The amendment application was allowed as it was filed within the 12-year limitation period under Article 109 of the Limitation Act, allowing the petitioner to challenge the validity of the original documents.

JUDGMENT :

(Manish Kumar, J.)

1. Heard learned counsel for the petitioners, learned Standing Counsel for the State and Sri S.P. Tiwari, learned counsel for the private respondents.

2. The writ petition (MATTERS UNDER ARTICLE 227 No. - 4657 of 2006) was reserved by a co-ordinate Bench of this Court on 08.04.2022 and thereafter, it was released on 30.06.2022.

3. Both these writ petitions are being heard together and they are being decided by this common judgment.

4. Learned counsel for the petitioner has submitted that the deceased petitioner in the present writ petition had inherited the property in question i.e. Gata No. 53-Ja, filed a suit for permanent injunction on 10.04.1998 which has been registered as Original Suit No. 256/1998 (Matadeen @ Mitthu vs. B.N.K.V. Mahavidyalaya and Ors.). The respondents after receiving the notice had filed their written statement on 15.02.1998, claiming the property in question on the basis of sankalp nama (gift deed) dated 21.01.1957 alleged to be executed by the deceased petitioner's father.

5. It is further submitted that the deceased petitioner moved an application for amendment on 13.03.2000 which was allowed by order dated 24.03.2003 and accordingly the plaint was amended adding paragraph 8A and 8B to the effect that the property in question is ancestral and the deceased petitioner being born on 05.04.1948 was minor at the time of alleged gift deed dated 21.01.1957 and the alleged gift deed was never implemented on account of which the property in question continues in the name of petitioner and in his exclusive possession and that he is not bound by the said gift deed.

6. It is further submitted that the deceased petitioner had also moved an application bearing no. 47-Ga-2 seeking direction against the defendants for producing the original alleged gift deed (sankalp nama) which was allowed by order dated 03.09.2001, directing the defendants to produce the original gift deed and sale deed but the defendants did not produce despite repeated direction dated 18.09.2001.

7. It is further submitted that since the defendants failed to produce the original deed after repeated opportunities given by the trial court, hence the photocopies of the alleged gift deed (sankalp nama) and sale deed were not acceptable as evidence as per Order 8 Rule 1A which provides that where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

8. It is further submitted that the trial court framed issues on 07.05.2004 in absence of the original gift deed (sankalp nama) and sale deed. In these circumstances, the deceased petitioner was having an impression that there being no such gift deed/sale deed.

9. The defendants moved an application bearing no. 140-Ga-2 on 04.05.2006 seeking permission to file the original gift deed (sankalp nama) and the sale deed, against which the plaintiff filed an objection on 05.05.2006 on the basis of Order 13 Rule 1 read with Order 8 Rule 1-A of C.P.C., but the trial court allowed the application preferred by the respondents dated 04.05.2006 ignoring the objection filed by the petitioner by order dated 05.07.2006 and giving a finding that no prejudice shall be caused to the petitioner.

10. It is further submitted that the said order dated 05.07.2006 was challenged by the petitioner by filing Civil Revision No. 51 of 2006 before the District Judge but the same was also rejected by judgment/order dated 19.08.2006 on the ground of their being no prejudice to the plaintiff as he has opportunity of controverting the defendant's evidence.

11. Against the said orders passed by the trial court dated 05.07.2006 and the revisional order dated 19.08.2006, the writ petit