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1976 DIGILAW 420 (ALL)

Bhagwan Dutt v. Krishna Kumar

1976-06-21

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated July 16, 1969 passed by Sri S.M. Hasan, Additional Commissioner, Faizabad Division in Appel No. 217/1315 upholding the judgment and decree dated 29.6.68 passed by the revenue Officer, Faizabad in case no. 341/484 under Section 229-B/209, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. Krishna Kumar and Rudra Kumar, respondents no.1 and 2 had filed a suit seeking declaration of their co-sirdari right in plot no. 2061 in village Ajmalpur and praying for the ejectment of the defendant appellant Srimati Sumaga as an unlawful trespasser. The trial court has decreed the suit. The lower appellate court has upheld the judgment of the trial court. Srimati Sumaga has now come up in second appeal before this court. 4. The first of the learned counsel for the appellant is that the lower appellate court has erred in law in not allowing the amendment of the written statement of the appellant with regard to her valuable adhivasi rights on the basis of har cultivatory possession in 1359 Fasli and on the basis of her being a tenant under Section 180 (2), U.P. Tenancy Act. A perusal of the record shows that the appellant in her written statement had taken the plea that she had been in continuous adverse possession of the plot in suit for a long period and had become a sirdar of the land under section 210, U.P.Z.A. and L.R. Act. The trial court had on these pleadings framed issued no 3 as follows "whether the defendant no. 5 Smt. Sumaga is sirdar of the plot in suit?" The trial court held that Srimati Sumaga was entered as kabiz over the plot in dispute from 1370 to 1374 Falsi and that she failed to prove that she was in possession before 1370 Fasli. In the circumstances, the trial court recorded the finding that Srimati Sumaga was not a sirdar of the plot in suit but only a trespasser liable to ejectment. Against the judgment of the trial court Srimati Sumaga filed her first appeal on 5-7-68. In the grounds of appeal also she had taken the grounds no. In the circumstances, the trial court recorded the finding that Srimati Sumaga was not a sirdar of the plot in suit but only a trespasser liable to ejectment. Against the judgment of the trial court Srimati Sumaga filed her first appeal on 5-7-68. In the grounds of appeal also she had taken the grounds no. 2 as follows: "That the learned lower court ought to have held that the suit was barred by time and as such the defendant no. 5 had perfected her right on the basis of adverse possession and become sirdar." Thereafter more than a year later on 16-7-69 she moved an application before the lower appellate court for permission of amendment of her written statement filed in the trial court. This application was rejected by the lower appellate court on the ground that is was very much belated. 5. The learned counsel for the appellant has referred to Nichhalbhai v. Jaswantlal A.I.R. 1966 S.C. 997 at p. 999, in which the Hon'ble Supreme Court has observed as follows: "We shall then proceed to considered the next question whether the High Court was right in allowing the application of the plaintiff for amending the plaint by deleting the words "ane chhe (and have)" in ane chie (i.e. paragraph 2 and the words " and are") in paragraph 3 of the plaint. It was contended by Mr. Purshotam Trikumdas on behalf of the appellants that by allowing the amendment the High Court had permitted the plaintiff to converted the suit into another of a different and inconsistent character. It was submitted by counsel that if the suit was one for severance of joint family status the plaintiff was bound to fail in limine Bombay High Court in (1892) ILR 16 Bom. 29 (FB). It was contended that the plaintiff cannot be allowed to escape this consequence by amending a suit as one for partition by metes and bounds. We do not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "ame chhe (and have)" and the words "ame acche (i.e. and are)" were put in paragraphs 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under 0.6 R.17. We consider that the High Court was right in taking the view that the words "ame chhe (and have)" and the words "ame acche (i.e. and are)" were put in paragraphs 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under 0.6 R.17. Civil Procedure Code by allowing the amendment to be made. It was contended by Mr. Purshotam Tricumdas that the plaintiff was introducing a new case by making the amendment. We do not accept this argument as correct. We have already given reason for holding that even a part from amendment the plaint should be properly construed as asking fro relief for partition by metes and bound and not for severance of joint family status. We are of opinion that the words "ame chhe (and have)", "ame chhea in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistakes of misapprehension on the part of the plaintiff and it was, therefore, a proper case in which the court allowed the plaint to be amended. The reason is that if the amendment is reused the plaintiff may have to bring another suit and the object of the rule for allowing amendment to the paint is to avoid multiplicity of suits." 6. It will be observed that in the above case the amendments allowed by the High Court were minor in nature and did not introduce any new case for the plaintiff. In that present case, however, the amendments sought by the defendant-appellant were extensive in nature and materially changed her case. The application for the amendment of the written statement was made at a very belated stage. The learned Additional commissioner was, therefore., perfectly justified in rejecting the application for amendment. 7. The second contention of the learned counsel for the appellant is that the lower appellant court erred in law in not considering the grounds mentioned in the memo of appeal and its judgment is no judgment in the eyes of law. A reference to the first appeal field by the appellant would show that four grounds were taken by the appellant; firstly, that the trial court erred in holding that the plaintiffs and defendant nos. A reference to the first appeal field by the appellant would show that four grounds were taken by the appellant; firstly, that the trial court erred in holding that the plaintiffs and defendant nos. 1 to 4 were sirdars of the plot in suit; secondly, that the suit was barred by time and he defendant no. 5 has perfected her rights on the basis of adverse possession and had become sirdar; thirdly, that the suit was defective and it was not in respect of the entire holding, and fourthly that the trial court erred not to have given a finding in favour of appellant on the basis of the evidence on record. The learned Additional Commissioner has in his judgment considered all these grounds except the ground that the suit was defective as it was not in respect of the entire holding. This ground has, however, based on a misconception law. The law does not require that a suit for declaration and ejectment should be filed for an entire holding. Supposing the holding consists of a number of plots and only a part of the holding has been trespassed, the suit can very well be filed for ejectment only form that portion of the holding. The law on the point is so well settled that the learned Additional Commissioner did not commit any material error in not considering the ground taken by the learned counsel for the appellant, on this question. Other material grounds have been duly considered and rejected by the learned Additional Commissioner. It cannot be said that the judgment of the learned Additional Commissioner is no judgment in the eyes of law. 8. The third contention of the learned counsel for the appellant is that the finding that the appellant is that the finding that the appellant is in possession since 1370 Fasli and not from before i s highly perverse. The question of perversity of a finding can be judged from the volume as the quality of the evidence produced by both the parties on which the finding is based. Where a finding is based on overwhelming oral and documentary evidence, it cannot be considered to be perverse merely because there may be some evidence to the contrary. Both the courts below have found overwhelming oral and documentary evidence to the effect that the appellant trespassed over the land in suit only in 1370 Fasli. Where a finding is based on overwhelming oral and documentary evidence, it cannot be considered to be perverse merely because there may be some evidence to the contrary. Both the courts below have found overwhelming oral and documentary evidence to the effect that the appellant trespassed over the land in suit only in 1370 Fasli. The khasra of 1370 Fasli shows that her name was entered as kabiz in that year in red ink indicating that possession only commenced in that year. The defendant-appellant did not file any khasra extract for previous years to show that she was in possession in earlier years as well. The only evidence she could produce in her favour was the oral testimony of herself and her witness Krishna Kumar. This evidence is not sufficient to rebut the oral and documentary evidence of the plaintiff-respondents nor can an interference be derived from this that the findings of the courts below are perverses. 9. The last contention of the learned counsel for the appellant is that the plaintiff-respondent has failed to prove his title to the land in dispute and has also failed to prove that the suit is within time. This ground has no force whatsoever. The plaintiff-respondents are recorded as co-sirdars of the land in suit. There is also other substantial oral evidence in their favour. The courts below have rightly held that the plaintiff-respondents had proved their title and also that the suit was within time, as the adverse possession had not continued beyond the period of prescription. 10. The judgment of the courts below are well established on evidence and are sound in law. I find no force in this second appeal and hereby dismiss it.