IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.990 of 2006 DHRUP SHARMA Versus KANAHAIA SHARMA & ORS ----------- 3. 22.10.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order does not suffer from any jurisdictional error, especially when the court below has also noted that there was a clear malafide attempt on the part of the petitioner to in fact replace the entire schedule of the plaint and as incorporated in the preliminary decree. The crucial question, therefore, was who had filed such amendment petition? The court below has also noted that as a matter of fact the petitioner is said to be an adopted son of Raj Kumar Sharma and his original father was one Dharmnath Sharma. It is this Dharmnath Sharma by claiming to be Karinda of the petitioner who had actually filed this application and thus he wanted altogether 36 new plots to be brought within the scope of the final decree by replacing 48 plots which were said to be subject matter of the suit of the family of Raj 2 Kumar Sharma. Obviously Dharma Nath Sharma the natural father and Raj Kumar Sharma, the adopted father had no common interest in the suit property and thus after the suit was decreed to the extent in respect of 48 plots, a clear malafide attempt was made by on behalf of the petitioner to get the whole preliminary decree nullified by changing the entire plots. Counsel for the petitioner has however also referred to the judgment of this Court in the case of Tripurari Mishra vs. Most. Rajpati Devi & ors., reported in 1998(1) PLJR 158, to contend that such amendment in preliminary decree was permissible and accordingly, the court below has committed a jurisdictional error in not permitting the same so. This Court has carefully gone into the ratio of Tripurari Mishra’s case (supra) and would find an absolutely different situation was there in that case inasmuch as certain admitted joint property were not included in the preliminary decree and those admitted property of the joint family were 3 sought to be made subject matter of the final decree. In that respect this Court had held that if there was enough proof to show that any joint family property was left out in the plaint or written statement and later preliminary decree is passed or the property is subsequently acquired from the joint family fund in which the parties have interest the court has power to make partition of other properties in the same litigation at the stage of final decree under Order XX Rule 18 C.P.C., especially when there is no dispute as to the nature of the property being joint. The aforesaid judgment, however, cannot be an authority for the facts of the present nature where there is no issue of inclusion of certain properties rather 48 plots of the partition suit as originally filed are sought to be given complete go bye and new 36 plots are sought to be made subject matter of the final decree which were never part of the plaint or preliminary decree. In that view of the matter, this Court would hold that the ratio laid down in 4 Tripurari Mishra’s case (supra) will not be applicable. That being so, this Court would find that this civil revision application is wholly frivolous and accordingly, the same is dismissed. (Mihir Kumar Jha,J.) Surendra/