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2001 DIGILAW 752 (AP)

Brundavan Bisoyi v. Annapurna Bisoyi

2001-07-20

ELIPE DHARMA RAO

body2001
ELIPE DHARMA RAO, J. ( 1 ) THIS Civil Revision Petition is directed against the order dated 30-11-2000 passed in la. No. 208 of 2000 in O. S. No. 12 of 1997 on the file of the Senior Civil Judge, Sompeta. whereby the learned Judge has dismissed the I. A. holding that the defendant- petitioner herein is not entitled to the relief of amendment of written statement. ( 2 ) THE brief facts of the case are that o. S. 12 of 1997 was filed by the respondent- plaintiff for partition of the suit properties, which are the self acquired properties of the lokono Bisoi, maternal grandfather of the plaintiff, into two equal shares and to allot one such share to her, as she was the granddaughter of a Lokono Bisoi. The said lokono Bisoi is having a daughter by name surekha Bisoi, who is the mother of the plaintiff-respondent herein. The said lokono Bisoi died in the year 1960 and his wife Kundano Bisoi also died in the year 1971 and the plaintiff-respondent and the defendant-petitioner are enjoying the possession of the properties as heirs. When the defendant failed to give due share of the plaintiff inspite of the registered notice, the suit was filed. ( 3 ) THE defendant has denied the relationship between himself and the plaintiff and that the plaintiff is not the granddaughter of Lokono Bisoi, father of the defendant. He further asserted that the suit properties are self acquired properties as well as ancestral properties of the defendant and the plaintiff-respondent herein has nothing to do with the suit schedule properties and she is a stranger and, therefore, she is not entitled to any share. ( 4 ) PENDING the suit, the defendant came up with the present Interlocutory application to allow him to amend the written statement to the effect that the defendant-petitioner herein has been in continuous possession and enjoyment of the suit property for the last more than 45 years since the death of his father and also perfected his title to the suit property by adverse possession also. ( 5 ) THE learned Judge, on an elaborate consideration of the matter and on scrutiny of the decisions of both the Supreme Court and the High Courts, relied on by the parties, and having regard to the ingredients of adverse possession, which is an alternative plea raised by the petitioner- defendant, held that since the defendant- petitioner herein has denied the relationship with the plaintiff and set up title in himself to the suit properties, now the proposed amendment which he wants to make is to the effect that he has perfected his title by adverse possession which is mutually destructive of the original plea raised in the written statement, the proposed amendment cannot be allowed, ( 6 ) AGGRIEVED by this order, the defendant preferred this Civil Revision petition. ( 7 ) IT is true that the purpose and object of order VI Rule 17 of the Code of Civil procedure (for brevity the Code) is to allow either party to alter or amend the pleadings in such a manner and on such terms, as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and the supreme Court, but the amendment cannot be claimed as a matter. of right under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hyper-technical approach and a liberal approach should be the general rule particularly in case where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties and the amendments are allowed in the pleadings to avoid uncalled for multiplicity of the litigation. Further the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statements. The Courts are more generous in allowing the amendment of the written statement, as question of prejudice is less likely to operate in such an event. The defendant has a right to take alternative plea in defence, which however, is subject to exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. The defendant has a right to take alternative plea in defence, which however, is subject to exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. It is a settled principle of law that all amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original Us was raised or defence taken. But at the same time, inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. ( 8 ) IN the background of these undisputed principles governing amendment of pleadings, let us examine the case on hand. ( 9 ) IN the first instance, the petitioner has denied his relationship with the respondent-plaintiff and termed her as a stranger and set up an independent title in himself claiming the properties to be ancestral and self acquired and that he is the rightful owner of the properties. Therefore, if the plaintiff is unable to prove the relationship between herself and the defendant, she is not entitled for partition of the suit properties and once she proves the relationship, she is certainly entitled for the relief sought for in the suit. ( 10 ) AS held by the learned Senior Civil judge, it is a settled principle of law that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounts to denial of his title to the property claimed, that the adverse possession implies that possession commenced in wrong and is materialized against right, i. e. , to say if a person is said to be holding the property adverse to the real owner when that person, in denial of the owner s right, excluded him from the enjoyment of his property. In the case on hand, the petitioner-defendant, in the first instance has denied his relationship with the respondent-plaintiff and that the suit property is his self acquired and ancestral property and he is a rightful owner. In the case on hand, the petitioner-defendant, in the first instance has denied his relationship with the respondent-plaintiff and that the suit property is his self acquired and ancestral property and he is a rightful owner. Therefore, when the petitioner- defendant pleads that he is the real owner of the suit property, the question of his perfecting the title by adverse possession against the real owner does not arise inasmuch as the claim of adverse possession arises only against a real owner of the property in denial and exclusion of the rights of the real owner. Therefore, if once the petitioner-defendant proves that there is no relationship between himself and the plaintiff, his title to the property is protected and he will be the owner. Therefore, the proposed amendment sought by the defendant is entirely different from the defence taken by him in the written statement and it creates a new cause of action. As stated above, the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice. No doubt, all amendments to the pleadings should be allowed which are necessary for the determination of the real controversies in the suit, but the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. From the facts and circumstances of the case, it is clear that if the proposed amendment is allowed, it will totally change the nature of the suit giving rise to new cause of action resulting in substantial prejudice to the plaintiff- respondent herein. Therefore, I do not find any material irregularity or illegality committed by the learned Senior Civil judge, Sompeta in rejecting the relief of amendment of the written statement and dismissing the LA. ( 11 ) THE Civil Revision Petition is devoid of merits and is accordingly dismissed. No order as to costs.