 of village-parvatpur, P.S.-Gandey, Dist.-Giridih in favour of Gondi Mahato, Maharaj Mahato and Lal Mohan Mahato, all sons of late Prasadi Mahato through a registered deed of sale deed no.6382 dt. 21.10.1946 for valid consideration and put them in actual khas, physical possession over the same. The purchasers paid rents to the then landlord and after vesting of zamindari, they paid rents to the state of Bihar and now Jharkhand and obtained rent receipts for the same.

Gondi Mahato died leaving behind a daughter Deliya Devi, Maharaj Mahato, died leaving behind a son Ram Chandra Mahato and a daughter Shanti Devi, and Lal Mohan Mahato died leaving behind two sons, namely, Rameshwar Verma and Baleshwar Verma and a daughter Tepuri Devi as their legal heirs and successors and the said legal heirs may be added as parties in the suit as they are necessary parties in the su