Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 1774 (RAJ)

Darshan Singh v. Lal Singh

2005-07-14

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-The petitioners Darshan Singh, Makhan Singh, Gurnam Singh and Mastan Singh filed a suit under Section 88 of the Rajasthan Tenancy Act (“the Act” for short) arraying the respondent Lal Singh as the defendant on 26.08.1985 which was pending before the Assistant Collector, Sangaria, District Hanumangarh as Suit No. 90/1987. The petitioners moved an application under Order 6 Rule 17 of the Code of Civil Procedure (CPC) seeking amendment in the plaint. The application was allowed by the Assistant Collector, Sangaria by the order dated 20.01.1992. This order dated 21.01.1992 was challenged in Revision No TA/43/92. Ganganagar by the defendant Lal Singh before the Board of Revenue for Rajasthan, Ajmer and the learned Member of the Board, by the order dated 06.01.1995, allowed the revision petition and set aside the order dated 20.01.1992. The plaintiff-petitioners have submitted this writ petition challenging the said order dated 06.01.1995. 2. Brief facts relevant for the present purposes are that the petitioners filed the aforesaid suit for a declaratory decree of their share in joint tenancy with the defendant Lal Singh to the extent of 20 bighas of land in Chaks No. 13 MKS, 14 MKS and 16 MKS. The plaintiffs claimed their right on the averments that the plaintiffs alongwith their deceased brother Gurdev Singh, purchased agricultural land of 13 bighas in Khasara No. 160 min-1 and 7 bighas in Khasara No. 3 min-1 situated at Shergarh from Hira Singh son of Bika Singh by way of a registered sale-deed dated 09.03.1960. Gurdev Singh had expired unmarried and the plaintiffs No. 1 to 4 were his heirs. According to the plaintiffs, at the time of Chakbandi, murabba numbers and kila numbers of all the Khasara were changed and as a consequence thereof the land of aforesaid Khasara No. 160 and Khasara No. 3 was recorded in Chaks No. 13, 14 MKS and 16 MKS. According to the plaintiffs, at the time of Chakbandi, murabba numbers and kila numbers of all the Khasara were changed and as a consequence thereof the land of aforesaid Khasara No. 160 and Khasara No. 3 was recorded in Chaks No. 13, 14 MKS and 16 MKS. The plaintiffs stated the details of land in Chaks No. 13 MKS, 14 MKS and 16 MKS and claimed that they were in possession of 20 bighas of land but either because of mistake or because of conspiracy of the defendant, the land was recorded in the name of defendant Lal Singh and, therefore, the plaintiffs were entitled to a declaratory decree that they were joint tenants with the defendant in the land situated in Chaks No. 13, 14 and 16 MKS measuring 20 bighas and the present entry in the revenue record deserve to be corrected. According to the plaintiffs their rights have been affected because of entering of their khatedari land in the name of the defendant and the defendant could derive any undue advantage and hence the suit was necessitated. It was stated that the defendant was asked very many times to get the record corrected but he refused on 19.08.1985 and hence the cause for filing the suit arose. The plaintiffs prayed for a declaratory decree as noticed hereinbefore. 3. The written statement filed by the defendant-respondent No. 1 has not been produced on record by either of the parties, however, it appears from the facts available on record that the suit was put to contest by the defendant Lal Singh and the issues were framed and thereafter evidence of the plaintiff-petitioners was completed and the suit was posted for evidence of the defendant-respondent (as stated in Para 7 of the reply by the respondent No. 1). 4. An application seeking amendment in the plaint was filed by the plaintiffs before the trial Court on or about 09.05.1991 (Annexure-R2/2). The plaintiffs stated in the application that they had filed a suit on 26.08.1985 under Section 88 of the Act and some evidence of the plaintiffs has also been recorded but there were some factual and legal mistakes in the plaint which were required to be amended. The plaintiffs stated in the application that they had filed a suit on 26.08.1985 under Section 88 of the Act and some evidence of the plaintiffs has also been recorded but there were some factual and legal mistakes in the plaint which were required to be amended. Thereafter, the amendment sought for has been stated in the manner that in the heading of the plaint, alongwith Section 88, Section 53 was also to be added and alongwith defendant Lal Singh, other defendants Nand Singh, Chand Singh and Gopal Singh and so also Tehsildar, Sangaria were to be added; the title of the suit was to be described as a suit for declaration and devision of holdings; the pedigree of family of the defendants was sought to be inserted and then the details of the joint holdings of Hira Singh(Lal Singh came in whose adoption) alongwith defendants No. 2, 3, and 4 were sought to be added ultimately to the effect that in the joint khata, Hira Singh was khatedar of 127 bighas and 15 biswas of land apart from other land in Khata No. 9 which was not relevant. The suit of the plaintiffs was for 20 bighas of land in Khasara No. 160 and Khasara No. 3 only and then details were sought to be stated as to how the land of these Khasaras was fitted in different Chak numbers. .5. Apart from the proposal to insert the aforesaid as Para Nos. 1, 2 and 3 in the plaint before Para No. 1 already existing, it was sought that Para Nos. 1 and 2 in the plaint be renumbered as Para Nos. 4 and 5 which were describing the purchase of 20 bighas of land by the plaintiffs and their brother Gurdev Singh and the plaintiffs succeeding to Gurdev Singh. Para 3 containing the description of the land in aforesaid Chaks No. 13, 14 and 16 MKS were sought to be deleted. Thereafter, it was stated that Para 4 in the plaint which was to be renumbered as Para 6 be deleted and a new Para 6 was to be inserted. Para 3 containing the description of the land in aforesaid Chaks No. 13, 14 and 16 MKS were sought to be deleted. Thereafter, it was stated that Para 4 in the plaint which was to be renumbered as Para 6 be deleted and a new Para 6 was to be inserted. The averments sought to be deleted which were contained in earlier Para 4 in the plaint stated inter alia that the land purchased by the plaintiffs whose sale-deed was with the plaintiffs and 20 bighas of land was in possession at site, has been, either mistakenly or with the conspiracy of the defendant, entered in name of defendant Lal Singh. In place of these averments, it was sought to be stated that the plaintiffs No. 1 and 2 were in possession of 6 bighas of land in Chak No. 13 MKS in Murabba No. 55 and Murabba No. 56 and that the plaintiffs No. 3 and 4 were in possession of 4 bighas of land in Chak No. 13 MKS Murabba Nos. 55 and 64, and 3 bighas in same Chak No. 14 MKS, Murabba No. 57 and Murabba No. 65. It was sought to be averred that in all 13 bighas of land has been received in possession by the plaintiffs which was earlier comprised in Khasara No. 160. However, 7 bighas of land in Khasara No. 3 was not delivered in possession by the defendant No. 1 saying that without proper division and without decision regarding the land acquired for the canal, the plaintiffs cannot get possession in the joint holding although symbolical possession was given to the plaintiffs. According to the plaintiffs, before mutation was made in consequence to the sale deed, mutation in the name of defendant No. 1 as successor to Hira Singh was made and, therefore, bona .fide the plaintiffs remained in possession of 13 bighas of land and kept on waiting for remaining 7 bighas of agricultural land through partition. It was averred that the defendant No. 1 in a Case No. 3 decided on 211.1978 got the division with the other defendants by consent and in accordance therewith the defendant No. 1 obtained 4 bighas of land in Murabba No. 89 and 5 bighas and 2 biswas of land in Murabba No. 101 of Chak No. 16 MKS. It was averred that the defendant No. 1 in a Case No. 3 decided on 211.1978 got the division with the other defendants by consent and in accordance therewith the defendant No. 1 obtained 4 bighas of land in Murabba No. 89 and 5 bighas and 2 biswas of land in Murabba No. 101 of Chak No. 16 MKS. The plaintiffs claimed their right in respect of 5 bighas and 2 biswas of land in Murabba No. 101 and 2 bighas of land in Murabba No. 89. According to the plaintiffs they had joint interest in the aforesaid land which was divided by way of a decree dated 211.1978 but they were not made parties to this division as their names have not been recorded. In this manner, the plaintiffs claimed that they were entitled to 13 bighas of land of Khasara No. 160 and 7 bighas of land in Khasara No. 3 which has fallen in the share of defendant No. 1. 6. Prayer for renumbering of other paragraphs in the plaint was also made and in the relief it was sought to be inserted after the relief of declaration that apart from 13 bighas of land in possession of the plaintiffs, their share in respect of 7 bighas of land in Khasara No. 3 which has been received in division by the defendant No. 1 be also declared and then according to the nature of land, division of the khatas be made and in the name of the plaintiffs separate khatas be recorded. .7. Thereafter, the plaintiffs stated that the said amendment was necessary for the just decision of the suit, without which the plaintiffs would not get justice and that by the proposed amendment the rights of the defendants were not taken away and the amendment was necessary for the plaintiff to .prove their case. 8. .7. Thereafter, the plaintiffs stated that the said amendment was necessary for the just decision of the suit, without which the plaintiffs would not get justice and that by the proposed amendment the rights of the defendants were not taken away and the amendment was necessary for the plaintiff to .prove their case. 8. This application for amendment was opposed by the defendants, as discernible from the order dated 20.01.1992 (Annexure-1), on the ground that the evidence of the plaintiffs was already over and finding their case to be weak, they have filed this application only to prolong the suit proceedings; that the application was incompatible with the original suit; that the plaintiffs claimed possession on 20 bighas of land and led evidence to that effect and never claimed that they were dispossessed but now in the application they were admitting that their possession was only on 13 bighas of land and on the remaining 7 bighas they were claiming only symbolical possession. The sale-deed was 30 years old and after 30 years they were filing suit for possession which was barred by limitation because the defendant in his counter-claim has claimed rights on the basis of adverse possession. Regarding other defendants sought to be added, it was submitted that the defendant himself moved earlier an application for impleading them as party in the suit which prayer was opposed by the plaintiffs and the application was rejected by the Court. Now if the application of the plaintiffs would be accepted then the entire nature of the suit would be changed and a new suit would be instituted and would lead to serious complications in the suit. The facts which were in the knowledge of the plaintiff at the time of filing of the suit, cannot be permitted to be pleaded at this advanced stage of the suit and that a comparative reading of the original plaint, evidence and application under Order 6 Rule 17 would show clearly the mala fide intention of the plaintiffs. 9. The contentions aforesaid of the defendant were countered by the plaintiff with the submissions that earlier the suit was under Section 88 of the Act and hence those persons who were now sought to be impleaded as defendants were not required to be impleaded earlier. Now the position has changed because the plaintiff wanted relief under Section 53 of the Act also. Now the position has changed because the plaintiff wanted relief under Section 53 of the Act also. The nature of the suit was not being changed because the plaintiff was not withdrawing his suit under Section 88 of the Act. There was no question of any limitation because the plaintiff was a co-tenant and against a co-tenant adverse possession cannot be claimed. It has also been urged on behalf of the plaintiff that whatever the plaintiff has stated in the evidence was in conformity with the suit because no evidence is permitted under the Evidence Act beyond the suit. 10. After noticing the rival contentions aforesaid in the order dated 20.01.1992, the learned Assistant Collector, Sangaria has abruptly concluded that the application for amendment was required to be allowed for the only reason that the suit has not reached at such advanced stage that by allowing the application there was any change in its nature. On this consideration alone the application was allowed on a cost of Rs. 200/-. 11. In the revision before the Board of Revenue, the learned Member of the Board very briefly noted the contentions of the parties and observed that there was large difference in the proposed amendment and the previous suit in nature and facts. The learned Member observed that by the points raised by way of proposed amendment, the nature of the suit was changed and in these circumstances allowing of the amendment appeared to be abuse of the jurisdiction. Therefore, the revision was allowed and the order dated 20.01.1992 was set aside. 12. Assailing the order dated 06.01.1995 in this writ petition, the learned Counsel for the petitioner has strenuously contended that the learned Member of the Board has failed to consider that the amendment should be liberally allowed and for mere delay in seeking amendment, the same should not be disallowed particularly when the amendment is necessary for the purpose of determining the real questions in controversy between the parties and that the discretion exercised by the lower Court for allowing the amendment should not have been interfered with in revision which was having a limited scope and there was no illegality or material irregularity in the order dated 20.01.1992 passed by the Assistant Collector, Sangaria. The learned Counsel has submitted that the learned Member of the Board has not even considered the record of the case before setting aside the order allowing amendment. The amendment does not change the nature of the suit nor cause any prejudice to the defendants and to avoid multiplicity of proceedings, the amendment ought to have been allowed. The learned Counsel has cited and relied upon the decisions of Honble Supreme Court in Pankaja vs. Yellappa, 2004 (21) ILD 334 (SC) = 2004 (2) WLC SC 539; Fritiz T.M. Cement & Anr. vs. Sudhakaran Nadar & Anr., 2002 (3) SCC 605; and of this Court in Ram Chandra vs. Jagdish Narain Mathur 1988 (1) RLR 331 and of Andhra Pradesh High Court in G. Madhusudhana Reddy vs. G. Maruthi Seetha Rami Reddy, 2004 (15) ILD 222. 13. Learned Counsel for the respondents on the other hand was submitted that by way of the proposed amendment, the entire nature and complexion of the suit is changed. The suit was filed in the year 1985 seeking declaration of their khatedari rights on the basis of sale-deed dated 09.03.1960 on 20 bighas of land. Now the original pleading have been sought to be substantially altered and displaced which is not permissible. The learned Counsel also submitted that earlier the defendant himself asked for impleadment of the other persons as parties to this suit which prayer was opposed by the petitioners and the Court ordered that they are not necessary parties and were not allowed to be impleaded. The learned Counsel submitted that in the garb of this amendment now those very persons have been sought to be impleaded as parties. The learned Counsel cited and relied upon the decision of this Court in Hanuwant Singh Rawat vs. M/s. Rajputana Automobiles, 1993 (1) WLC 625 (Raj.) and submitted that on the principles enunciated in the case of Hanuwant Singh, the application for amendment deserves to be disallowed and the learned Member of the Board has not committed any error which could be said to be an error apparent on the face of the record and, therefore, the writ petition deserves to be dismissed. 14. The stand taken on behalf of the State while filing the copies of the plaint and amendment application as Anneuxres-R.2/1 and R.2/2 with the reply is that the nature of the suit will not change if the amendment is allowed. 14. The stand taken on behalf of the State while filing the copies of the plaint and amendment application as Anneuxres-R.2/1 and R.2/2 with the reply is that the nature of the suit will not change if the amendment is allowed. It has been submitted that in the original plaint the petitioners sought relief for 20 bighas of land situated in Chaks No. 13 MKS, 14 MKS and 16 MKS and in their amended plaint also they have sought the same relief for 20 bighas of land situated in same Chaks with division of land holding. Despite maintaining that the nature of the suit will not change if the amendment is allowed, the respondent No. 3 has also claimed that the writ petition filed by the petitioners be dismissed. Be that as it may. 15. Having given a thoughtful consideration to the rival submissions of the contesting parties and the material placed on record, this Court is of opinion that although the learned Member of the Board of Revenue has proceeded to decide the revision petition by way of a very short and practically non-speaking order and the learned Member has not even given out as to what was the difference in the nature of the pleadings in the original suit and the amendment sought for; but the conclusions reached by the learned Member cannot be faulted with and the order dated 20.01.1992 passed by the Assistant Collector, Sangaria allowing the amendment remains an order having been passed in exercise of jurisdiction wholly illegally and with material irregularities and cannot be approved and, therefore, this writ petition deserves to be dismissed. 16. In the case of Pankaja (Supra), the plaintiffs prayed for permanent injunction restraining the defendants No. 1 to 10 and their agents from interfering with the disputed portion of the property and for possession of the identified portion given out in Annexure-A1 to the plaint. In the written statement, an objection was taken that the suit for relief of injunction and possession without seeking a declaration of title was not maintainable and the appellants, therefore, filed an application for amendment of the plaint by adding the prayer of their declaration as owners of the suit property. This application was rejected by the trial Court on the ground that it was filed at a belated stage. This application was rejected by the trial Court on the ground that it was filed at a belated stage. The revision by the plaintiffs was also dismissed by the High Court of Karnataka on the ground that the amendment was sought at a belated stage and that introduced a different relief then it was originally asked for. In appeal, the Honble Supreme Court held that the jurisdiction to allow the amendment was wide enough to permit amendment even in cases where there has been substantial delay in filing the application as the dominant purpose of allowing the amendment is to minimize the litigation and, therefore, if the facts of the case so permitted, it is always open to allow the amendment in spite of delay and latches. The Honble Supreme Court also found as incorrect the approach of the Courts below proceeding on the assumption that the amendment sought for was barred by limitation and amounted to introduction of different relief then what was asked for in the original plaint. The Honble Supreme Court observed that there was an arguable question of limitation for seeking amendment on the facts of the case as to whether it falls under Article 58 or Articles 64 and 65 of the Limitation Act which question has to be decided in the trial. Therefore, the order refusing the amendment was set aside, the amendment as allowed and the trial Court was directed to frame necessary issues and decide the same in accordance with law bearing in mind the principles of law laid down by the Supreme Court in the case of L.J. Leach & Co., AIR 1957 SC 357 . 17. In the case of Fritiz (Supra), the Honble Supreme Court was concerned with amendment sought in a suit filed for recovery of an amount of Rs. 5,86,268/-towards pathway fees and quarrying fees for various period. An application for amendment was filed for correcting of omissions and mistakes. The Honble Supreme Court found that the original plaint, though set out the main basis of the suit, was rather cryptic and lacking in relevant particulars. The basic terms of the agreement were not accurately stated and it was clear that sufficient care had not been taken in drafting the plaint for which the party should not be penalised. The Honble Supreme Court found that the original plaint, though set out the main basis of the suit, was rather cryptic and lacking in relevant particulars. The basic terms of the agreement were not accurately stated and it was clear that sufficient care had not been taken in drafting the plaint for which the party should not be penalised. The Honble Supreme Court found that there was nothing in various paragraphs of amendment application which changes the basis and character of the suit and the other paragraphs seem to be added in elaboration of the plaintiff s case. Some of these averments could at best be considered as unnecessary but do not tantamount to setting up a new case or cause of action. The Honble Supreme Court found that there was no question of any prejudice to the respondent and on the contrary, it was found that by reason of clarification and elaboration of the plaintiff s case before the trial had started, the defendant would be in better position to know the exact case of the plaintiffs and proceed accordingly. 18. In the case of Ram Chandra (Supra), this Court observed that the Courts are liberal in granting prayers for amendment. The aforesaid was a case where the eviction suit was filed against the defendant-tenants on the ground of default in payment of rent and subletting and it appears that the amendment application was allowed to incorporate the plea regarding notice and personal necessity and comparative hardship which did not change the character of the suit. 19. In the case of G. Madhusudhana Reddy (Supra), the plaintiff has filed a suit for partition. An application was submitted for amendment of the written statement at a belated stage when the suit was coming up for arguments which was disallowed. The Honble High Court of Andhra Pradesh found from the impugned order that virtually the trial Court has gone into the merits of the proposed amendment and proceeded also on an additional reason that the application was moved at a belated stage. The High Court considered the law that at the time of allowing the amendment, giving finding against the allegations in the intended amendment without allowing the same was improper. Although the application was belated but it was considered appropriate that the amendment may be allowed. The High Court considered the law that at the time of allowing the amendment, giving finding against the allegations in the intended amendment without allowing the same was improper. Although the application was belated but it was considered appropriate that the amendment may be allowed. From the narration of facts in the said decision of G. Madhusudhana Reddy, it is apparent that the pleas which were sought to be introduced by way of amendment were legal pleas to the effect that suit for mere partition was not maintainable without seeking cancellation of several documents executed by the mother and grand-mother and consequently that as the mother pre-deceased their grand-mother, the calculation of plaintiff s share based on the death of their mother was bad in law. Such amendment was allowed on payment of costs. 20. On the other hand, in the case of Hanuwant Singh Rawat (Supra), this Court was concerned with applications for amendment filed by the defendant-appellant seeking to amend the written statement and so also memo of app