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2009 DIGILAW 796 (HP)

Satya Parkash v. State of H. P.

2009-09-15

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J. 1. This an application under Order 6 Rule 17, Order 41 Rule 33 read with Section 151 CPC for amendment of plaint, framing of additional issues and for remand of the case for deciding the new issues. 2. The facts in brief are that applicants are the plaintiffs, they had filed a suit for permanent prohibitory injunction with respect to land more specifically identified in the plaint. It is the case of the applicants that they and other tikadarans are in separate individual possession of their respective shares in the suit land which was broken up by the applicants and other proprietors of tika for cultivation and was also partitioned. The suit land never vested in Gram Panchayat nor in State of Himachal Pradesh and the mutations of vestment attested in favour of Gram Panchayat and later on in favour of State of H.P. are null and void. 3. The respondents had contested the suit and took preliminary objections of jurisdiction of Civil Court to try the suit, non-joinder of necessary parties, valuation, limitation, and mis-joinder of causes of action. It was denied that the suit land was partitioned among the proprietors. The applicants were never in individual cultivating possession of the suit land. The suit land had rightly vested in the Gram Panchayat and then in the State of Himachal Pradesh and land measuring 527 kanals 17 marlas out of the suit land was kept in reserve pool for the use of common purpose of the villagers. The applicants were ejected from the suit land and are not in possession thereof. The private respondents had filed a written statement and submitted that suit land was allotted to the allottees who are in possession thereof. The applicants have no concern with the land allotted to the allottees. The suit was dismissed by learned Sub-Judge 1st Class, (1), Hamirpur on 31.1.1990. In appeal learned District Judge has dismissed the appeal but it has also been observed in the appeal that in case the applicants are found in possession of any part of the suit land, then they cannot be dispossessed or ejected from the suit land except by following due course of law. The applicants are in second appeal which has already been admitted. 4. The applicants are in second appeal which has already been admitted. 4. The applicants intend to make following addition by way of amendment: 8(a) That the provisions of Punjab Village Common Lands (Regulation) Act, 1961 as also the provisions of the H.P. Village Common Lands ( Vesting and Utilization) Act, 1971 are not applicable in view of the fact that the plaintiffs are in continuous cultivating possession of the specific land and have also made their abadies and entered into transfer with respect to the land and prior to 1911, the land was recorded as 'Majrua' and 'Gair Majrua' and the predecessors of the applicants were in long continuous possession prior to 1911, which possession even otherwise has matured into ownership by way of such possessing being open, continuous and to the knowledge of all and the applicants are owners in possession in the alternative by afflux of time. Also no inquiry has been made in accordance with Ride 9 of the H.P. village common Lands (Vesting and Utilization) Act and rides framed there under and further after the amendment to the H.P. Village Common Lands Vesting and Utilization) Act, 1974 by the amendment Bill No. 15 of 2001, the amendments have been made to the provisions of Sections 2, 3, 8, 8(a) as also substitution of Section 5 and insertion of Section 9(a) and as such, the land in question cannot vest in the Gram Panchayat as also the Slate of Himachal Pradesh and the plaintiffs are owners in possession in view of the amendment, 2001 to the Act and as such, are entitled to the relief of permanent prohibitory injunction as also for declaration thai they have become the owners by amendment to the aforesaid Act as also by afflux of time and are entitled to protection of their possession and as such the relief of permanent injunction be given to the plaintiffs as also declaration to the effect that the plaintiffs are owners in possession and the entries contrary to the interest of the plaintiffs are not in accordance with law and procedure. 5. 5. In para-14 the applicants intend to add as follows: The plaintiffs are the oivners in possession in view of the H.P. Village Common Lands (Vesting and Utilization Amendment) Bill 2001 incorporated in the H.P. Village common Lands (Vesting and Utilization) Act, 1974 and the entries to the contrary are wrong, without following any procedure as also not in consonance with the law and further the plaintiffs have become owners by afflux of time and are the owners in possession. 6. Thereafter applicants in the prayer intend to add as follows: as such, the plaintiffs are entitled to the decree of permanent prohibitory injunction as also for declaration that the plaintiffs are the owners of the suit land and the defendants be restrained from interfering in the possession, cultivation, abadi as also be restrained from making any changes contrary to the interests of the plaintiffs. The applicants have also suggested that following additional issues may also be framed: 1. Whether the suit land can validly be vested in the Gram Panchayat and the State of H.P, in view of the amendment of the Act, 2001? OP Parties? 2. Whether the plaintiffs are owners in possession in view of the Amendment of 2001 to the Act and whether revenue entries without any basis and inquiry are invalid and do not affect the rights of the plaintiffs? OP Parties. 7. The Section 16 of Code of Civil Procedure (Amendment) Act, 2002 provides repeal and savings, clause (b) of Sub-section (2) of Section 16 of Code of Civil Procedure (Amendment) Act, 2002 is as follows: (1) xxxxxxx (2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,-- (a) (b) the provisions of Rules 5,15,17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act. In view of clause (b) of Sub-section (2) of Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 and the fact that the suit was filed in the year 1984 the amendment application is to be considered in light of statutory provisions for amendment of pleadings as existed prior to coming into force of Code of Civil Procedure (Amendment) Act, 1999 and Code of Civil Procedure (Amendment) Act, 2002. 8. The respondent No. 1 has contested the application and has taken several preliminary objections such as application is not maintainable. The H.P. village common Land Vesting and Utilization (Amendment) Act, 2001 (for short 2001 Act) is not applicable in the instant case. The suit land has already vested in the State of H.P. under the H.P. Village Common Land (Vesting and Utilization) Act, 1974 (for short Act). The application is barred by delay and laches. On merits also the respondent No. 1 has contested the application and prayed for dismissal of the application. The applicants have filed rejoinder and reiterated their case set up by them in the application. 9. Heard and perused the record. In the original plaint the applicants have put forward simple case for permanent prohibitory injunction on the grounds that applicants and other proprietors of the tika have already partitioned the suit land and suit land is in separate cultivating possession of the applicants. It is also the case of the applicants that the suit land had never vested in the Panchayat and thereafter in the State under the Act. The applicants have based their application for amendment of the plaint mainly due to the reason that the Act has been amended by 2001 Act. In proposed para 8(a) the applicants intend to take the plea that Punjab Village Common Lands (Regulation) Act, 1961 and Act are not applicable to the suit land. No enquiry under Rule 9 of the H.P. Village Common Lands (Vesting and Utilization) Rules 1975 has been conducted. In view of amendment of principal Act by 2001 Act the land in question cannot vest in State of H.P. The applicants have become owners by afflux of time. The applicants are entitled to declaration to the effect that they are owners in possession of the suit land. 10. In view of amendment of principal Act by 2001 Act the land in question cannot vest in State of H.P. The applicants have become owners by afflux of time. The applicants are entitled to declaration to the effect that they are owners in possession of the suit land. 10. The applicants in the original plaint have taken the plea that the land had not vested in the Gram Panchayat or in the State of H.P. In fact there is Issue No. 2 to the effect that whether the suit land has not vested in the Gram Panchayat and in State of H.P. The applicants have taken shelter under 2001 amendment in the principal Act for amendment of the plaint. 11. The vestment of land has been provided under Sub-section (1) Section 3 of the Act, the sub-section 2 provides that Sub-section 1 of Section 3 shall not apply to lands described in clauses (b) and (c) of sub-section if, before the date of commencement of the principal Act-- (a) partition of such lands is made by the individual co-sharers through a process of law by a competent Court or authority; (b) transfer of such lands is made by the landowner by way of sale gift or exchange; (c) such land built upon by an inhabitant by raising a residential house or cow-shed. (d) Land recorded as "shamlat tika Hasab Rasad Malguzari" or by any such other name in the ownership column of jama-bandi and assessed to land revenue and has been continuously recorded in cutivating possession of the Co-sharers so recorded before 26th January, 1950 to the extent or their shares therein: Provided that the provisions of this clause shall not be applicable to such lands which have already been put to use by the Government. The clauses (b) and (c) of Sub-section 1 have been substituted by 2001 Act. The clause (d) in Sub-section 2 of Section 3 has been added by the 2001 Act. 12. The applicants have projected their case for amendment in view of amendment of the principal Act in the year 2001. The learned Counsel for the applicants has relied Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. The clause (d) in Sub-section 2 of Section 3 has been added by the 2001 Act. 12. The applicants have projected their case for amendment in view of amendment of the principal Act in the year 2001. The learned Counsel for the applicants has relied Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. (2006) 4 SCC 385, in which it has been held that Courts should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. In State of A.P. and Ors. v. Pioneer Builders, A.P. (2006) 12 SCC 119, it has been held that power to allow the amendment is wide and can be exercised at any stage of the proceedings, the Court should adopt liberal approach. However, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The Supreme Court in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (2008) 8 SCC 511 has held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. 13. The dominant factor in allowing and disallowing the amendment is that the amendment is necessary in order to adjudicate the real controversy between the parties, the amendment should not change the nature of the case and it should not cause prejudice to the other side. The proposed amendment of the applicants on factual side is not in consonance with 2001 Act and therefore, the amendment sought to be carried out by the applicants will not assist this Court for deciding the suit effectively. The proposed amendment is otherwise not available to the applicants in as much as the applicants now intend to take plea of ownership by afflux of time and they have even pleaded declaration to this effect in the proposed amendment. In other words the applicants now altogether intend to change the nature of the suit. The suit was filed on 18.5.1984 and the amendment application was filed on 22.7.2008 after about 24 years of the filing of the suit. The application is hopelessly barred by delay and laches. In other words the applicants now altogether intend to change the nature of the suit. The suit was filed on 18.5.1984 and the amendment application was filed on 22.7.2008 after about 24 years of the filing of the suit. The application is hopelessly barred by delay and laches. It appears the applicants want to delay the ultimate decision in the suit. The principal Act was amended in the year 2001 and the application for amendment was filed after about seven years when the amendment was carried out in principal Act. 14. The learned Counsel for the applicants has also relied South Konkan Distilleries and Anr. v. Prabhakar Gajanan Naik and Ors. (2008) 14 SCC 632 and Vimal Chand Ghevarchand Jain and Ors. v. Ramakant Eknath Jadoo (2009) 5 SCC 713, on the point of relating back of the amendment. This point is not directly involved in the present case. The fact remains the proposed amendment is not inconsonance with the situations contemplated in 2001 Act when the principal Act will not apply. Thus, proposed amendment is not necessary in order to adjudicate the real controversy between the parties besides the proposed amendment, if allowed, will change the nature of the suit, hence not permissible. 15. In the facts and circumstances of the case no case has been made out for amendment of the plaint, resultantly new issues also cannot framed. There is no merits in the application which is dismissed with cost quantified at Rs. 2,000/-.