IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9850 of 2010 ====================================================== Bhikhari Mistry S/O Late Tapsi Mistry R/O Vill.- Milki, P.S.- Rohtas, Distt.- Rohtas At Sasaram .... .... Petitioner/s Versus 1. Rampati Mistry S/O Late Fakira Mistry R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 2. Mohan Sharma S/O Rampati Sharma R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 3. Rajbali Sharma S/O Rampati Sharma R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 4. Shyam Sundar Sharma S/O Rampati Sharma R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 5. Dharmu Mistry S/O Late Fakira Mistry R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 6. Dasrath Sharma S/O Dharmu Mistry R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 7. Bhusan Sharma S/O Dharmu Mistry R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 8. Jalandhar Sharma S/O Dharmu Mistry R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 9. Munna Sharma S/O Dharmu Mistry R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 10. Ravi Kant Minor Son Of Dasrath Sharma Through And Under The Guardianship Of His Father And Natural Guardian Dasrath Sharma R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 11. Shashi Kant Minor Son Of Dasrath Sharma Through And Under The Guardianship Of His Father And Natural Guardian Dasrath Sharma R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram 12. Shanesh Kumar Minor Son Of Bhusan Sharma Through And Under The Guardianship Of His Father And Natural Guardian Bhusan Sharma R/O Vill.- Milki, Post & P.S.- Rohtas, Distt.- Rohtas At Sasaram .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Anjani Kumar Sinha-1 For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 4 04-09-2012 The writ petition has been filed for quashing order dated 21.4.2010, passed by the Addl.Munsif 7, Rohtas at Sasaram in Title suit no. 107 of 1998 by which he has Patna High Court CWJC No.9850 of 2010 (4) dt.04-09-2012 2 / 4 2 rejected petitioner’s application dated 9.3.2009 filed under Order 6 Rule 17 C.P.C. r/w Section 151 C.P.C. for formal amendment in his written statement which he had filed in the capacity of defendant no.9, before transposition as plaintiff. Initially respondents no. 1 to 4 filed a suit for partition being Title suit no. 107/2009 in the court of Munsif, Sasaram for ½ share in Schedule ‘ka’ and ‘kha’ of the suit land mentioned in the plaint in which other family members were defendants. By way of amendment they also incorporated 1.30 ½ acres and a Khaparposh house over 4 decimals of land of village Milki purchased from Ram Karan Mistry and his father Patuka Barahi vide sale deed dated 6.6.1943. On 10.2.2004 the original plaintiffs/respondents. No. 1 to 4 filed a petition under Order 23 Rule 1 C.P.C. for withdrawal of the suit. The petitioner/defendant resisted the move of the plaintiffs and filed an application on 6.8.2004 for his transposition as plaintiff. The trial court after hearing the parties Patna High Court CWJC No.9850 of 2010 (4) dt.04-09-2012 3 / 4 3 transposed the petitioner in the category of plaintiff from the category of the defendant on the ground that the substantial question of law arises in the case; whether Schedule A & B land of transposed plaintiff which is part and parcel of Schedule ‘ka’ and ‘kha’ of original plaintiff (Rampati & others) after the death of Ram Karan devolved on transposed plaintiff and whether the same can be subject of partition amongst present defendants. The transposed plaintiff filed an application on 9.3.2009 under Order 6 Rule 17 C.P.C. in the suit at the stage of argument for addition of R.S. plots arising out of C.S.plots on the ground that he was not earlier in know how of it. Defendants opposed the amendment petition on the ground that the same would expand the scope of the suit. The trial court rejected the application of the transposed petitioner on the ground that the amendments were proposed, when the other defendants had already completed their arguments. The court Patna High Court CWJC No.9850 of 2010 (4) dt.04-09-2012 4 / 4 4 further noticed that only at the reply stage, the transposed petitioner has preferred this amendment petition. The court below further found that the proposed amendment would prejudice the case of the defendants. I find that the petitioner had ample time to propose the said amendment, both as defendant no. 9 as well as after being transposed as plaintiff. At this stage of argument, the court has rightly rejected the application for adding further plots to the suit. In this view of the matter I do not find any illegality in the order the trial court. It will be open for the transposed petitioner, if so advised, to bring a separate suit for adding additional plots but in this case he cannot be permitted to do so. The writ petition is dismissed with the aforesaid observations. Shashi. (Samarendra Pratap Singh, J)