A proposed amendment to a plaint can be allowed if it aids in establishing a party's claim and does not fundamentally change the character of the suit, aligning with principles of justice.

JUDGMENT :

SASHIKANTA MISHRA, J.

The petitioner in present writ petition assails the order dated 19.01.2023 passed by learned Civil Judge, Senior Division, Jharsuguda in C.S. No. 81 of 2016 in rejecting her application for amendment of the plaint. Be it noted that the petitioner is the plaintiff having filed the suit for partition of the suit schedule properties.

2. The facts of the case, briefly stated, are that the suit has been filed by the plaintiff for partition of the suit properties basically on the ground that the same are ancestral joint family properties originally belonging to their common ansestor-Hari Sahu. It is the plaintiff’s case that the suit land was originally recorded in the name of Hari Sahu and after his death, the ROR stood recorded in the name of his two sons, Netrananda Sahu (defendant No.5) and Laxman Sahu (father of the defendant Nos.1 and 8) and his daughter, Chitra Sahu (plaintiff) jointly. There was no partition by metes and bound. The suit land was acquired for the Hirakud Dam Project by the Land Acquisition Officer. Hari Sahu died on 05.07.1997 whereupon Iswar Sahu and Tapeswar Sahu (defendant Nos.1 & 2) created a fraudulent document purporting to be a registered Will executed on 03.02.1998 and on such basis managed to mutate the property in their names fraudulently. The proforma defendant No.8 Saroj Sahu has filed appeal against the order passed in the mutation proceeding. While the matter stood thus, Ac.7.011 decimals out of the suit land were acquired by the Central Government for Coal mining purposes being handed over to the Mahanadi Coal Field Ltd. (MCL). Notices were issued to defendant Nos. 1 and 2, who are the recorded owners for proving their ownership and to receive compensation. Having come to know about the above, the plaintiff issued notice under Section 80 C.P.C to the State- defendant (defendant Nos. 3 and 4) but there was no reply. Hence, the suit was filed, inter alia for partition of the suit property among the heirs of Hari Sahu and for declaration of joint title.

3. The defendants have appeared and filed their written statement. The defendant Nos. 1 and 2 are contesting the suit by claiming that Hari Sahu, during his life-time executed the Will on 03.02.1989 in their favour, which was registered in presence of witnesses. In the said Will the executant expressed his intention of bequeathing the property in their favour. Hari Sahu actually died on 06.04.1998. After his death, the defendant Nos. 1 and 2 applied for mutation on the strength of the Will, which was allowed by the Tahasildar following all legal procedure. The ROR being thus corrected, defendant Nos. 1 and 2 have been possessing the suit land exclusively by paying revenue to the government. It is their further case that plaintiff along with Laxman Sahu (father of defendant No.1) appeared before the Tahasildar in the mutation case and filed an affidavit voluntarily stating that they had no objection, if mutation is allowed in favour of defendant Nos.1 and 2. Except defendant Nos. 1 and 2, no other party has any right or title over the land and therefore, the MCL authority rightly issued notice to them for receiving compensation.

The defendant No.6 filed written statement apparently supporting the plaint averments and inter alia stating that defendant Nos.1 and 2 and the other co sharers have sold some portions of the land acquired by the MCL authorities, which is void in the eye of law.

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