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2005 DIGILAW 1208 (PNJ)

Joginder Singh v. Harbans

2005-11-25

AJAY K.MITTAL

body2005
JUDGMENT Ajay Kumar Mittal, J. - The defendant-petitioners in this revision petition have raised the grievance that the appellate Court vide impugned order dated 9.6.2000 while rejecting the application for amendment of written statement has prejudiced the case of the defendants and, therefore, the said order be set aside. 2. The plaintiff-respondents filed a suit for declaration to the effect that plaintiff No. 1 and plaintiff Nos. 2 and 3 in half share are owners in joint possession of land measuring 6 kanals 9 marlas out of the total land measuring 19 kanals 7 marlas and a prayer was made in the alternative for joint possession of the suit properties as owner to the above extent with consequential relief of permanent injunction restraining the defendants from alienating, transferring, selling, mortgaging or disposing of the suit property in any manner. 3. The claim in the plaint is based on the fact that Mool Chand father of plaintiff No. 1, father-in-law of plaintiff No. 2 and grand-father of plaintiff No. 3 was owner in possession of suit properties and after whose death on 19.2.1980, the estate devolved upon plaintiff No. 1 to the extent of 1/6th share and upon predecessor-in-interest of plaintiff Nos. 2 and 3 to the same extent. The plaintiffs have put forward that though no sale was effected yet the defendants have started claiming themselves to be owners of suit property. Alternatively, they claimed a decree for joint possession. 4. The defendant-petitioners contested the suit and raised certain preliminary objections and on merits pleaded that Mool Chand alias Moola Singh is admitted to be the erstwhile owner of suit properties. It has further been pleaded that Harbans Lal and Jagdish Chand duly executed registered power of attorney on 19.5.1980 on the basis of which their agent and mother Gurdev Kaur sold off their shares along with those of other co-owners and of herself in individual capacity on 20.5.1980 vide registered sale-deed for a consideration of Rs. 20,560/- and ever since then they are owners in possession of the suit property. 5. The trial Court decreed the suit of the plaintiff-respondents and held that Harbans and Jagdish Chand could not have been present on 19.5.1980 for execution of power of attorney in favour of their mother Gurdev Kaur. The trial Court further held that power of attorney Ex. 5. The trial Court decreed the suit of the plaintiff-respondents and held that Harbans and Jagdish Chand could not have been present on 19.5.1980 for execution of power of attorney in favour of their mother Gurdev Kaur. The trial Court further held that power of attorney Ex. D-1 alleged to be executed on 19.5.1980 was manipulated only to be used or misused on 20.5.1980 for execution of sale-deed and that the defendants could not be said to be bona fide purchasers. It was further held that the plaintiffs are entitled to joint symbolic possession of the suit properties to the extent of their shares. 6. The defendants carried an appeal against the judgment and decree of the trial Court dated 22.5.1998 and there an application for amendment of written statement was filed to take the plea that they have become owners by adverse possession which has been declined by the Appellate Court. 7. The defendant-petitioners by way of amendment in the written statement had prayed for adding para 4-A to the following effect :- "That Harbans Lal and Jagdish Chand sons of Mool Chand alias Mool Singh gave power of attorney in favour of their mother Gurdev Kaur and the power of attorney is dated 19.5.1980 and the sale-deed was executed on the very next day i.e. 20.5.1980. The attorney was no body else except the mother of Harbans Lal and Jagdish Chand. The sale as such is valid and binding qua the rights of Harbans Lal plaintiff and deceased Jagdish Chand. Assuming but not admitting that the power of attorney is not valid and that Harbans Lal and Jagdish Chand deceased did not give power of attorney in favour of their mother Gurdev Kaur, then in that situation only i.e. in the alternative the defendant Nos. 1 and 2 are in possession of the entire sold land with effect from the date of sale i.e. 20.5.1980 and their possession is absolute owners and they are continuously in possession is absolute owners and they are continuously in possession exercising their rights of ownership and claiming themselves to be the absolute owners of the land, so in that situation defendant Nos. 1 and 2 have become owners of the suit land because of open, continuous and hostile possession since the date of sale i.e. 20.5.1980 and they have become the owners of the suit land by way of adverse possession which is for more than 12 years prior to the institution of the suit. The plea of adverse possession is being taken only in the alternative in case the power of attorney is not found or held as valid and the suit of the plaintiffs is clearly not within time and is time barred." 8. Counsel for the petitioners submitted that the defendant-petitioners had already claimed that they are owners and it is an alternative plea on the same set of facts that the defendant-petitioners had prayed for amendment of written statement to take alternate ground that they had become owners by adverse possession from the date of the sale i.e. 20.5.1980. According to the learned counsel, the proposed amendment is in the nature of elaborating the original plea of ownership on additional grounds. He further submitted that the Appellate Court had rejected the application only on the ground of delay and the order is legally unsustainable. The next argument of the learned counsel is that the provision of amendment of pleadings is to be liberally construed in order to do justice between the parties. The said amendment goes to the root of the case and is not with any mala fide motive and, therefore, it is necessary for effective and proper adjudication of dispute between the parties. In the interest of justice, the amendment should have been allowed. He placed reliance on Surinderjit Singh v. Jagjit Kaur, 1998(2) PLR 791 and Om Parkash v. Ram Parkash and another, 2002(1) PLR 235, to support his submissions and persuaded this Court to accept the plea. In the interest of justice, the amendment should have been allowed. He placed reliance on Surinderjit Singh v. Jagjit Kaur, 1998(2) PLR 791 and Om Parkash v. Ram Parkash and another, 2002(1) PLR 235, to support his submissions and persuaded this Court to accept the plea. He referred to the decision of various High Courts reported in Bharit and others v. The Honble Board of Revenue, U.P. at Allahabad and others, AIR 1973 Allahabad 201, Laxmibai v. Thoreppa, AIR 1982 Karnataka 248, Laxmi Gouda and others v. Dandasi Goura (deceased by L.R.) and others, AIR 1992 Orissa 5, State of West Bengal v. The Dalhousie Institute Society, AIR 1970 Supreme Court 1778, Collector of Bombay v. Municipal Corporation of the City of Bombay and others, AIR 1951 Supreme Court 469 and Najmuddian and others v. Bibi Nafirunnisa and others, AIR 1991 Patna 239 and submitted that where a person came in possession of the property by way of an instrument, even if that instrument has been held to be invalid, the possession shall deemed to be adverse from that date and the limitation would begin to run from such date. He submitted that in view of the clear proposition of law as aforesaid, the petitioners have a good case on merits. It shall be an injustice to deny the amendment wherein they want to take the alternate plea of adverse possession on the same set of facts. 9. On the other hand, learned senior counsel for the respondents strenuously argued that the plea of adverse possession which is now sought to be taken by way of amendment that have become owners by way of adverse possession is destructive of earlier plea where they had claimed ownership on the basis of sale-deed dated 20.5.1980. He further submitted that the petitioners in the application for amendment have submitted that due to inadvertence the plea could not be taken whereas no legal valid explanation has been given for not taking such plea earlier and no due diligence has been shown by the petitioner-defendants. Continuing with his submission, learned counsel further argued that the amendment which has been sought by the defendant-petitioners is mala fide and with an ulterior motive and in the present case the same has rightly been declined by the Appellate Court. Continuing with his submission, learned counsel further argued that the amendment which has been sought by the defendant-petitioners is mala fide and with an ulterior motive and in the present case the same has rightly been declined by the Appellate Court. Learned counsel placed reliance on Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT 2005(6) SC 486, in support of his submissions and relied upon para 5 of the impugned order dated 9.6.2000 to support the same. 10. I have heard the learned counsel for the parties and perused the record. 11. The object of Order 6, Rule 17 of the Code of Civil Procedure is that the Court should allow the amendment of pleadings which are necessary for determining the real controversy between the parties provided no injustice or prejudice is caused to the other party. The amendment sought should not be with ulterior motive to defeat the rights of the party or to delay the proceedings in any manner. Each case relating to amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of the process of the Court. 12. The petitioners in the present case have already claimed that they were owners and in possession since the execution of the sale-deed i.e. 20.5.1980. By way of amendment the petitioners though maintain that their possession is from that day i.e. 20.5.1980 onwards but claim ownership by adverse possession as well. It cannot thus be said that there has been any change of plea on new set of facts. In Om Parkashs case (supra), an application for amendment of written statement was filed before the appellate Court where essential facts had already been pleaded and by way of amendment only additional plea was sought to be taken. The appellate Court allowed the amendment without setting aside the decree passed by the trial Court. This Court while upholding the order of appellate Court had held that plaintiff shall be given right to file replication to the amended written statement and issue shall be framed covering the additional plea introduced by way of amendment. The appellate Court allowed the amendment without setting aside the decree passed by the trial Court. This Court while upholding the order of appellate Court had held that plaintiff shall be given right to file replication to the amended written statement and issue shall be framed covering the additional plea introduced by way of amendment. Both the parties shall have right to lead evidence on that issue before the trial Court who after recording evidence on that issue shall return the finding on that issue thus resulting only in partial remand of the case without causing any prejudice to the plaintiff. 13. The Apex Court in Salem Advocate Bar Associations case (supra) was dealing with the validity and legality of provisions of Order 6, Rule 17 of the Code of Civil Procedure as amended by Amendment Acts of 1999 and 2002. The said judgment is not applicable to the facts of the present case. 14. In view of above, this revision petition is allowed and order dated 9.6.2000 is set aside. The plaintiffs shall be entitled to file replication to the amended written statement and the trial Court shall frame additional issue covering the additional plea which has been allowed by way of amendment. After the parties have led evidence on the additional issue, the trial Court shall return the finding on that issue along with the evidence to the appellate Court. The trial Court shall make all endeavours to conclude the proceedings before it within six months from the first date of appearance of the parties before it. The appellate Court on receipt of finding on additional issue from the trial Court shall hear and dispose of the appeal within six months. No costs. Petition allowed.