# Shiv Narayan Gupta v. Garib Chandra

- **Citation:** (2025) 5 ILRA 1621
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Matters Under Article 227 No. 4107 of 2024
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-narayan-gupta-v-garib-chandra-53311
- **Pages:** 5

## Headnote

Civil Law-The Constitution of India, 1950Article 227-The Code of Civil Procedure,
1908-Section 151 ---Application for amending
decree was allowed against which Petitioner
filed Civil Revision which got dismissed---Once
there was no denial to the fact that endowment
deed of 1969 stands and was not in possession
of plaintiff, the amendment of preliminary
decree cannot be opposed. Had it been a case
where the plaintiff was in possession of the
endowment deed and had deliberately withheld
the same, then the defendant could have
opposed the amendment to the preliminary
decree and judgment relied upon by him would
have come to his rescue. It is also not denied
that a suit for eviction against the occupier of
endowed property has been instituted on behalf
of Deity in the year 2022. Once such is a
position, the defendant cannot oppose the
amendment of a preliminary decree.
Petition dismissed. (E-15)

List of the cases referred-:

## Text

5 All. Shiv Narayan Gupta Vs. Garib Chandra
1621
respondents under Order VI, Rule
17 C.P.C. as well as order passed by
revisional Court.

26. Writ petition fails and is hereby
dismissed.
----------
(2025) 5 ILRA 1621
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 4107 of 2024
With
Matters Under Article 227 No. 3458 of 2025

Shiv Narayan Gupta ...Petitioner
Versus
Garib Chandra ...Respondents

Counsel for the Petitioner:
Hemant Kumar

Counsel for the Respondents:
Shiv Om Vikram Singh Chauhan

Civil Law-The Constitution of India, 1950Article 227-The Code of Civil Procedure,
1908-Section 151 ---Application for amending
decree was allowed against which Petitioner
filed Civil Revision which got dismissed---Once
there was no denial to the fact that endowment
deed of 1969 stands and was not in possession
of plaintiff, the amendment of preliminary
decree cannot be opposed. Had it been a case
where the plaintiff was in possession of the
endowment deed and had deliberately withheld
the same, then the defendant could have
opposed the amendment to the preliminary
decree and judgment relied upon by him would
have come to his rescue. It is also not denied
that a suit for eviction against the occupier of
endowed property has been instituted on behalf
of Deity in the year 2022. Once such is a
position, the defendant cannot oppose the
amendment of a preliminary decree.
Petition dismissed. (E-15)

List of the cases referred-:

1. S. Satnam Singh & ors. Vs Surender Kaur &
anr. (2009) 2 SCC 562

2. Phoolchand Vs Gopal Lal, 1967 AIR (SC) 1470

3. S. Sai Reddy Vs S.Narayana Reddy, 1991 (3)
SCC 647

4. Prema Vs Nanje Gowda & ors., 2011
Supreme (SC) 510

5. Baliram Atmaram Kelapure Vs Indirabai, 1996
(8) SCC 400

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. These two writ petitions have been
filed by the petitioner assailing the orders
passed by the Court below after the
preliminary
decree
was
prepared
on
31.10.1995 in Partition Suit No.62 of 1995
filed by plaintiff-respondent.

2.
Matter
under
Article
227
No.4107 of 2024 assails the order dated
16.02.2024 passed by the trial Court on
application 45-A2 filed in Final Decree
Case No.2 of 2005 by which the
application filed by plaintiff-respondent for
modification of preliminary decree was
allowed as well as order dated 11.03.2024
passed by District Judge, Banda in Civil
Revision No.6 of 2024 by which revision
filed by the defendant-petitioner against the
aforesaid order was dismissed.

3.
Matter
under
Article
227
No.3458 of 2025 has been filed assailing
the order dated 29.10.2024 passed by Civil
Judge
(Senior
Division),
Banda
on
application (Paper No.171C-2) moved by
defendant-petitioner as well as order dated
1622 INDIAN LAW REPORTS ALLAHABAD SERIES
22.01.2025 passed by Additional District
Judge-I, Banda in Civil Revision No.33 of
2024 dismissing the revision filed by
petitioner and confirming the order of the
trial Court.

4. Facts, leading to filing of present
writ petitions, are that one Mahadi alias
Mahadev had two daughters one Smt.
Sundi and another Smt. Ramiya. Smt.
Sundi became widow at an early age and
had no issue. Ramiya, the real sister of Smt.
Sundi, had two sons Ram Narayan and
Maiyyadeen. Maiyyadeen died issueless
while Ram Narayan had two sons Shiv
Narayan and Garib Chandra, the present
plaintiff and defendant to the suit. After the
death of Ram Narayan, Garib Chandra and
Shiv Narayan inherited equal share in the
properties given in Schedule 'A', 'B', 'C'
and 'D' of the plaint.

5. Garib Chandra, the respondent
filed Original Suit No.62 of 1995 against
Shiv Narayan, defendant-petitioner for
partition of half share in the suit property.
A preliminary decree was prepared on
31.10.1995 declaring that plaintiff and
defendant each had half share in the suit
property.
Plaintiff-respondent,
after
preparation of preliminary decree, moved
an
application
on
19.04.2005
for
preparation of final decree, which was
registered as Final Decree Case No.2 of
2005.

6. It was on 14.03.2018 that
plaintiff-respondent moved an application
45-A2 before the Court concerned for
amending the decree under Section 151
C.P.C. to the extent that Smt. Sundi had
endowed part of the property, given in
schedule 'B' of the plaint, in favour of
Bhagwan Mahavir Swami through an
endowment deed dated 26.02.1969. The
application was allowed on 16.2.2024 and
the decree was amended to the extent of the
property, which was subject matter of
endowment deed dated 26.02.1969. Against
the said order, petitioner filed Civil
Revision No.6 of 2024, which was
dismissed on 11.03.2024.

7. In the meantime, petitioner filed
an application, paper No.171C2, before the
trial Court that the endowment deed dated
26.02.1969 was a nullity as Smt. Sundi had
executed a sale deed in favour of Ram
Narayan, Shiv Narayan and Garib Chandra
on 26.12.1963 and, on the same day, Smt.
Ramiya had executed a sale deed for her
portion of house in favour of Smt. Sundi.
Thus, preliminary decree could not have
been amended as Smt. Sundi did not have
any right to execute endowment deed dated
26.02.1969. The said application was
rejected on 29.10.2024, against which,
Civil Revision No.33 of 2024 was preferred
by the petitioner, which has been dismissed
vide order dated 22.01.2025, hence the
present writ petition.

8. Counsel for the petitioner in both
the writ petitions submitted that application
at the behest of plaintiff-respondent for
amending the preliminary decree was not
maintainable as the endowment deed of
1969 cannot be given effect to as the said
fact was never placed before the trial Court
when the preliminary decree was passed.
He then contended that it was during the
proceedings before this Court that through
counter affidavit, for the first time, the fact
regarding execution of sale deed by Smt.
Sundi and Smt. Ramiya on 26.12.1963 was
brought on record. According to him, if
Smt. Sundi had executed the sale deed in
the year 1963 in respect of her share then
she did not have any right to execute the
endowment deed in the year 1969. He has
5 All. Shiv Narayan Gupta Vs. Garib Chandra
1623
relied upon decision rendered by Hon'ble
Supreme Court in case of Phoolchand vs.
Gopal Lal, 1967 AIR (SC) 1470; S.Sai
Reddy vs. S.Narayana Reddy, 1991 (3)
SCC 647; Prema vs. Nanje Gowda and
Ors., 2011 Supreme (SC) 510; and
Baliram
Atmaram
Kelapure
vs.
Indirabai, 1996 (8) SCC 400.

9. Learned counsel laid emphasis to
the fact that pending final decree, the
shares are liable to be varied on account of
intervening event such as death of a party
or change of law. According to him, the old
event, which had taken place prior to
passing of preliminary decree or institution
of suit, cannot be taken into account.

10. Sri Vishnu Gupta, learned
Senior
Advocate
appearing
for
the
respondent submitted that there is no denial
to the fact that Smt. Sundi had executed an
endowment deed in favour of Bhagwan
Mahavir Swami on 26.02.1969. According
to him, she was the absolute owner in
possession of the property when the
endowment was made in respect of the
shop in question. The document was not in
possession of the plaintiff-respondent and,
for the first time, it came into the
knowledge of respondent on 07.09.2017
from one of the old tenant Mohd. Aziz
Ansari, and thereafter application, Paper
No. 45-A2, was moved. Further, Original
Suit No.244 of 2022 has already been filed
on behalf of Deity for possession of
endowed property against the occupier of
the property. According to him, once the
endowment was made, the ownership
transferred to Deity, which cannot be part
of the partition decree. He has placed
reliance upon a decision of Apex Court
rendered in case of S.Satnam Singh &
Ors. vs. Surender Kaur & Anr. (2009) 2
SCC 562.
11. I have heard the respective
counsel for the parties and perused the
material on record.

12. It is an admitted case to both
the parties that they have succeeded to the
property of late Ram Narayan. Both
plaintiff and defendant are entitled to half
share in property of Ram Narayan. There is
also no dispute as to the fact that Smt.
Sundi and Smt. Ramiya were real sisters.
Both the plaintiff and defendant are the
grandsons of Smt. Ramiya. On 26.12.1963,
two sale deeds are alleged to have been
executed, one by Sundi in favour of Ram
Narayan, Shiv Narayan and Garib Chandra
and another by Smt. Ramiya for part of
southern portion of the house in which she
was residing, in favour of Smt. Sundi. It is
also not in dispute that a registered
endowment deed was executed by Smt.
Sundi on 26.02.1969 in favour of Bhagwan
Mahavir Swami. The deed still holds good
and has not been cancelled or annulled by
any Court of law.

13. From perusal of endowment deed,
brought on record, it transpires that Smt.
Sundi, during her lifetime, had got constructed
one temple in the city of Banda where idol of
Bhagwan Mahavir Swami along with other
Deity were installed. She had endowed the
shop in question to the Deity so that expenses
of the temple are met out from the rent realized
from the shop. During her lifetime, she was
also the Manager of the temple.

14. Once an endowment is made to
a Deity, ownership stands transferred to the
Deity and unless and until the endowment
is set aside, the Deity remains the owner of
endowment so made.

15. In the instant case, the partition
suit was filed in the year 1995 and a
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
preliminary
decree
was
prepared
on
31.10.1995 holding that plaintiff and
defendant had one-half share each. It is
only when the deed of 1969 surfaced that
an
amendment
was
sought
in
the
preliminary decree, which was allowed by
the trial Court and confirmed by the
revisional Court.

16. Coming to legality of the order in
question, a cursory glance to the provision of
Section 97 C.P.C. is necessary, which provides for
an appeal against a preliminary decree. The said
provision does not bar for any application for
amendment of a decree. In the decision cited by
petitioner,
Hon'ble
Supreme
Court
in
Phoolchand (supra) has clearly laid down that in
a partition suit, a preliminary decree can be
amended if an event transpires. There was no bar
for drawing a fresh preliminary decree. In the said
case, one of the parties had died and question
arose as to the share which was redrawn. The
Apex Court held that shares can be varied.

17. Similarly, in S. Sai Reddy
(supra), the Apex Court held that the
shares are liable to be varied on account of
intervening events. The same view was
reiterated in Prema (supra) where the
Apex Court provided that if. in the
interregnum. any party to the partition suit
dies, then his/her share is required to be
allotted to surviving parties.

18.
In
Baliram
Atmaram
Kelapure (supra), the Apex Court while
noting the fact that though Section 97
C.P.C. provides for an appeal against a
preliminary decree, but the Court found
that the application for amendment of a
decree was not barred.

19. In S. Satnam Singh (supra),
the Court also took similar view and held
as under :-

"20. Indisputably, section 97 of
the Code of Civil Procedure provides for
an appeal against preliminary decree but
the said provision, in our opinion, would
not be a bar to file an application for
amendment of a decree.

21. The Court may not have a suo
motu power to amend a decree but the
same would not mean that the Court cannot
rectify a mistake. If a property was subjectmatter of pleadings and the Court did not
frame an issue which it ought to have
done,it can, at a later stage, when pointed
out, may amend the decree.

22. The power of amendment, in a
case of this nature, as noticed hereinbefore,
would not only be dependent upon the
power of the Court but also the principle
that a Court shall always be ready and
willing to rectify the mistake it has
committed."

20. The case law placed by both the
parties relate to intervening events, which
had taken place after the preliminary decree
was prepared and the case for final decree
was pending, where the Court had allowed
the amendment of preliminary decree on
the ground that intervening event had taken
place.

21. These judgment does not
restrict the power of the Court to amend
preliminary decree in case it is found that
amendment was necessary to do complete
justice between the parties. In the instant
case, the registered endowment deed of
1969 surfaced in the year 2017 which was
brought to the notice of the Court through
an application filed in the year 2018. The
objection raised by the petitioner's counsel
cannot be sustained to the effect that only
the intervening event can be taken note of
and not those event, which had taken place
prior to filing of partition suit or passing of
5 All. UPPCL Vs. Sunita Verma & Ors.
1625
preliminary decree, which were not
within the control and knowledge of the
parties. The provision of Section 97 C.P.C.
or interpretation of the said provision by
Hon'ble Apex Court does not restrict the
power of the trial Court to amend the
preliminary decree in case it necessitates to
do justice between the parties.

22. In all the cases, referred above,
only the intervening event had taken place,
which was sought to be amended in the
preliminary decree, which the Court had
allowed and held that such intervening
event can be taken note of and preliminary
decree may be amended. The Court has
never restricted for any event which was
beyond the control of parties and also not
within its knowledge.

23.
In
the
instant
case,
the
registered endowment deed of 1969 was
not in the knowledge or possession of
either of the parties. The petitioner has not
raised any objection that it was well within
the knowledge of plaintiff-respondent and
he had deliberately concealed the said fact
when partition suit was filed.

24. Once there was no denial to the
fact that endowment deed of 1969 stands
and was not in possession of plaintiffrespondent, the amendment of preliminary
decree cannot be opposed. Had it been a
case where the plaintiff-respondent was in
possession of the endowment deed and had
deliberately withheld the same, then the
defendant-petitioner could have opposed
the amendment to the preliminary decree
and judgment relied upon by him would
have come to his rescue. It is also not
denied that a suit for eviction against the
occupier of endowed property has been
instituted on behalf of Deity in the year
2022. Once such is a position, the
defendant-petitioner cannot oppose the
amendment of a preliminary decree.

25. Considering the facts and
circumstances of the case, I find that no
interference is required in the order
impugned dated 16.02.2024 passed on
application Paper No.45-A2 and order
dated 11.03.2024 passed in Civil Revision
No.6 of 2024. Writ Petition No.4107 of
2024
 fails and is hereby dismissed.

26. As the Writ Petition No.4107 of
2024 has been dismissed, the connected
Writ Petition No.3458 of 2025 also stands
dismissed
as
the
application,
Paper
No.171C-2, moved by the petitioner has
been rejected and also the revision.
----------
(2025) 5 ILRA 1625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.05.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Matters Under Article 227 No. 9547 of 2019

UPPCL ...Petitioner
Versus
Sunita Verma & Ors. ...Respondents

Counsel for the Petitioner:
Vashu Deo Mishra, Abhinav Singh

Counsel for the Respondents:
C.S.C., Madhulika Yadav

Civil Law-The Constitution of India, 1950Article
227
-
The
Legal
Services
Authorities
Act,
1987-Section
22C---
Petition filed challenging the award whereby the
Permanent Lok Adalat has awarded a sum of
Rs.13,15,000/-.to the claimants--- The deceased
was a contractual worker, he would be deemed
to be on a fixed salary, thus, an addition of 40%