IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.6095 OF 2011 MOST.KAUSHALYA DEVI AHIYAPUR, MUZAFFARPUR. VERSUS BHIM CHOUDHARY@ AMRENDRA CHOUDHARYNAZIRPUR, POLICE STATION SHEIKHPRA, AHIYAPUR. ---------------------------------- 3. 06.09.2011. The petitioner prays to set aside order dated 3.2.2011, passed by Sub-judge 9, Muzaffarpur in Title suit no. 141 of 2008, whereby he allowed the amendment petition of the plaintiff /respondent U/O 6 Rule 17 CPC seeking amendment in plaint and petition dated 22.9.2010 filed by the defendant/petitioner challenging the maintainability of suit. The petitioner filed Title suit No. 141 of 2008 seeking following reliefs:- A). That on consideration of the facts above the court be pleased to pass decree for specific performance of the contract, for sale of Schedule I property to the plaintiff by the defendant in terms of Mahadanama, dated. 20.11.2006 and 19.10.2007 directing the defendant to execute registered deed of sale with respect to Schedule I property in the name of plaintiff and handing over sale deed or its registration after due endorsement in favour of the plaintiff. B). That an failure of the terms of the decree by the defendant the court be pleased to execute and get registered the necessary sale deed on behalf of the defendant in name of plaintiff according to law and hand over its registration receipt duly endorse in favour of the plaintiff. C). That the cost of the suit be awarded to the plaintiff against the defendant. D). That any other relief or reliefs to which the plaintiff be found entitle may be may be allowed to the plaintiff. 2 The petitioner who is defendant in suit filed written statement. The defendant stated that the two Mahadanamas are not registered as required under section 17 (1)(A) of the Registration Act, 1908 and section 53A of the Transfer of Property Act, 1882. Section 17(1A) of the Registration Act is quoted hereinbelow for easy reference:- (1A). the documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the proposes of the said section 53A. The defendant states that the plaintiff claimed that pursuant to execution of Mahadanama he was given possession over the suit land. In such circumstances, the petitioner stated that suit as framed is not maintainable. The plaintiff who is respondent here in this writ application, filed amendment petition on 22.9.2010 under Order 6 Rule 17 CPC. The plaintiff sought amendment to the plaint to incorporate that possession was not handed over pursuant to execution of Mahadanama by the defendant. The defendant on the other hand filed a petition under Order 7 Rule 11 CPC in which he raised issue of maintainability of the suit. 3 The defendant also opposed the amendment petition. It is true that after amendment in section 17(1)(a) of the Registration Act, 1908 and section 53(A) of the Transfer of Property Act, 1882, a Mahadanama is necessarily to be registered where one claims to have come in possession after execution of such Mahadanama. In absence of registration, the document would have no legal force. Realizing the error, the plaintiff filed amendment petition seeking amendment stated above so as to bring the suit within the parameter of maintainability. It is well settled that a plaintiff can bring such amendment so as to bring the suit within pedigree of maintainability. Furthermore, the amendment would not work out any injustice to the defendant as the latter in his written statement had asserted that he did not hand over possession of land to the plaintiff pursuant to execution of alleged Mahadanama. In my view, the amendment would not cause prejudice to the defendant and would not change the nature of the suit. Issues have also not been framed as yet. I do not find infirmity in the order dated 2.3.2011, passed by the Sub-judge 9, Muzaffarpur in Title Eviction Suit No. 141 of 2008, whereby he allowed the amendment of the plaintiff respondent under 4 Order 6 Rule 17 CPC while rejecting the plea of maintainability raised by the defendant under Order 7 Rule 11 C.P.C. The writ petition is dismissed accordingly. Shashi. (Samarendra Pratap Singh, J.)