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2001 DIGILAW 287 (JK)

Kartar Singh v. Trilok Singh

2001-11-20

B.L.BHAT

body2001
1. This revision is directed against the order dated 9.12.1998 recorded by learned District Judge, Budgam in Civil Original Suit titled Kartar Singh Vs Trilok Singh and Ors. It stems out of those circumstances which are summarised as:- 2. On 12.8.1992 the petitioner/plaintiff came to institute a suit against respondents/ defendants before the learned District Judge, Budgam seeking therein the following reliefs which are reproduced in verbatim as under:- i) That a decree of declaration or cancellation be passed in favour of the plaintiffs that the gift deed dated 14th Sept, 1963 is fraudulent and fictitious and as such legally void and ineffective, ii) That a decree for declaration with costs be passed in favour of the plaintiffs that they alongwith the father of defendant No. 1 and father of defendants 2 and 3 and husband of defendant No.4 were as reversions and co-sharers entitled to share the land of Bir Singh equally as reversioners after the extinction of the life interest of his widow Lachmi Kour on his land. iii) That a decree for declaration be passed that the mutation order dated 17th Feb. 1964 is non establish and illegal in so far as it is fraudulent and fictitious and as such does not affect the right of the plaintiffs to share the land of the deceased Bir Singh. iv) That a decree for the redemption of the mortgage dated 1st. Phagoan 1999 alongwith possession as mortgaged property measuring 20 Kanals and 5 Marlas in Khasra No. 258, 257 and 271 to the extent of the share of the plaintiffs be passed against defendants with costs.� 3. iv) That a decree for the redemption of the mortgage dated 1st. Phagoan 1999 alongwith possession as mortgaged property measuring 20 Kanals and 5 Marlas in Khasra No. 258, 257 and 271 to the extent of the share of the plaintiffs be passed against defendants with costs.� 3. The brief averments of the plaint are that Madan Singh and Bir Singh (whose names are shown in the pedigree table set out in the para No. 1 of the plaint) were decedents of a common ancestor; that the landed property which had devolved upon them was ancestral as a result of which the said land continues to be joint and unpartitioned among the parties who are in its possession as co-owners; that said Bir Singh died issueless after leaving behind his widow namely Lachmi Kour who inherited the land left by her by deceased husband as limited owner viz till her re-marriage or till her death as per the custom prevalent among the parties; that after the death of Lachmi Kour her limited interest in this property left behind by her deceased husband got extinct and reversed back to Bachan Singh son of Madan Singh and after the death of Bachan Singh this property devoided upon his sons (whose names are set out in the plaint); that after the death of lachmi Kour the widow of Bir Singh, Kapoor Singh the father of defendant No. 1 and Chanda Singh father of defendants 2 and 3 and husband of defendant No. 4 got the entire share of land of Bir Singh mutated in their names at the back of plaintiffs on the basis of fraudulent and fictitious Gift Deed dated: 14-09-1963 purported to have been executed by deceased Lachmi Kour in their favour; that after about a year back the plaintiffs got the knowledge of this Gift Deed when they asked the defendants to portion their entire land including that left behind by Bir Singh; that the said Gift Deed is purported to have been executed on 14-09-1963 by Lachmi Kour when she has expired on 03-03-1961; that the share of land left behind by Bir Singh deceased after his death which is measuring about 20 Kanals and 5 Marlas comprising of Survey Nos 258, 271 and 257 located at Naserpora Budgam reverted back to all sons of Bachan Singh after the death of Lachmi Kour who had life interest in this property and this whole land left behind by Bir Singh has devolved upon the five sons of Bachan Singh in equal sharers as reversions of Bir Singh; that Bir Singh during his life time had mortgaged with possession his said share of land measuring about 20 Kanals for a period of 30 years by virtue of Mortgage Deed dated 1st. Phagoan 1999; that as the period of mortgage has expired and the mortgagee having been all through this period in possession of this land is under obligation to restore the mortgage property to its real claimants; that cause of action has accrued to avoid the Gift Deed to the plaintiffs on 07-04-1992 when the Additional Commissioner in a Revision Petition has returned a finding that its validity can be adjudged by a Civil Court and the cause of action to seek restituting of the mortgage has accrued about a week back when the defendant No. 1 the mortgagee refused to allow redemption of the mortgaged land by the plaintiff to the extent of their share. Hence this suit. 4. On 21-05-1998, the plaintiffs during the pendency of this suit before the trial court through the medium of a petition sought leave to amend the plaint stating therein, that the counsel engaged by them has narrated different facts in the plaint not narrated to him by them, as a result of which they want to amend para Nos 2 to 5 as under:- a) It is submitted that Bir Singh S/o Karam Singh was never in possession of his landed property but the same was under the possession of Bachan Singh (father of the plaintiff defendants). The said Bachan Singh in possession of the said landed property for about more than 50 years, therefore, said Bachan Singh had acquired titled over the said landed property of Bir Singh by adverse possession. b) That after the death of Bachan Singh all the property which was ancestral property and the property of Bir Singh to which he became entitled by adverse possession was in joint possession of the plaintiffs and the defendants.� That the plaintiffs also want to amend prayer clause No. II that this Hon™ble court be pleased to pass a decree of declaration declaring that plaintiffs alongwilh father of defendant No. 1 and father of defendant Nos 2 and 3 and husband of defendant No. 4 are entitled to get their due share out of the whole property left behind by Bachan Singh which he acquired from his father Madan Singh and also the property of Bir Singh over which he became entitled to by virtue of adverse possession. That the proposed amendment will not change the nature of the suit and if allowed will not cause injustice to the defendants. That the proposed amendment will not change the nature of the suit and if allowed will not cause injustice to the defendants. That on 24-11-1998 the plaintiffs presumably to supplement this petition moved another application before the trial court for leave to amend the plaint together with the proposed amended plaint with an alternative prayer for leave to withdraw the suit with permission to file a fresh suit. 5. The learned trial court after hearing the parties came to disallow the said prayers made by the plaintiffs by virtue of order dated: 09-12-1998 which is impugned in this revision. 6. The stand of learned counsel for the petitioners is that the impugned order suffers with jurisdictional error and has been passed with material irregularity by the trial court. He further submits that the proposed amendment if allowed will not introduce a new case nor will it change the nature of the suit. 7. On the other hand the learned counsel for the respondents while defending the impugned order has stated that the proposed amendment under all the circumstances is going to introduce the facts which are inconsistent and different to the facts already set up by the plaintiff in suit, therefore, if allowed shall introduce a new case and shall also change the cause of action. 8. I have considered the rival contentions of the learned counsel for the parties. From the perusal of the suit file it is manifest that the plaintiffs have in their suit after getting declaration that the Gift Deed purported to have been executed by Lachmi Kour the widow of the deceased on 14-09-1999 in favour of Kapoor Singh the father of defendant No. 1 and Chanda Singh the father of defendants 2 and 3 and husband of defendant No.4 claimed 3/5th share of the land measuring about 20 Kanals and 5 Marlas comprising of Survey Nos. 258, 257 and 271 under Khewat No.64 located at Naserpora in equal shares alongwith the defendants left behind by Bir Singh being his reversioners by stating in para No. 2 of the plaint that Madan Singh and Bir Singh (whose names are set out in para No.1 of the plaint) were descendants of a common ancestor and the land which devolved upon them was ancestral and continues to be joint amongst the parties and that after the death of Bir Singh his property was inherited by his widow as limited owner and after her death has reverted back to Bachan Singh father of plaintiffs and father of defendant No. 1 and father of defendants 2 and 3 and husband of defendant No. 4. But by virtue of proposed amendment they seek to substitute by incorporating in the plaint that Bir Singh was never in possession of his landed property and same was in possession of Bachan Singh (father of the plaintiff and the defendants) for last more than 50 years, therefore, said Bachan Singh has acquired his title over this land left behind by Bir Singh by virtue of adverse possession. They have also in their suit under Relief Clause sub clause IV of the plaint sought relief of redemption of mortgage alongwith the recovery of the possession of the suit land to the extent of their share on the basis of averments of para No. 14 of the plaint by stating inter alia that Bir Singh during his life time mortgaged his land measuring about 20 Kanals together with possession for a period of 30 years by virtue of mortgage deed dated 1st. Phagoan 1999, the period of mortgage has expired and the mortgagee has remained in possession of this land during this entire period, that the plaintiffs in the capacity of reversioners of Bir Singh are entitled to seek redemption of mortgage. The said mortgage deed, the reference of which is made in this para No. 14 of the plaint is on the file, reveals that Bir Singh mortgaged this land measuring about 20 Kanals and 5 Marlas to Kapoor Singh the brother and father of defendants 1 and 3 and husband of defendant No. 4. The said mortgage deed, the reference of which is made in this para No. 14 of the plaint is on the file, reveals that Bir Singh mortgaged this land measuring about 20 Kanals and 5 Marlas to Kapoor Singh the brother and father of defendants 1 and 3 and husband of defendant No. 4. All this goes to show that the plaintiffs by virtue of proposed amendment seek their right in the suit land on the basis of adverse possession which pre-supposes possession through their father Bachan Singh, when as indicated they have sought possession of the suit land on the basis of redemption of mortgaged property i.e. the land left behind by Bir Singh and have omitted in the plaint their legal relation of being co-sharer of Bir Singh on the basis of which they have sought the reliefs claimed in the suit. Viewed thus the proposed amendment if allowed shall introduce a case which is quite inconsistent and different from the case stated by the plaintiffs in their plaint and this shall also alterthe very foundation on which the suit is based and the proposed amendment shall also change the nature of the suit. In this behalf it is pointed out that as indicated sub clause IV of the relief clause, the plaintiffs have sought redemption of the mortgage deed dated 1st. Phagoan 1999 together with possession of this property measuring about 20 Kanals and 5 Marlas to the extent of their share against defendants but by virtue of proposed amendment they have sought their claim with respect of their share of landed property left by Bir Singh on the basis of adverse possession through their father and the adverse possession pre-supposes their possession on the suit land. 9. True, it is, that it is a settled principle of law, that court exercising its powers under Order 6 Rule CPC should be liberal in granting amendment of the pleadings sought by either party to the suit where no serious injustice is likely to be caused to the opposite party nor any right as that based on limitation is likely to be effected but where it is found that the amendment will introduce totally as different, new and inconsistent case or that it will alter the character of an action it cannot be allowed. As indicated the plaintiffs have sought possession of the suit land to the extent of their share have based their claim on different relation i.e. to say on the basis of adverse possession which pre-supposes their possession by introducing totally different and inconsistent facts as already set up by them in the plaint. 10. Now coming to the test the findings of the trial court with respect to the alternative prayer made by the plaintiff for the withdrawal of the suit with permission to file a fresh suit, it is pointed out that said relief can be granted only under Order 23 Sub Rule 3 of CPC, which provides that where the court is satisfied that suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to. institute a fresh suit for the subject matter of the suit or such part of the claim by him on said terms as it thinks fit to grant the plaintiff, permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. The plaintiffs in their application dated: 24-11-1998 while supplementing the original application dated: 21-05-1998 for leave to amend the plaint has no where stated that the suit in hand shall fail due to some formal defect or there are sufficient grounds for allowing the plaintiff/petitioner to institute a fresh suit with respect to the subject matter of this suit. 12. Viewed this, the impugned order does not suffer with any infirmity or jurisdictional error nor is it recorded with any material irregularity. 13. Therefore, the revision petition is dismissed. Registry is directed to return the record of the court below along with a copy of this order forthwith a direction to the learned counsel for the parties to cause appearance of their clients before the trial court on 29-11-2001.