ORDER
M.Y. Eqbal, J.
1. Heard Mr. Amar Kumar Sinha, learned Counsel for the petitioners and Mr. A.K. Sahani, learned Counsel for the respondents.
2. By this application under Article 227 of the Constitution of India the defendants-petitioners have challenged the order dated 9.11.2006 passed by Additional District Judge, Fast Track Court, Palamau at Daltonganj in Title Appeal No. 15 of 2003 whereby he has allowed the petition filed by plaintiff/respondents seeking amendment in the plaint.
3. Plaint/respondents filed aforementioned partition suit for decree of partition claiming l/4th share in the suit property. In the plaint the plaintiffs prescribed themselves as Chero by caste being members of Schedule Tribe. Defendant/petitioners contested the suit by filing written statement mainly on the ground that suit for partition is not maintainable for the reason that under the customary law prevalent amongst the members of Schedule Tribe community neither the daughters nor her sons are entitled to inherit the property of their father or maternal grand father. The trial Court after considering the material on record and the evidence led by the parties dismissed the suit holding that parties are governed by customary law.
4. Aggrieved by the said judgment and decree the plaintiff/appellant filed Title Appeal No. 15/03. In the said appeal petition under Order VI. Rule 17, CPC was filed by the plaintiff/appellant for amendment of the plaint to incorporate the fact that plaintiffs are by caste Chero but they are Hinduise following Hindu religion and are governed by Hindu Law. The sad application was allowed by the lower appellate Court mainly on the ground that the amendment sought for will not change the nature and character of the ease and is necessary for proper adjudication in the matter in controversy.
From perusal of the plaint, it appears That plaintiff/petitioners were not pleaded that they are governed by customary law rather their only pleading is that petitioners are by caste Chero. As matter of fact, defendant’s case was that plaintiffs are by caste Chero and are governed by customary law. Before the trial Court, sufficient evidence came from the mouth of the witnesses of both the parties that although they are by caste Chero but they perform and celebrate all Hindu festivals. In the amendment petition, it was categorically stated by the plaintiffs/ petitioners that no further evidence is to be adduced as because evidence is already on record. I am of the view that the Court of appeal below has rightly allowed the amendment petition filed by the plaintiffs/appellants. I do not find any reason to interfere with the impugned order.
6. For the reasons aforesaid, there is no merit in this writ application, which is, accordingly, dismissed.