JUDGMENT
R.H. Zaidi, J.
1. Heard learned counsel for the parties.
2. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 10.1.1977 passed by the Deputy Director of Consolidation.
3. The relevant facts of the case giving rise to the present petition, in brief, are that the dispute relates to Khata No. 169 of village Bhatpurwa Khurd, district Varanasi, for short, the land in dispute. In the basic year, both parties, i.e., the petitioners and Smt. Daulati, widow of Bechan, were recorded over the land in dispute. On the receipt of Form No. 5, issued by the consolidation authorities, the petitioners filed their objections claiming that the land in dispute belonged to them exclusively and that the name of Smt. Daulati was liable to be expunged from revenue papers. It was pleaded that the land in dispute was originally owned by Smt. Mangari, widow of Chauthi, that Smt. Mangarl had two sons, Jokhan and Bechan. who died during the life time of Smt. Mangari, that the name of Smt. Daulati, wife of Bechan, who was alive, was wrongly recorded in the revenue papers and that the petitioners were in adverse possession of the land in dispute. It was also pleaded that Smt. Daulati entered Into an agreement to sell the land in dispute in favour of the petitioners after acquiring bhumidhari rights. She also received from them sufficient sale consideration, but subsequently acting illegally executed baksheeshnama in favour of Smt. Maharani and Smt. Sona but the petitioner continued in possession of the land in dispute. Therefore, It was prayed that the names of contesting respondents be expunged from the revenue papers. The objection filed by the petitioners was contested by the respondents who have denied the case set up by the petitioners and claimed that they were entitled to 1/2 share in the land in dispute. The petitioners thereafter also filed an application for amendment of their objections, mainly, pleading that Smt. Daulati illegally surrendered some land in favour of the Zamindar and also executed a document to that effect. The petitioners thereafter got executed a sale deed from the Zamlndar and became exclusive owners of the land in dispute. Other consequential amendments in the objections were also sought. The amendment application was objected to and opposed by Smt. Daulati. However, the same was allowed by the Consolidation Officer by judgment and order dated 30.6.1976. Challenging the validity of the order passed by the Consolidation Officer, the contesting respondents filed a revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation has reversed the findings recorded by the Consolidation Officer and allowed the revision by his Judgment and order dated 10.1.1977. Hence, the present petition.
4. Learned counsel for the petitioners vehemently urged that the Judgment and order passed by the Deputy Director of Consolidation is wholly illegal and without jurisdiction. It was urged that the Deputy Director of Consolidation has no Jurisdiction to reverse the findings recorded by Consolidation Officer and to allow the revision, therefore, the order passed by the Deputy Director of Consolidation was liable to be quashed. On the other hand, learned counsel for the respondents supported the validity of the order passed by the Deputy Director of Consolidation. It was urged that by means of the amendment the petitioners wanted to set up a wholly new case for which there was absolutely no basis either in the pleadings or otherwise and the same was not necessary for resolving the controversy involved in the case, therefore, the Deputy Director of Consolidation was right in allowing the revision and in dismissing the application for amendment. The writ petition, according to him, has got no force and is liable to be dismissed with costs.
5. I have considered the submissions made by the learned counsel for the parties and also perused the record.
6. It is not disputed that the land in dispute was owned by the common ancestor of the parties, i.e., Smt. Mangari, who had two sons, Jokhan and Bechan. It is also not disputed that Smt. Daulati is the widow of Bechan. Thus, legally she was entitled to 1/2 share in the land
in dispute. Originally, the petitioners have taken pleas of adverse possession and execution of an agreement of sale in their favour by Smt. Daulati but subsequently, they wanted to change their case and to plead that Smt. Daulati has surrendered the land in dispute in favour of Zamindar and from the Zamlndar, the petitioners got executed some document in their favour on the basis of which they claimed that they were sole/exclusive owners/ bhumidhars of the land in dispute. Through the pleas taken by them by amendment, they wanted to set up a new case. The Consolidation Officer allowed the amendment application by passing a cryptic order and permitted the petitioners to set up a new case, which is not permissible under the law. The Deputy Director of Consolidation on a revision filed by the contesting respondents rectified the mistake and rightly allowed the revision and dismissed the amendment application. It is well-settled in law that a new case based upon the facts, which were available to the plaintiff at the time of filing of original plaint but were not pleaded in the original plaint, cannot be permitted to be set up by way of amendment. A reference in this regard may be made to the decisions in Basanti Del v. Vijaya Krushna Patriotic and Ors. AIR 1976 Orl 218 ; Fakir Charan Mohanty v. Krutibas Kar, AIR 1984 NOC 284 and Full Bench decision of Madhya Pradesh High Court in Lazarus CHhlndwara v. Smt. Lavina Lazarus, Indore and Ors., AIR 1979 MP 70 (FB) and also a decision of this Court in Gayatri Devi v. Om Prakash Gautam and Ors., AIR 1985 All 356.
7. It is not pleaded by the petitioners that the facts which were to be pleaded by means of amendment were not in their knowledge at the time when the original objection was filed by them. The Deputy Director of Consolidation after taking into consideration the
entire material on the record rightly held as under :
^^orZeku eqdnesa esa foi{khx.k dh
vksj ls foyEc dk dksbZ dkj.k ugha crk;k x;k vkSj u gh izLrkfor rjehe dk dksbZ
vkSfpR; crk;k x;k A rudhg cukus ds ckn vkSj fo’ks”kdj tc ,d i{k dh ‘kgknr
Hkh lekIr gks pqdh gS rks la’kks/ku Lohdkj djus dk dksbZ vkSfpR; ugha gS A bl
rjehe ls foi{khx.k us fcYdqy u;k okn vk/kkj fy;k gS A ,djkjukek dh ckr lekIr dj
nh x;h gS vkSj nLrojnkjh ,oa cUnkscLr dk vfHkopu fy;k x;k gS ftldh vuqefr ugha
nh tk ldrh A pdcUnh vf/kdkjh us tks vkns’k ikfjr fd;k og =qfViw.kZ gS eSa muds }kjk
O;Dr fd, x, er ls lger ugha gw fuxjkuh esa cy gS A QyLo:i fuxjkuh Lohdkj dh
tkrh gS A pdcUnh vf/kdkjh dk vkns’k fnukad 30-6-1976 fujLr fd;k tkrk gS
foi{khx.k dk rjehe izkFkZuk i= vLohdkj fd;k tkrk gS A lEcfU/kr pdcUnh vf/kdkjh
ds le{k i{kx.k 17-1-1977 dks mifLFkr gksa A**
8. I fullly agree with the view taken by the Deputy Director of Consolidation. The parties cannot be permitted to change their cases by amending their pleadings and set up new cases unless, of course, the amendment is necessary for resolving the controversy involved in the case. The amendment sought by the petitioners in the present case was not necessary for resolving the controversy involved in the case. The findings recorded by the Deputy Director of Consolidation are based on relevant evidence on the record and do not suffer from any illegality or infirmity. The writ petition, therefore, has got no merits, the same fails and is hereby dismissed. The interim order, ff any, granted by this Court is hereby discharged.
9. Since the matter has become very old because of the interim order granted by this Court, the Consolidation Officer, if the work of consolidation is going on in the district otherwise the competent authority, is directed to decide the case expeditiously preferably within a period of two months from the date a certified copy of this judgment is communicated to him.