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1987 DIGILAW 225 (MP)

Gambhira v. Rajju Raja

1987-07-29

RAM MURTI RUSTOGI

body1987
JUDGMENT Ram Murti Rastogi, J. l. This second appeal by the plaintiff is directed against the judgment and decree dated 29th January 1974, passed in Regular Civil Appeal No. 2-A/1968 by the learned Additional District Judge Datia, whereby the decree and judgment, dated 13-1-1968, passed in Civil Suit No. 86-A/1965 by the Civil Judge, Class II, Datia, was reversed, where in the plaintiff's suit was decreed. 2. The facts not in dispute are that the suit lands (Khasra No. 371, area 4.22 biswa; Khasra No 520, area 1.80 biswa; and Khasra No. 541, area 42 biswa: situate at village Chakkebu, Tahsil and District Datia) were the Jagir lands of the defendant No.1 Chhatrasal Singh (who is since dead and is represented by his legal representatives before this Court). Chhatrasal Singh was the then Jagirdar of the village. Plaintiff Gambhira, defendant No.1 deceased Chhatrasal Singh and the defendant No.2 Punna were real brothers. Plaintiff Gambhira and defendant No.2 Punna were the tenants of the deceased Jagirdar Chhatrasal Singh in the suit lands. They were dispossessed from the suit lands by the deceased Cbhatrasal Singh in 1950. Within six months of the dispossession, the plaintiff and defendant No.2 Punna had brought two suit for possession under section 9 of the then Specific Relief Act, 1877, being Civil Suits No. 22/1950 and 151/1950 against the deceased Chhatrasal Singh. Both the suits were decreed on 30-4-1951 and 28-2-1951, respectively, restoring possession to them. Upto this stage, there is no dispute on facts. Hereinafter, according to the plaintiff, he and Punna were put in possession of the suit-lands in 1951 in execution of the aforesaid two decrees, whereas the defendant Chhatrasal Singh has controverted it. 3. The case of the plaintiff is that be and the defendant No.2 Punna were in continuous, cultivating possession of the suit- lands upto 1965, when on 20-10- 1965 defendant No.1 deceased Chhatrasal Singh dispcsses6ed them and took forcible possession of the suit-lands. As brother Punna had been won over and was in collusion with defendant Chbatrasal Singh, he was being sued as defendant No.2. The plaintiff filed a suit for recovery of possession under section 6 of the specific Relief Act, 1963. Towards the close of the trial, the plaintiff pleaded perfection of his title by adverse possession by an amendment to his plaint. 4. The plaintiff filed a suit for recovery of possession under section 6 of the specific Relief Act, 1963. Towards the close of the trial, the plaintiff pleaded perfection of his title by adverse possession by an amendment to his plaint. 4. The deceased defendant Chhatrasal Singh denied the plaint allegations and asserted that the decrees in the aforesaid two civil suits were granted in 1951 in favour of the plaintiff because he (Chhatrasal Singh) could not prove that the plaintiff and defendant No.2 Punua had voluntarily surrendered the suit-lends in his favour. It was further pleaded that the plaintiff had been given only paper possession of the suit-lands in 1951 in execution of the two decrees and that the plaintiff bad never been in actual physical possession of the suit-lands. The plaintiff had never perfected his title by adverse possession. Defendant No.2 Punna in a separate written statement supported Chhatrasal Singh and pleaded that the suit-lands were wrongly recorded to be in the possession of himself and the plaintiff in the revenue papers. 5. The trial Court decreed the suit, holding that the plaintiff was dispossessed in 1965 and that he was entitled to be restored the possession of the suit-lands the trial Court did not find the plea of adverse possession in favour of the plaintiff. The defendants perferred appeal which was allowed and the suit was dismissed. The lower appellate Court held that the plaintiff was never in possession of the suit-lands. The plaintiff had obtained only paper possession and not the actual physical possession of the suit lands in 1951. 6. The finding of the lower appellate Court that the plaintiff had obtained only the paper possession of the suit lands in execution of the two decrees afore-mentioned is based on misconception of law and is unsupportable in law. The lower appellate Court appears to be labouring under some confusion regarding the difference between symbolical delivery of possession and the actual delivery of possession in execution of a decree against the judgment debtor. The matter is dealt with under O. 21, R. 35 and R. 36 of the Code of Civil Procedure. The lower appellate Court appears to be labouring under some confusion regarding the difference between symbolical delivery of possession and the actual delivery of possession in execution of a decree against the judgment debtor. The matter is dealt with under O. 21, R. 35 and R. 36 of the Code of Civil Procedure. The legal position and the distinction between actual and symbolical delivery of possession in execution of a decree is very well summed up in- "Jayagopal v. Gulab Chand" [AIR 1974 Orissa 173 (FB) (para 10 at p. 176)] which is as below :- "So far as delivery of possession against the judgment-debtor or any person in occupation on his behalf is concerned, there is no distinction between the two modes of delivery of possession. Law is well settled that as against the judgment-debtor symbolical delivery of possession amounts to actual delivery of possession. In a Full Bench decision of five Judges rendered by the Calcutta High Court in Juggobundhu Mukherjee v. Ramchander Bysack [(1880) ILR 5 Cal. 584 (FB)] their Lordships observed thus: "In the one case, the delivery of the land is to be made by placing the plaintiff in direct possession. In the other, the delivery is effected by the officer of the Court by going through a certain process prescribed by Section 224 (corresponding to order 21, Rule 36 CPC), and proclaiming to the occupants of the property that the plaintiff has recovered it from the defendant. This is the only way in which the decree of the Court, awarding possession to the plaintiff, can be enforced; and as, in contemplation of law, both parties must be considered as being present at the time when delivery is made, we consider that, as against the defendant, the delivery thus given must be deemed equivalent to actual possession. As against the third parties, of course, this symbolical possession (as it is called) would be of no avail; because they are no parties to the proceeding But if the defendant should, after this, again dispossess the plaintiff by receiving the rents and profits, we think that plaintiff would have twelve years from such dispossession to bring another suit. As against the third parties, of course, this symbolical possession (as it is called) would be of no avail; because they are no parties to the proceeding But if the defendant should, after this, again dispossess the plaintiff by receiving the rents and profits, we think that plaintiff would have twelve years from such dispossession to bring another suit. This decision was accepted as laying down good law in Shri Radha Kishan Chanderjee v. Ram Bahadur [AIR 1917 PC 197 (2)] The above statement of law was approved by the Supreme Court in "Manikayala Rao v. Narassimha Swami [ AIR 1966 SC 470 ] 7. From the above, it is clear that in execution of a decree the symbolical delivery of possession amounts to actual delivery of possession. In the instant case, Ext. P-14, dated 28-2-1951, is the warrant of possession and Ext. P-15, 3•6-1951, is the Panchnama of the handing over of the possession of the suit lands to the plaintiff. In face of this and the legal position as enunciated above, the finding of the lower appellate Court about the plaintiff having been given only the paper possession appears to be grossly vitiated and cannot be supported. 8. Relying on "Deorai v. Ramchandra," [19R2 JU 375 (FB)] the appellant's learned counsel Shri Gupta has submitted that under section 41 of the M. B. Zamindari Abolition Act, 1951, a tenant in possession of any holding will be deemed to be a tenant of the State and even if the tenant is ousted by a trespasser, his possession continues. The above-said Full Bench decision had approved a Division Bench decision of this Court reported in "Pancham Singh v. Dhaniram" [1977 JLJ 82]. 9. Though the suit was originally filed only for possession under section 6 of the Specific Relief Act, 1963, by a subsequent amendment to the plaint the suit was based on title by adverse possession. It is common ground that the suit-lands were the Jagir lands of the erstwhile Jagirdar deceased defendant Chhatrasal Singh. The plaintiff was in possession of the suit lands in 1950 when he was dispossessed by the erstwhile Jagirdar Chhatrasal Singh and the plaintiff is said to have been put in possession in 1951 in execution of the decrees passed in the aforesaid two civil suits C. S. No. 22/1950 and C. S. No. 151/1950. The plaintiff was in possession of the suit lands in 1950 when he was dispossessed by the erstwhile Jagirdar Chhatrasal Singh and the plaintiff is said to have been put in possession in 1951 in execution of the decrees passed in the aforesaid two civil suits C. S. No. 22/1950 and C. S. No. 151/1950. The plaintiff was in cultivating possession of the suit lands as a tenant of the erstwhile Jagirdar Chhatrasal Singh. In 1951 came the Madhya Bharat Zamindari Abolition Act, 1951, wherein Pakka tenancy rights were conferred on the tenants and sub tenants. In the background of these facts, an amendment application under O.6, R.17, CPC., for amending the plaint has been filed in this Court on behalf of the plaintiff. By this proposed amendment, the plaintiff-appellant seeks to show that under the Madhya Bharat land Revenue and Tenancy Act, 1950, and the M. P. Land Revenue Code, 1959, he had acquired the rights of a Bhurniswami over the suit-lands. This is merely pleading another source of title to the suit-lands, clarifying and elaborating the legal position between the parties. No new case can be said to be set up. 10. In "Danpal v. Govinda Raja," [AIR 1961 Madras 262] it has been held that "it is permississible for the plaintiff to set up as many roots of title as possible and sometimes they may be even mutually conflicting and inconsistent." 11. In "Nair Service Society v. K.C. Alexander," [ AIR 1968 SC 1165 ], it has been laid down that : “.........Amendment is a discretionary matter and although amendment at a late stage is not to be granted as a matter of course, the Court must bear in favour of doing full and complete justice in the case where the party against whom amendment is to be allowed can be compensated by costs of otherwise. Also the amendment must be one which does not open the case or take the opposite party by surprise" 12. No doubt, the proposed amendment is quite belated and is being prayed for at the stage of second appeal, but it is quite appropriate in the circumstances of the case. If the proposed amendment is refused, a second round of litigation is bound to follow, which is never the policy of law to encourage. For the delay and laches the defendant- respondent can be fairly compensated by costs. If the proposed amendment is refused, a second round of litigation is bound to follow, which is never the policy of law to encourage. For the delay and laches the defendant- respondent can be fairly compensated by costs. From the nature of the proposed amendment it is also clear that no fresh evidence would be necessary. 13. From the above discussion, it is clear that the proposed amendment is necessary for the final adjudication of the controversy between the parties. Hence the application is allowed, subject to payment of costs of Rs.250/- to the defendant- respondent. 14. In the result, the appeal is allowed and the judgment and decree of the trial Court and that of the appellate Court are set side. The case is remanded to the trial Court for a fresh decision according to law. It is directed that the trial Court shall permit the plaintiff to amend his plaint as per his application filed in this Court on 21-2-1984 the defendants shall be entitled to make consequential amendment in the written statement. An issue shall then be framed on the amended pleadings. The parties shall be given an opportunity of hearing. The parties are directed to appear before the trial Court on 28-9-1987. As the matter is long pending, the trial Court is directed to dispose of the suit within four months. The record of the trial Court along with a copy of the plaintiff amendment application be dispatched at once. Costs of this appeal shall be costs in the cause.