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2000 DIGILAW 1134 (PAT)

Om Prakash v. Radhika Devi

2000-09-19

P.K.DEB

body2000
Judgment 1. This revision petition has been preferred against the order dated 30.9.1999 passed by sub-Judge-IV at Bhagalpur in Title Suit no. 139 of 1989 whereby and whereunder the prayer made by the plaintiff-petitioner under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the plaint has been rejected. 2. The plaintiff filed Title Suit no. 139 of 1989 for partition and separate allotment of 1/5th share in Item no. 2 and 1/8th share in item no. 1 of Schedule-A in favour of the plaintiff. The relationship between the plaintiff and defendants are that the plaintiff and defendant no. 1 are the sons of defendant no. 2. That there was amicable partition between the father of the plaintiff with his other co-sharers is admitted. It was also stated in the plaint that there was some amicable settlement between the plaintiff and defendants in respect of some properties and some properties remained joint and hence, the partition suit. In the written statement filed it was contended that there was oral exchange between defendant no.2 and plaintiff no. 2 regarding their amicably settled protions and then defendant no. 2 made a deed of gift in favour of defendant no. 1 on 30.5.1989 in respect of 7.20 acres of land at Itahari. Such written statement was filed long back in the year 1990 and the plea of gift has been specifically mentioned in the written statement but the plaintiff did not file any amendment during this long period. Only on 22.3.1999 they filed a petition for inclusion of some statement in the contents of the plaint to the effect that they came to know of such gift in the year 1998 when son of defendant no. 1 by taking his advantage to be an employee in the circle office got the name of defendant no. 1 mutated in respect of the gifted land. In the prayer portion of the suit it was mentioned that in respect of 78 decimals of land which was beyond the scope of oral exchange even if that was there cannot be gifted away and in that way the whole of the gift deed was sought to be declared as void and illegal. In the prayer portion of the suit it was mentioned that in respect of 78 decimals of land which was beyond the scope of oral exchange even if that was there cannot be gifted away and in that way the whole of the gift deed was sought to be declared as void and illegal. Objections were raised from the side of the defendants and after hearing both the parties the amendment has been rejected on the ground that the plaintiff ought to have challenged the deed of gift as a whole and they cannot claim a part of the gifted property to be null and void. 3. On the face of the records it appears that the learned court below has misconstrued the relief portion of the plaint. Practically the whole of the gift deed has been challenged but specifically it was mentioned that at least 78 decimals of land could not have been gifted. It appears that the learned court below has not at all considered the point of limitation in the impugned order. It has been stated that such limitation matter was not raised from the side of the defendants also while filing objection and as such waived the same. The question of estoppel and waiver does not come in again the statute. On the face of the records it appears that the plaintiff had the knowledge of the gift deed in the year 1990 itself when in the written statement specifically plea was made regarding the right of the defendants on the basis of the gift deeds. The said gift deed was executed in the year 1989 and after ten years the same is not to be declared as void. The test for limitation in respect of the amendment is that whether such plea can be tenable if a separate suit is filed on the date the amendment has been filed. On the face of the record no such suit can be maintainable as the limitation is three years from the date of execution of the gift deed or from the date of knowledge. In the present case the date of knowledge is the date of filing of the written statement by the defendants in the year 1990. So the amendment sought for is hopelessly barred by limitation in the year 1999. In the present case the date of knowledge is the date of filing of the written statement by the defendants in the year 1990. So the amendment sought for is hopelessly barred by limitation in the year 1999. So when by lapse of time a valuable right has already been accrued in favour of the adverse party. Thus even if it is taken that the rejection of the amendment was not very regular by the learned court below as he had taken a wrong approach and misread the relief claimed from the side of the plaintiff then also such amendment cannot be allowed on the face of it as the same is barred by limitation. 4. It is the contention of the learned plaintiff-petitioner that when limitation has not been urged from the side of the defendants then at this stage the court should not consider the same that too by the revisional court and the matter should be left for thrashing out during the course of trial. I am not convinced with such submission. When a statutory bar is there, this court cnnot overcome it and allow the revision petition by allowing the amendment. 5. On the matter of limitation being applied in the course of amendment under Order 6 rule 17 of the Code of Civil Procedure learned counsel has referred to a judgment of the Privy Council as reported in AIR 1921 (Privy Council) 50 (Charandas and others V/s. Amir Khan and others). In that case amendment was allowed even after the expiry of the limitation period and it was held by the Privy Council in the following manner "that there was full power to make the amendment cannot be disputed and though such power should not as a rule be exercised where this effect is to take away from a defendant a legal right which is accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case." In that case a pre-emptory right was claimed by the plaintiff in the pre-emption suit but the possesion as a corollary to such right was not included and such possesion was sought to be incorporated by way of amendment under Order 6 Rule 17 of the Code of Civil Procedure. On the principle that the possession follows from from the right/title, considering the special circumstances of the case as the suit was of special consideration of special type of pre-emption the amendment was allowed. But that does not come in the present suit. It is not a special circumstance wherein the limitation can be outweighed. On the basis of that Privy Council judgment there is a judgment of the Apex Court as reported in 1957 SC 357 (L.J. Leach & Company V/s. Jardine Skinner and Company). That was a case of tort. Conversion of the goods as claimed from the side of the plaintiff were to be established by giving its essentials and such essentials were sought to be incorporated by way of amendment and it was held by the Apex Court that as the conversion was claimed earlier in the suit itself and essentials of it came as an explanation the same cannot be construed to be barred and even if barred then also in the circumstances the said bar can be outweighed. The present case does not come within such exceptional cases. Here the suit is a partition suit and complete new plea is being taken by way of amendment for declaration of a gift deed to be void which was wholly barred by limitation. Another judgment of this Court as (Chandi Prasad Sarkar V/s. Satya Prasad Roy and anr.) reported in 1992 (1) PLJR 87 has been referred to. That was a suit for declaration of right, title and interest of the plaintiff purchased in the year 1983 in the name of Benamidar who never came in possession. Such suit was filed before the enactment of Benami Transactions and Prohibition of Right to Recovery of Property Act, 1988. As the Act was construed to be of retrospective effect on the basis of a judgment of the Apex Court in Mithilesh Kumaris case, the plaintiff had to come up to overcome that by claiming adverse possession and that was allowed at the belated stage considering the circumstances and enactment coming during the pendency of the suit and also a decision is being arrived at by the Apex Court giving its retrospective effect. That judgment has got no bearing in the present circumstances of the case. 6. That judgment has got no bearing in the present circumstances of the case. 6. Now coming to the factual aspect it appears that the plaintiffs side was challenging the-oral exchange although not in so many words but the trend is of that type. If the oral exchange goes away then automatically the gift deed or the sale deed made by the plaintiff or the defendant side also would have got no legal effect, it was also the trend of the contention from the side of the plaintiff even if there was oral exchange regarding equal allotted lands then also 78 decimals is outside the scope of such exchange and on such land the defendant no. 1 would have no title with the same and in that way the subsequent donee that is defendant no. 2 would have no title over such 78 decimals of land. Even if no amendment is there then also it remains the crux of dispute to be decided as to whether there was oral exchange and if no oral exchange was there then the gift deed would have no legal effect. Secondly, if the oral exchange is not valid even if for 78 decimals of land then also the gift deed of that 78 decimals of land would have no legal effect. These are all matters of crux of dispute which can be considered by the court below during the course of trial even if there is no amendment in the suit. 7. When the amendment sought for is hopelessly barred by limitation, there is no scope to allow such amendment and hence although the impugned order is not proper that is the way the same has been rejected but the rejection of amendment is maintainable by taking another view as expressed above. 8. Thus, the revision petition is rejected having no force in it.