Om Narayan Singh v. Shailendra Singh Alias Shivji Singh
1998-12-07
M.Y.EQBAL
body1998
DigiLaw.ai
Judgment M.Y.Eqbal, J. 1. This civil revision application is directed against the order dated 1.8.1997 passed by the Subordinate Judge IV, Bettiah in Title Suit No. 120 of 1994 by which he has allowed the prayer made by the plaintiff for amendment of the plaint. 2. The plaintiffs-opposite parties instituted the aforementioned suit for a decree of permanent injunction restraining the defendant and his men from interfering in the management and other agricultural operation of the plaintiffs with respect to the suit land. The plaintiffs case, inter alia, is that the defendant was holding a power of attorney in his favour executed by the principal owners. Shri Markendaya Singh, Shri Prabhu Nath Singh, Shri Ram Sakal Singh and Aditya Narain Singh and Ram Surat Singh, but in the garb of power of attorney he was mis-managing the account with malafide motive and as such the above noted persons cancelled the power of attorney vide a registered deed of cancellation dated 16.11.1994 and then the said person executed a general power of attorney in favour of the plaintiff on 17.11.1994. The plaintiffs further case is that since he is holding the power of attorney the defendant and his men be restrained from interfering with the management of the plaintiff over the suit property. It appears that on the prayer made by the plaintiff the original owner of the suit property then made plaintiffs 2 to 7. The suit was contested by the defendant by filing written statement stating, inter alia, that the plaintiffs No. 1 got forged and fabricated power of attorney in his favour showing its execution on 17.11.1994 and on the basis of the same he is claiming himself as a general power of attorney-holder. The defendant further denied cancellation of power of attorney on the plea that no communication was made to the defendant regarding cancellation of Power of Attorney. Defendant further disclosed in the written statement that on the basis of registered power of attorney, he executed various sale-deeds in favour of several persons as well as entered into agreement with different persons. The plaintiff on getting knowledge about several transaction made by the defendant filed a petition under Order VI, Rule 17 of the Code of Civil Procedure for making amendment in the plaint and also making amendment in the relief portion. He further sought addition of some persons as defendants.
The plaintiff on getting knowledge about several transaction made by the defendant filed a petition under Order VI, Rule 17 of the Code of Civil Procedure for making amendment in the plaint and also making amendment in the relief portion. He further sought addition of some persons as defendants. The said prayer for amendment was opposed by the defendant and the learned Court below in terms of the impugned order allowed the petition of the plaintiff for amendment of the plaint subject to payment of cost of Rs. 500 (Five hundred). 3. I have heard Mr. Umesh Prasad Singh, learned Senior Advocate appearing on behalf of the petitioner and Mr. S.S. Dwivedi, learned Senior Advocate appearing on behalf of the opposite parties. 4. Mr. Umesh Prasad Singh, learned Senior Advocate assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the amendment sought for by the plaintiff in his declaratory suit without seeking a relief of declaration regarding the validity of the power of attorney is not permissible under the law. Learned Counsel further submitted that by the proposed amendment the plaintiff seeks a relief for declaration that the sale-deeds are void and the said relief is barred by law of limitation. Learned Counsel further submitted that the proposed amendment is nothing but addition of new cause of action which is beyond the scope of the suit. 5. Before appreciating the submission of the learned Counsel it would be proper to look into main part of the proposed amendment sought for by the plaintiff. In the amendment petition the plaintiff prayed for addition of paragraphs 4A and 4B which reads as under: 4(A) That, the transactions disclosed by the defendant No. 1 during the course of the suit i.e. the alleged sale deed number 17479 dated 9.12.94, deed Nos. 17, 18, 19 dated 16.12.94, deed Nos. 17893, 17894,17895, 17896 dated 23.12.94 deed Nos. 21, 22, 23, 24 dated 2.1.95, deed Nos. 4012 dated 26.4.1995 and deed No. 4011 dated 30.4.95 alleged to have been executed by the defendant No. 1 after cancellation of his power of attorney with respect to the suit property in the name of his family members, kith and kin, are quite malafide and it is all null, void, ineffective, inoperative and it is without any necessity of the owners, without consideration and apparently for petty amount.
The alleged papers of Mahadnama are equally fraudulent, manufactured, antedated and without any legal authority in this behalf. It is all the device adopted by the defendant to usurp the valuable property of the owners quite illegally. Although the so called transferees have not acquired even a shadow of right, title and possession over the suit land purported to be transferred even for a moment. It is all coming in possession of the owners through the plaintiff No 1 as holder of power of attorney. 4(B). That, the alleged sale-deeds No. 9202 dated 20.4.71, deed No. 7929 dated 21.5.72, deed Nos. 9331 9332 both dated 24.7.93 purported to have been executed by the owners with respect to the suit property are quite forged and fabricated, having never been executed by the owners. They are all null and void, inoperative and ineffective as well on the basis of which the alleged transferees have not acquired any title or possession even for a moment. It is coming on in possession of the owners as usual through the holder of their power of attorney without any interruption. The alleged vendees are either relation or the henchmen of the defendant No. 1. The plaintiff further prayed for addition of the following relief: On the adjudication of the above said facts and circumstances, the Court be pleased to declare the alleged sale-deeds Nos. 17479 dated 2.12.94, deed Nos. 17, 18, 19 dated 16.12.94. deed Nos. 17893, 17894, 17895, 17896 dated 23.12.94, deed Nos. 21, 22, 23, 24 dated 2.1.95, deed No. 4012 dated 28.4.95, deed No. 4011 dated 30.4.95, deed No. 9202 dated 20.4.71, deed No. 7929 dated 21.5.79, deed Nos. 9331, 9332 both dated 24.7.93 as null, void, inoperative and ineffective. 6. From bare perusal of the proposed amendment it appears that the...declaration within the sale deeds dated 20.4.71 and 21.5.79 besides other sale-deeds are null and void, inoperative and ineffective. The other sale-deeds for which declaration has been sought have been executed in between 1994 and 1995. Admittedly the suit was instituted in the year 1994. The plaintiffs case as stated herein above is that the power of attorney executed by the original owners of the suit properties in favour of defendant No. 1, was cancelled on 16.11.94 and, a fresh power of attorney was executed in favour of the plaintiff on 17.11.94.
Admittedly the suit was instituted in the year 1994. The plaintiffs case as stated herein above is that the power of attorney executed by the original owners of the suit properties in favour of defendant No. 1, was cancelled on 16.11.94 and, a fresh power of attorney was executed in favour of the plaintiff on 17.11.94. Subsequently at the instance of plaintiff No. 1, the original owners of the suit property have been made co-plaintiffs in the suit in order to seek further amendment by adding additional relief for declaration that the sale-deeds aforementioned are null and void. Admittedly, the original owners have not challenged the earlier sale-deeds of the year 1971 and 1979. It was only in the instant suit the plaintiff wanted to challenge those deeds by amending the plaint. Admittedly the sale-deeds of the year 1971 and 1979 were executed several years before the institution of the suit. Prima facie the relief sought for declaration about validity of the sale-deeds of the year 1971 and 1979 is barred by limitation, and it has no nexus with the cause of action arose in favour of the plaintiff in the instant suit. The Court below, therefore, committed serious illegality in allowing amendment of the plaint in respect of atleast these two sale-deeds. This aspect of the matter has not been considered by the Court below. The Court below has committed illegality insofar as it held that the amendment sought for is nothing but subsequent event. As noticed above, the suit was only for permanent injunction had basis of the suit was cancellation of power of attorney and execution of fresh power of attorney by the original owner in favour of the plaintiff No. 1 on 17.11.1994. I am, therefore, of the view that part of the amendment allowed by the Court below is illegal and without jurisdiction. 7. For the reasons aforesaid, this revision application is allowed in part and the prayer for amendment for declaration that the sale-deeds of the year 1971 and 1979 are illegal and inoperative is set aside.