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2008 DIGILAW 137 (JK)

Gh. Rasool v. Ali Bangroo

2008-04-23

SUNIL HALI

body2008
1. This revision petition has been preferred against the order passed by the learned Second Additional Munsiff, Srinagar on 19-6-2006. 2. Before adverting to the controversy involved in the petition, it is worthwhile to mention some brief facts: - The parties to the suit have common ancestor namely, Qadir Hanji, who had two sons Aziz Hanji and Rehman Hanji and two daughters Mst Bibi and Mst Flari. Mst Bibi pre-deceased her father and after her death she was survived by daughter Mst Dadri and Son Lassi Math. Lassi Math died issue less and Mst Dadri had one son, namely, Azim Bangroo, who has three sons Ali Bangroo, Mohd. Yousuf and Ghulam Nabi. Lassi Math and Dadri survived Mst Bibi who had died during the life time of her father and therefore, in view of operation of law of shariat, Mst Dadri and Lassi Math who was unmarried lost the right of inheritance and the said right got extinguished by reason of death of Mst Bibi. At the time of his death Lassi Math was minor under the custody of father. There is no dispute to this proposition that he was not entitled to inherit the property of Grandfather Qadir Hanji. However, by virtue of an agreement signed and executed by the descendant of Qadir Hanji with the father of Lassi Math it was agreed that he will have life time interest in the estate of his grand father and after his death the land would revert back to the legal heirs of Qadir Hanji. In other words the Lassi Math had a limited right to enjoy the property during his life time and could not transfer by alienation the said property. Lassi Math however, during his life time executed two sale deeds in favour of his nephew Azim Bangroo. It is important to mention that the property which was given to Lassi Math by virtue of an agreement was in the shape of land measuring 2 Kanal 5 Marias comprising in Khewat No. 13, Survey No. 375 and land measuring 3 Kanals covered by Survey No. 79-Min situate at Rampura Chattabal, Srinagar. This property, has been alienated by him. It is also admitted case of the parties that Lassi Math during his life time had challenged sale deed in Civil Court on the ground that the same was obtained on the basis of mis-representation and fraud. This property, has been alienated by him. It is also admitted case of the parties that Lassi Math during his life time had challenged sale deed in Civil Court on the ground that the same was obtained on the basis of mis-representation and fraud. The matter was finally concluded in the High Court whereby the suit of Lassi Math was dismissed. During the pendency of the appeal, the plaintiffs in the suit tiled an application before High Court. It was again dismissed. However, the liberty was given to the plaintiff to file the suit in the proper Court to challenge the sale deeds executed by Lassi Math. It is under these circumstances that the Civil suit came to be filed before the Court below in the year, 1995 in which the following prayer was made: - a) A decree in the nature of declaration -be issued in favour of the plaintiffs and against the defendants declaring the document of sale deed executed by Lassi Math in favour of Azim Bangroo as null and void-and against the tenants of law of shariat; b) A decree in the nature of declaration lie issued in favour of the plaintiffs and against the defendants declaring the plaintiffs as the lawful persons to inherit the property of Mst. Bibi. c) A decree in the nature of ejectment be issued in favour of the plaintiffs and against the defendants for evicting the defendants from the suit property/ land which is fully described in the document annexed with the plaint and plaintiffs be put into the possession of the said land. d) A decree in the nature of perpetual injunction be issued in favour of the plaintiffs and against the defendants restraining the defendants from alienating the land or changing its nature or extinguishing its present position shown in the annexed document." 3. It is important to mention that the present plaintiffs are the descendants of Aziz Hanji and Rehman Hanji, who were the heirs of Qadir Hanji and claimed this property on reversion as legal heirs. It is important to mention that the present plaintiffs are the descendants of Aziz Hanji and Rehman Hanji, who were the heirs of Qadir Hanji and claimed this property on reversion as legal heirs. The suit clearly elaborates- a. That Lassi Math had a limited life time interest in the property of his grand father Qadir Hanji which he could not alienate during his life time; b. That despite stipulation in the agreement he has executed two sale deeds in favour of defendant which is illegal in as much as he had limited right of enjoyment over the property and could not transfer the same by virtue of the sale deed; c. That the execution of the sale deed by un-authorized person is illegal in the eyes of law and the plaintiffs are entitled to the possession of the property. 4. During the pendency of this suit, an application came to be filed under O.6 R.17 Code of Civil Procedure seeking elaboration/ elucidation of the facts. It was further contended in the application that the amendment as such will not alter or/ change the nature of the controversy in suit. It would be only supplementing the deficiency in material particulars in the plaint. It was further contended in the application that the petitioners may be permitted to claim the relief of possession. This application was contested by the respondents before the trial Court on the ground that if the application seeking amendment is allowed it will change the controversy involved in the suit. There is no need to amend the plaint. The material placed by the plaintiffs in the suit was sufficient to determine the controversy in the suit. 5. The trial Court allowed the prayer of the plaintiffs to the extent that they are allowed to amend the relief clause by substituting the word "possession instead of "eviction". The second prayer for amendment sought by the plaintiffs was declined. It is under these circumstances the present revision petition has been filed before this Court. 6. I have heard the learned counsel for the parties and perused the record. Order 6 Rule 17 of the Code of Civil Procedure reads as under. The second prayer for amendment sought by the plaintiffs was declined. It is under these circumstances the present revision petition has been filed before this Court. 6. I have heard the learned counsel for the parties and perused the record. Order 6 Rule 17 of the Code of Civil Procedure reads as under. - O6 R17: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 7. Bare reading of Order 6 Rule 17 CPC shows that the amendment can be permitted if it is necessary for the purpose of determining the real questions in controversy between the parties in the suit perusal of the afore mentioned order would reveal that the facts sought to be introduced through amendment must be those facts which are necessary for the purpose of determining the real questions of controversy. Only those facts can be permitted which are material for the purpose of determining the controversy. 8. Before adverting to the nature of the controversy in the revision petition, it is necessary to quote Order 6 Rule 2 and Rule 5 of the Code of Civil Procedure- Rule 2: Pleadings to state material facts, and not evidence: (1) Every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence in which they are to be proved; (2) Every pleading shall when necessary, be divided into paragraphs, numbered consecutively, each allegation being so far as it convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words; Rule 5: further and better statement or particulars: A further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading, may in all cases be ordered upon such terms as to costs and otherwise as may be just. 9. 9. Order 6 Rule 2 CPC indicates that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved. In essence the rule says that the facts stated must be material facts and not evidence. The facts are of two kinds, facta probanda and facts probantia. Facts on which the party pleading relies for his claim or defence are called facta probanda and the facts by means of which they are to be proved are called facts probantia. The former are material facts, the latter evidence to prove the former. Order 6 Rule 5 CPC permits a party to file a better statement, claim or defence or further better particulars of any material facts stated in the pleadings. 10. The conjoint reading of two Rules would reveal that if there is any deficiency in the material facts, it is only in those cases that the better particulars are required. Order 6 Rule 5 does not contemplate of producing better particulars in respect of the matter which is only a matter of evidence. It is only in cases where better particulars are required when the material facts are lacking in the same not on facts which can be proved by evidence. 11. Adverting to the principle of grant of amendment under 0. 6 R17 CPC, it is stated that only those facts which are necessary for determination of the real controversy in question, between the parties. Adverting to the facts of the case the plaintiffs in the suit have clearly mentioned in paras 2,3,4,5,6 and 8 the material facts on the basis of which they seek to prove their case. The plaintiffs have clearly stated that Lassi Math had a life time interest in the property given to him by virtue of an agreement executed by Qadir Hanji. It is further stated in the plaint that he could not during his life time alienate the suit property. The plaint further states that despite the fact he did not have any authority to transfer/alienate the land he executed the sale deed in favour of the defendant which was illegal ab initio. 12. It is further stated in the plaint that he could not during his life time alienate the suit property. The plaint further states that despite the fact he did not have any authority to transfer/alienate the land he executed the sale deed in favour of the defendant which was illegal ab initio. 12. According to the defendant (respondent), the application for seeking amendment is not maintainable, as plaintiff seeks elucidation of facts by virtue of this amendment which is not required as the same is not necessary for determination of the controversy involved. The courts power under revision are confined to error of jurisdiction or exercise of jurisdiction which is not vested in the court or there is any material irregularity or if there is failure of justice. None of the grounds taken in the revision petition are involved in the present petition. The courts below have held on facts that the present amendment cannot be permitted as it is not satisfying the conditions of O. 6 R. 17. 13. For what has been stated above I dismiss the revision petition. It is observed that the matter needs immediate disposal and I hope that the trial court would conclude the same within a period of one year. 14. Learned counsel for are parties are directed to cause appearance of their clients before the trial court on 3rd of May, 2008.