JUDGMENT 1. - This is a second appeal by the legal representatives of Chouthmal deceased defendant No. 1 in Civil Original Suit No. 513/64, against the decree of Additional District Judge No. 6, Jaipur City, Jaipur, dated 3rd Nov., *80, reversing the decree of Munsif Jaipur City (West), dated 16th Sept., 69 and decreeing the suit of plaintiff-respondent No. 1 for possession of a portion of the house property marked F.G. & H. in the site-plan. filed along with the plaint, and for an amount of Rs. 50 20, with a right to recover damages at the rate of 5/- per month from the date of the institution of the suit, till the delivery of possession of the said portion of the property by the appellants to plaintiff-respondent No. 1. 2. The facts in brief are that on 17th Dec., 64, plaintiff-respondent Gopali instituted Civil Suit No 513/64, against Chouthmal deceased and Prabhu Narain. It was alleged that Prabhu Narain, father of the plaintiff, was owner of the house-property marked ABCD in yellow colour in the site-plan, filed along with the plaint. Out of this house-property, the houses marked FGH, along with the chowk, Taj and Gokha, were gifted by Prabhu Narain in favour of the plaintiff by a gift-dated dated 29th Jan., 64. which was registered on 4th Feb., 64; and thus, the plaintiff became the owner of the houses marked FGH, along with the chowk etc. It was stated that Chouthmal, defendant No. 1 was the tenant of Prabhu Narain in the houses marked FGH on a monthly rent of Rs. 5/- w.e.f. 2nd Mar., 58, and he had paid rent only upto 1st Dec., 63. It was stated to be an oral tenancy. Defendant No. 1 was intimated of the gift-deed orally by Prabhu Narain, and by operation of law, defendant No. 1 became tenant of the plaintiff Ejectment of defendant No. 1 was claimed on grounds of default and denial of title. In the alternative, the plaintiff based his suit on the basis of a title, in case, the tenancy was held not to be proved. It was stated that the ancestors of Prabhu Narain were the owners of the property marked ABCD, which included the portion marked FGH. There had been a prior litigation between Gangabux. In the alternative, the plaintiff based his suit on the basis of a title, in case, the tenancy was held not to be proved. It was stated that the ancestors of Prabhu Narain were the owners of the property marked ABCD, which included the portion marked FGH. There had been a prior litigation between Gangabux. father of defendant No. 2, and Chander, son of Dalu, who was in occupation of the house-portion of defendant No 2 as tenant, and that suit was decreed in favour of Gangabux, on 1st July, 08. Thereafter, there was a compromise between Gangabux and Chander, and the latter executed a rent-note in favour of Gangabux on Miti Ashad Budi 5 Samvat-1967. After the death of Chander, his widow, Mst. Gora continued to occupy the houses marked FGH as a tenant and she paid rent at the rate of 2 annas and 6 paise per month, and also executed a rent-note on 2nd Mar., 43. Mst. Gora died in the year ' 54; and before her death, she had handed over vacant possession of the house in her occupation to Prabhu Narain. The house-portion marked FGH remained vacant for about four years, and thereafter, they were let out to Chouthmal, defendant No. 1, on a monthly rent of Rs. 5/-, on 2nd Mar., 58. Chouthmal did not pay any rent after 1st Dec., 63. 3. So far as Prabhu Narain defendant No. 2 was concerned, he substantially supported the case of the plaintiff. The suit was contested by Chouthmal, defendant No. 1, by a written-statement, filed on 15th Apr., 65. Chouthmal pleaded that he was not a tenant in the houses marked FGH, and that he had not taken these premises on rent from Prabhu Narain, and had also never paid any rent to him. He asserted that the house-property marked FGH was in his ownership since the time of his ancestors. Prabhu Narain had never been in its possession. It was also stated that Prabhu Narain had also previously filed false case against Mst. Gora, the grandmother of Chouthmal, but, he was not successful in establishing his title. It was also denied that Mst. Gora had vacated this house-property at any time. 4. The trial court held that the plaintiff had failed to establish tenancy of Chouthmal, defendant No. 1, as alleged by her, in the suit-property. Gora, the grandmother of Chouthmal, but, he was not successful in establishing his title. It was also denied that Mst. Gora had vacated this house-property at any time. 4. The trial court held that the plaintiff had failed to establish tenancy of Chouthmal, defendant No. 1, as alleged by her, in the suit-property. On the question of title of Prabhu Narain over the disputed property, the trial court held that although Prabhu Narain had succeeded in the previous litigation with Chander, husband of Mst. Gora, but, that decision was of no avail after Prabhu Narain made Mst. Gora tenant independently of Chander in the year 1952, or at least on Nth Aug., 52, or even before the death, when she did not admit Prabhu Narain to be her landlord. The present suit had been filed 12 years after that denial of Prabhu Naiain's title by Mst. Gora, and it had the effect of ripening of her title by adverse possession and extinguishing the rights of Prabhu Narain. On this ground, the trial court dismissed the suit of the plaintiff even on the basis of title. In view of these findings on Issues Nos. 1 & 4 the plaintiff was non-suited Aggrieved by this decree, plaintiff Gopali filed Civil First Appeal No 253/69, before the District Judge, Jaipur City. This appeal was transferred to the court of ADJ No. 6, Jaipur City, Jaipur, who allowed the appeal on 3rd Nov., 80. The ADJ agreed with the findings of the trial court that the plaintiff had failed to establish that Chouthmal was admitted as tenant in the house-property marked FGH, by Prabhu Narain on 2nd March 58 under any oral tenancy. It may be stated that it had been found by both the courts below that Prabhu Narain had executed and got registered a gift-deed of this property in favour of the plaintiff. So far as the question of title was concerned, the ADJ held that Gangabux, father of Prabhu Narain, was owner of this property and Chander had executed a rent-note (Ex. A/1) in favour of Gangabux. Mst. Gora was the widow of Chander. He found that it was not established that Mat. Gora had paid any rent to Prabhu Narain. It was further held that Mst. A/1) in favour of Gangabux. Mst. Gora was the widow of Chander. He found that it was not established that Mat. Gora had paid any rent to Prabhu Narain. It was further held that Mst. Gora was not the grandmother of defendant No. 1, rather she was father's sister of defendant No. I. and defendant No. 1 only lived with Mst. Gora. In the background of these facts, the ADI held that until and unless Chouthmal defendant No. 1 had independently proved his own adverse possession over the disputed property as against defendant No. 2 and the plaintiff, he could not acquire title to it. Choutmal's independent possession over the disputed property started in the year 1954, and the suit was filed in 1964. Thus, defendant No. 1 did not acquire title to the suit property by adverse possession. Consequently, the first appellate court decreed the suit of the plaintiff for possession as against defendant No. 1 on the basis of title. An amount of Rs. 50.20 was awarded to the plaintiff, and damages at the rate of Rs. 5/- per month was also awarded in favour of the plaintiff from the date of the institution of the suit till defendant No. 1 delivered possession of the property to the plaintiff. Aggrieved by this decree, the legal representatives of Chouthmal deceased defendant have come in second appeal to this Court. 5. Before proceeding further, it may be stated that on behalf of the defendant-appellants, an application under Order 6, Rule 17, CPC, for amendment of the written-statement, was filed in this Court on 26tb July, 1990. It is necessary to decide that application first. It has been stated by the appellants in this application that plaintiff Mst. Gopali had filed the suit for eviction as against Chouthmal deceased on ground of tenancy and in the alternative, for possession, on the basis of title. Chouthmal (deceased) defendant had pleaded in the written-statement that he was owner of the disputed property since the time of his ancestors It was also pleaded by him that Mst. Gora had not executed any rent-note in favour of Prabhu Narain, and that she had been in possession of the property since long, and therefore, had title over the property. Chouthmal (deceased) defendant had pleaded in the written-statement that he was owner of the disputed property since the time of his ancestors It was also pleaded by him that Mst. Gora had not executed any rent-note in favour of Prabhu Narain, and that she had been in possession of the property since long, and therefore, had title over the property. It is alleged that the fact of ownership and possession as claimed by defendant No. 1 (deceased) was so inter-mixed as to also contain the plea of adverse possession. In order to clearly take the plea of adverse possession, the appellants want to add two paras to their written-statement, as stated in the application. By these two paras, the appellants want to insert the pedigree-table of deceased Chouthmal deceased defendant No. 1, in order to show that Ladoo, son of Parasram had been taken in adoption by Chander husband of Mst. Gora. They also want to plead that the appellants have been continuously in possession of the disputed property since the time of their ancestors, and that they have acquired title to it by adverse possession. This application is opposed on behalf of plaintiff Mst Gopali. The plaintiff has stated in the reply to the application that the amendment is mala fide and highly belated. The appellants want to introduce a totally new and inconsistent case of adverse possession. The pedigree sought to be added is in deviation of the statement given by Chouthmal deceased previously that Mst. Gora was his father's sister. Now, the appellants want to state that Ladoo, father of Chouthmal defendant, had been adopted by Chander, husband of Mst. Gora. The plaintiff states that amendment has been sought after 25 years of the filing of the written-statement by (deceased) defendant No. 1. 6. I have given my due consideration to the amendment application and the objections raised on behalf of the plaintiff, against the same being allowed. It is important to note in this case that plaintiff Gopali had alleged in her plaint certain facts. She mentioned that previously Gangabux, father of Prabhu Narain, defendant No. 2, had filed a suit against Chander, for declaration of title; and that suit was decreed in favour of Gangabux on 1st July, 1908. It is important to note in this case that plaintiff Gopali had alleged in her plaint certain facts. She mentioned that previously Gangabux, father of Prabhu Narain, defendant No. 2, had filed a suit against Chander, for declaration of title; and that suit was decreed in favour of Gangabux on 1st July, 1908. She alleged that suit had been decided in favour of Gangabux, there was a compromise between Gangabux and Chander, and Chander had executed a rent-note in favour of Gangabux on Miti Ashad Budi 5 Samvat-1967. The plaintiff further alleged that thereafter, Mst. Gora, widow of Chander also executed a rent-note on 2nd March, 43 in favour of Prabhu Narain defendant No. 2. Then, she proceeded to state that Mst. Gora bad vacated the property in the year 1954. The disputed property remained lying vacant in the possession of Prabhu Narain for four years, and then, they were let out to Chouthmal defendant No. 1 on 2nd March 58. Most of these assertions made by plaintiff Gopali in her plaint have been found by the Munsif, Jaipur City, Jaipur, as not proved. The learned Munsif has said : "The rent-note (Ex. 2) sought to be imputed to Gora does not inspire confidence ....Chouthmal got married in the Government House where Gora lived. That is enough to root the relationship of some nature between Gora and Chouthmal and also to hold that Gora-Chouthmal and Ladu were seen together living on important occasions of life, such as death and marriage-One pull and point to the suggestion that Gora got married Chouthmal into the shop and Ladu died there and another to the fact that all this was in the suit-house of Gora. Looking to the preponderance of the evidence the court feels safe in reposing confidence in the latter .............................and there is ample material to cloth the findings that Gora, the wife of Chander with whom defendant Chouthmal was associated and related was none other than the one who lived in the suit-house. But, this (earlier judgment) loses its value, because, after it, Prabhu Narain made Gora his tenant independently of deceased Chander. Gora in the year 1952 atleast on 14.8.52 and before did not admit Prabhu Narain to be her landlord ............... But, this (earlier judgment) loses its value, because, after it, Prabhu Narain made Gora his tenant independently of deceased Chander. Gora in the year 1952 atleast on 14.8.52 and before did not admit Prabhu Narain to be her landlord ............... There is no rent-note of Chouthmal in favour of the plaintiff or his predecessors in interest or title It is unnatural and peculiar that Prabhu Narain would have conceded to have Chouthmal as his tenant without a rent-note..................... Now remains to be authenticated whether Gora had vacated the suit-premises in the year 1954, and between 1954-58, before being rented out to Choutmal, its possession continued with Prabhu Narain...................This also indicates the court to the view that Gora in fact had never vacated the house in dispute. There did not arise thus any opportunity for Prabhu Narain to re-let it in the year 1958....... The written-statement of Choutmal had no pedigree-table to link him with Gora or her husband and other ascendants, it is essential that such a gloneological tree should have been pleaded and then proved." 7. Thus, the trial court disbelieved the plaintiff's case that the suit-property was let out by Prabhu Narain to Mst. Gora under any rent-note dated 2nd Mar., 43. It was also not accepted that Gora had vacated the suit property in the year 1954, and that its possession remained with Prabhu Narain upto 2nd Mar., 58. Lastly, it was not accepted that the suit-property was let out by Prabhu Narain to Chouthmal (deceased). Payment of rent by Mst. Gora or Chouthmal was also not believed. It was accepted that Chouthmal lived with Mst. Gora and they were married in this very house-property. 8. So far as the first appellate court is concerned, it stated that from the previous judgment dated 1st July, 08 (Ex. A/2), it was clear that Chander was occupying it as a tenant. Gangabux, father of Prabhu Narain had obtained a decree of declaration on the basis of title acquired by him by adverse possession. It was admitted fact that after obtaining the declaratory decree by Ex.2/A, Gangabux did not get possession of the property. It was stated that however, rent-note (Ex.A/1) was got executed later on from Chander on Miti Ashad Budi 5, Samvat 1967, and in view of this rent-note having been executed by Chander, it was not necessary for Gangabux to obtain posses don from Chander. It was stated that however, rent-note (Ex.A/1) was got executed later on from Chander on Miti Ashad Budi 5, Samvat 1967, and in view of this rent-note having been executed by Chander, it was not necessary for Gangabux to obtain posses don from Chander. The first appellate court also disbelieved the plaintiff's case that Mst. Gora had executed any rent-note in favour of Prabhu Narain. It also agreed with the finding of the trial court that Mst. Gora died in this very house property and it remained in her possession till her death. However, the first appellate court held, differing from the trial court that even if it was accepted that Chouthmal was living with Mst. Gora he did not acquire any title by adverse possession, as his adverse possession could not be tagged with that of Mst. Gora, as they both were independent trespassers. 9. One important thing has to be noted in the case. The judgment (Ex. A/2) dated 1st July, 08, was only a declaratory judgment. Admittedly, in this judgment, no decree for possession of the suit property had been passed in favour of Gangabux and as against Chander. Neither the Munsif, Jaipur City, nor the first appellate court has discussed the evidence and has given a categorical finding that the execution of the rent-note (Ex.A/1) on Miti Ashad Budi 5 Samvat 19.57 was proved in the case in order to bring out the possession of Chander as a tenant. On this rent-note, it was necessary to give a categorical finding that the execution of rent-note (Ex. A/1) by Chander was established by evidence In the absence of a categorical finding on this point and in view of the fact that a specific plea of adverse possession was not taken by Chouthmal (deceased) and further in view of the fact that the question of adverse possession has a material bearing to fully and finally decide the real controversy between the parties, I am of the opinion that the amendment sought by the appellants in written-statement should be allowed even at this late stage. It is true that defendant Chouthmal (deceased) could apply for amendment even before the trial court, but, it is well-settled that amendment can be allowed at any stage. It is true that defendant Chouthmal (deceased) could apply for amendment even before the trial court, but, it is well-settled that amendment can be allowed at any stage. Order 6, Rule 17, CPC, clearly provides, that the court may, at any stage of the proceedings, allow either party to alter or amend its pleadings in such a manner and on such terms as may be just, and also such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Prabhu Narain defendant No. 2 and his father Gangabux were out of actual possession from the suit property even prior to the year 1908. The courts below did not give any finding regarding the execution of the rent-note (Ex.A/1) by Chander. They gave concurrent funding that Mst. Gora was not tenant of Prabhu Narain, and that she never vacated the suit-property till her death. They also gave the finding that Chouthmal defendant No. 1 (deceased) lived with Mst. Gora and is in continuous possession after her death in the year 1958; and further that Chouthmal was not tenant of Prabhu Narain. In view of these findings and circumstances, the question of adverse possession assumes importance in the case. Chouthmal defendant had at least pleaded long possession of the suit-property since tie time of his ancestors and had denied the various allegations regarding tenancy of Chander, Mst. Gora and himself. 10. The real question of controversy between the parties is regarding adverse possession. The trial court had even held the suit of the plaintiff to be barred by limitation. The first appellate court accepting the adverse possession of Mst. Gora and Chouthmal, held the suit to be within limitation as the adverse possession of the two independent trespassers could not be tagged. That alone is not sufficient. One has to see the entire possession of Chander as well; and as has already been stated, there is no categorical finding of the courts below that the execution of rent-note (Ex.A/1) by Chander in favour of Gangabux was proved in evidence. So far as the pedigree question is concerned, the court below has itself pointed out that it is always necessary in such circumstances to give pedigree-table. So far as the pedigree question is concerned, the court below has itself pointed out that it is always necessary in such circumstances to give pedigree-table. It is not for me to express any opinion as to the correctness of the pedigree-table, given by the appellants in their application for amendment, filed before this Court. It would be a matter for adjudication by the trial court. 11. As the amendment-application is belated, heavy costs have to be imposed upon the appellants. I, therefore, allow the amendment-application, filed by the defendant-appellants, on 26th July, 90, before this Court, subject to payment of Rs. 500/- as costs by them to plaintiff-respondent No.1. The costs will be paid by the appellants to the plaintiff within a period of one month. In care, the plaintiff does not accept the costs, the appellants would be at liberty to deposit the amount of costs in the court of Munsif, Jaipur City (West), Jaipur, within a period of ten days after the expiry of the period of one month. On the payment or deposit of the costs as aforesaid, the above amendment-application shall stand allowed, and the trial court would permit the appellants to file an amended written-statement incorporating the proposed amendments as set forth in their application presented before this Court on 26th July, 90. The trial court will then frame additional issues as might arise on account of the amended written statement. It would allow the parties to adduce additional evidence on the additional issues which might be framed by the trial court, and thereafter the trial court would decide Civil Original Suit No. 513/64, afresh, in accordance with law. 12. Consequent upon the allowing of the amendment-application, I allow this appeal; set aside the decree of the Additional District Judge No. 6, Jaipur City, Jaipur, dated 3rd Nov., 80; and remand Civil Suit No. 513/64, to Munsif (West) Jaipur City, Jaipur, with the directions that on payment or deposit of the costs-amount, the amendment-application shall stand allowed. In case, the appellants would fail to pay or deposit the amount of costs in the manner directed above and within the time specified above, the second appeal shall stand dismissed with no order as to costs. 13. In case, the appellants would fail to pay or deposit the amount of costs in the manner directed above and within the time specified above, the second appeal shall stand dismissed with no order as to costs. 13. On furnishing a certified copy of the amendment-application by the appellants, the original amendment-application would be returned by the Registry to the appellants' counsel, and the same would be submitted by the appellants before the trial court. The records of the courts below be returned expeditiously to the respective courts.Application and Appeal Allowed. *******