Ganesh Prasad v. Jang Jeet Singh — 1995 DIGILAW 30 (ALL)

JUDGMENT : D. S. Sinha, J. 1. This appeal under Section 100 of the Code of Civil Procedure, 1908, is directed against the decree and judgment dated 19th March, 1991 passed by the Addl. District Judge, Jalaun at Orai in Civil Appeal No. 20 of 1990 reversing the decree and judgment of the Munsiff Jalaun, dated 5th February, 1990 rendered in Original Suit No. 12 of 1984 between the plaintiff-appellants and the defendant-respondents for cancellation of the sale-deed dated 24th January, 1983 executed by the defendant No. 2 hereinafter called the Vendor, in favour of Sri Jang Jeet Singh the defendant-Respondent No. 1, hereinafter called the Vendee, in respect of the property in dispute. 2. The claim of the appellants for cancellation of the sale-deed was founded on the plea that they were the owners of 2/3rd share in the disputed property and the Vendor had no right or title to execute the sale-deed in respect of their share. The claim of the plaintiff-appellants was resisted by the Vendee. He pleaded that the plaintiffs did not have any share in the disputed property. In the alternative, it was pleaded by him that he was a bona fide purchasee for value and without notice of the factum of alleged share of the plaintiffs in the disputed property. Certain other legal pleas besides the plea regarding valuation and court-fees were also set up by the Vendee. The Vendor, who figured as one of the defendants in the suit, admitted the claim of the plaintiff-appellants that they had 2/3rd share in the disputed property. 3. After considering the evidence on record the trial Court found it, as a matter of fact, that the plaintiff, appellant had 2/3rd share in the property in dispute. It also found that the Vendee had due notice of the 2/3rd share of the plaintiff-appellants in the property in dispute and his plea that he was a bona fide purchaser for value and without notice of the share of plaintiff-appellants was untenable. On other issues also the trial court found against the Vendee. Consequently, the trial Court held that the sale- deed to the extent of 2/3rd share of the plain tiff-appellants was illegal and decreed the suit for its cancellation qua 2/3rd share of the plaintiff-appellants. 4. On other issues also the trial court found against the Vendee. Consequently, the trial Court held that the sale- deed to the extent of 2/3rd share of the plain tiff-appellants was illegal and decreed the suit for its cancellation qua 2/3rd share of the plaintiff-appellants. 4. On appeal the first appellate court reversed the decree and judgment of the trial Court and dismissed the suit of the plaintiff-appellants. In support of its decree and judgment, the first appellate court has given following reasons: (i) that the plaintiff-appellants did not approach the court with clean hands inasmuch as they did not put forward their claim for 2/3rd share in the disputed property when they filed the suit and introduced the same by amendment in the plaint at a later stage: (ii) that the suit was collusive, there was collusion between the plaintiff-appellants and the Vendor who were real brothers; and (iii) that the trial Court decreed the suit of the plaintiff-appellants only on the admission of the Vendor in respect of the 2/3rd share of the plaintiff-appellants. After giving its anxious consideration, this Court is clearly of the opinion that none of the reasons given by the first appellate court is tenable, it is well-settled that the amendment in the plaint dates back to the filing of the suit. No doubt the plea of the plaintiff-appellants that they had 2/3rd in the property in dispute and the sale-deed was liable to be cancelled to that extent was introduced by amendment at a later stage but the effect of the amendment is that the plaint will be deemed to have contained the aforesaid plea of the plaintiff-appellants from the date of the institution of the suit. 5. In this connection it will also be relevant to notice that the amendment was allowed by the trail Court vide its order, dated 3rd September, 1985 subject to the payment of Rs: 30 as cost to the Vendee and this order was never challenged by the Vendee, at any stage. In fact, there is an endorsement on the order sheet of the trail Court evidencing the factum of the receipt of the cost on behalf of the Vendee. In fact, there is an endorsement on the order sheet of the trail Court evidencing the factum of the receipt of the cost on behalf of the Vendee. The fact that the Vendee did not challenge the order allowing the amendment coupled with the fact that the cost for allowing the amendment was accepted by or on behalf of the Vendee will have the effect of his acquiescing to the amendment. 6. Thus, the setting up of the claim for 2/3rd share in the property in dispute by the plaintiff-appellants by amendment in the plaint at a later stage could not be justifiable ground either for drawing an inference that they did not approach the court with clean hands or for reversing the decree of the trial Court. The reasoning of collusion between the plaintiff-appellants and the Vendor for setting aside the decree of the trial Court also cannot be upheld. Indeed, the first appellate court has made out a new case of collusion. The Vendee at no stage pleaded collusion between the plaintiff-appellants and the Vendor. Even if there may be any circumstantial evidence pointing collusion between the plaintiff- appellants and the Vendor, it cannot be looked into. It cannot be gain said that in the absence of pleading no amount of evidence can be looked into to sustain any case. 7. The conclusion of the first appellate court that the trial Court decreed the suit merely on the admission of the Vendor that the plaintiff-appellants had 2/3rd share in the disputed property, is factually incorrect. This Court has very carefully scrutinised the judgment of the trial Court. The trial Court has nowhere relied upon the admission of the Vendor for decreeing the suit of the plaintiff- appellants. 8. The first appellate court has dismissed the suit without setting aside the finding of the trial Court to the effect that the plaintiff-appellants had 2/3rd share in the disputed property. It has also not set aside the finding of the trial Court that the Vendee had knowledge about the 2/3rd share of the plaintiff- appellants. The first appellate court could not reverse the decree and judgment of the trial Court without setting aside the said material findings of facts and in doing so it committed serious illegality. It has also not set aside the finding of the trial Court that the Vendee had knowledge about the 2/3rd share of the plaintiff- appellants. The first appellate court could not reverse the decree and judgment of the trial Court without setting aside the said material findings of facts and in doing so it committed serious illegality. The finding of the trail Court that the plaintiff-appellants had 2/3rd share in the property and that the Vendee had knowledge thereof are based on evidence on record, and have not been demonstrated to be perverse. On these findings the trial Court rightly decreed the suit of the plaintiff-appellants for cancellation of the sale-deed to the extent of 2/3rd share of the plaintiff-appellants. In the result, the appeal succeeds and is allowed. The decree and judgment of the first appellate court is set aside and that of the trial court is restored. There will be no order as to costs. Appeal allowed.