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2011 DIGILAW 2384 (HP)

Shirkar Sharma v. Annapurna Pathak

2011-08-10

V.K.SHARMA

body2011
ORDER : V.K. Sharam, J. By filing the present application under Order 6, Rule 17 and Section 151 of the Civil Procedure Code, applicants/defendants No. 1, 3, 4 and 5 are seeking amendment of their written statement. The prayer is opposed on behalf of the non-applicant/plaintiff. 2. It shall be necessary to notice brief facts of the case. The matter pertains to entitlement to the amount of compensation pursuant to acquisition of land. The suit has been filed by the plaintiff for recovery of Rs. 30,00,000/- (Rs. thirty lac) being principal including interest, on the ground that though he was entitled to this amount being owner of the acquired land to the extent of share, yet the amount was wrongly and illegally claimed and later on withdrawn by the replying defendants in the land acquisition proceedings and thereafter in the reference Court. 3. The amendment is being sought on two grounds. Firstly, by explaining the admission that though an amount of Rs. 12,46,395.63 paise was withdrawn by late Shri Sharangdhar Pathak, in assertion of his own independent right and the replying defendants are not bound by the same and secondly that late Shri Shridhar Guleri, who was the owner of the acquired land to the extent of share, had executed a Will in favour of Madhukar Pathak and Karunakar Pathak, sons of late Shri Sharangdhar Pathak, bequeathing his entire share in the acquired land, but "However, it appears that Smt. Rajeshwari Rani Pathak taking unfair and undue advantage of minority of Madhukar Pathak and Karunakar Pathak sons of late Shri Sharangdhar Pathak, manipulated entries in her name, as if she had succeeded to Shri Shridhar Guleri, but in fact she did not acquire any right, title and interest of any kind over this acquired land." 4. Insofar as the first part of the amendment sought is concerned, it would be seen that the same relates to para 11 of the plaint and corresponding para of the written statement filed earlier. In para 11 of the plaint it was specifically averred as under :- "That despite the fact that in terms of the last Will of Smt. Rajeshwari Rani Pathak, Shri Sharagdhar Pathak, the predecessor-in-interest of the defendants and the defendants were only entitled to 50% of the amounts enhanced, Shri Sharangdhar Pathak and the defendants have withdrawn the amounts of Rs. 21,22,318.25, Rs. 21,22,318.25, Rs. 3,70,473/- and the plaintiff shall only be able to realise 50% of the amount of Rs. 32,65,420/- deposited in this Court. The details of the amounts withdrawn by Shri Sharangdhar Pathak and the defendants, to the exclusion of the plaintiff are as under : a. As per orders dated 31-5-1995 Rs. 21,22,318.25 b. As per orders dated 22-12-1987 Rs. 3,70,473.00" 5. In the corresponding para 11 of the written statement it was pleaded as under :- "Contents of para-11 as alleged are wrong and hence denied. Detailed submissions have been made above. As regards to orders passed by this Hon'ble Court on 17-5-2007 the same is matter of record and plaintiff is not entitled to recover any amount from replying Defendants. In any case, if plaintiff is found entitled to any amount, the same is recoverable from State of H. P. and Dr. Y.S. Parmar University and not from replying Defendants. Since claim of the Plaintiff is barred by limitations, it is for this reason that he has not disclosed date of withdrawal of amount of compensation, nor details of the persons, who in fact receive amount of compensation. Plaintiff has already received 50% amount of compensation in compliance with the orders of this Hon'ble Court dated 17-5-2007 and this amount has been received by him without any reservation of his rights. The Defendants are not liable to pay amount as claimed. They are not liable to pay interest as claimed by the Plaintiff." 6. Thus, it would be seen that there was no specific reply in para 11 of the written statement to the averments set up in the corresponding para of the plaint to the effect that that Shri Sharangdhar Pathak had received payment of the aforesaid amount of compensation. It being so it amounted to implied admission. However, be that as it may, the fact remains that now the replying defendants are coming up with specific plea that though the aforesaid amounts were in fact received by late Shri Sharangdhar Pathak, yet it was in his personal capacity and his such act does not bind the replying defendants. Thus, the proposed amendment to this extent is in a way an explanation to the implied admission, as noticed herein above. Thus, the proposed amendment to this extent is in a way an explanation to the implied admission, as noticed herein above. It being so, as far as this part of the amendment is concerned, I do not see any lawful cause or basis to decline the prayer of the defendants to this Extent. 7. Now while adverting to the second part of the amendment sought to be incorporated in the written statement, it would be seen that the same relates to para 1 of the plaint and corresponding para of the written statement, which are Extracted below :- Para 1 of the plaint "That late Smt. Rajeshwari Rani Pathak daughter of late Rai Bahadur Sunder Lal Pathak, who was a resident of Pathak Bhavan, Sunnu Side, Solan and was the aunt (Masi) of the plaintiff, had landed properties including properties in District Solan. Smt. Rajeshwari Rani Pathak died, issueless, on 3-12-1983 and she had left behind a Will dated 11-11-1974 bequeathing her estate to the plaintiff and Shri Sharangdhar Pathak, who was the adopted son of the late Rai Bahadur Sunder Lal Pathak." Para 1 of the written statement "The contents of para-1 as alleged are wrong and hence denied. It is correct that Smt. Rajeshwari Rani Pathak was daughter of late Rai Bahadur Sunder Lal Pathak. She had property in her ownership and possession in District Solan. It is correct that Smt. Rajeshwari Rani Pathak died issue less on 3-12-1983. However, it is submitted that she has not executed any legal and valid will in favour of the plaintiff Dr. Shirikar Sharma. However, it is submitted that upon her death, she was succeeded by Shri Sharangdhar Pathak, exclusively. It is correct that Shri Sharangdhar Pathak was adopted son of late Rai Bahadur Sunder Lal Pathak." 8. On a bare perusal and combined and harmonious reading of the pleadings set up on behalf of the parties in para 1 of the plaint and corresponding para of the written statement, it would be seen that there is a specific admission in para 1 of the written statement that "However, it is submitted that upon her (Smt. Rajeshwari Rani Pathak) death, she was succeeded by Shri Sharangdhar Pathak, exclusively." 9. Now by way of the proposed amendment the replying defendants are seeking to incorporate the following sub para in para 11 of the written statement :- "It is further submitted that initially the acquired land was belonging to one Smt. Vidyawati and Sh. Shridhar Guleri, situated at village Padhan (Nouni), Tehsil and District Solan, H. P. In the acquired land, share of late Sh. Shridhar Guleri was 1/2. He executed a Will with respect to land of his share in favour of Madhukar Pathak and Karunakar Pathak sons of late Shri Sharangdhar Pathak bequeathing his entire share at village Padheri, Tehsil and District Solan, H. P. However, it appears that Smt. Rajeshwari Rani Pathak taking unfair and undue advantage of minority of Madhukar Pathak and Karunakar Pathak sons of late Shri Sharangdhar Pathak, manipulated entries in her name, as if she had succeeded to Shri Shridhar Guleri, but in fact she did not acquire any right, title and interest of any kind over this acquired land. However, she having succeeded to manipulate the entries of ownership in her favour with respect to acquired land, filed reference petition under Section 18 of the Land Acquisition Act for enhancement of the amount of compensation, as a result of which the matter came up in the Hon'ble High Court of H. P. in appeal. Since Smt. Rajeshwari Rani Pathak acquired no right, title and interest of any kind over this land, therefore, she was not entitled to any amount of compensation and, therefore, with respect to share of acquired land of Shridhar Guleri, Madhukar Pathak and Karunakar Pathak sons of late Shri Shrangdhar Pathak became absolute owner in possession. Since no amount was payable to Smt. Rajeshwari Pathak in the acquired land, therefore, Will as set-up by the present plaintiff, Dr. S.K. Sharma is illegal, void and inoperative against the replying defendants." 10. The above amendment, if allowed, would in essence nullify the admission already made by the replying defendants to the effect that upon the death of Smt. Rajeshwari Rani Pathak, she was succeeded by Shri Sharangdhar Pathak exclusively. To my mind, such an amendment cannot be permitted simply for the reason that it totally takes back admission earlier made, which amounts to a vested right having been created in favour of the plaintiff. 11. To my mind, such an amendment cannot be permitted simply for the reason that it totally takes back admission earlier made, which amounts to a vested right having been created in favour of the plaintiff. 11. While arriving at the above inference I may submit with due respect that the proposition of law laid down by the Hon'ble Apex Court in Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors., AIR 2007 SC 1663 (paras 18 and 19), Sumesh Singh v. Phoolan Devi & Ors., AIR 2009 SC 2831 , (Para 10) and Sushil Kumar Jain v. Manoj Kumar & Anr., 2010 (1) CCC 446 : ( AIR 2009 SC 2544 ), as relied upon on behalf of the replying defendants though in law cannot at all be disputed, yet on facts, the authorities relied upon do not apply to the peculiar facts of the present case. 12. In view of the above, the application is partly allowed in the above terms. Let amended written statement be filed within three weeks from today. Amended replication, if any, be filed within further three weeks. Thereafter, the matter be listed for admission and denial, if any, before the Addl. Registrar (Judicial) and then the matter be listed for framing of additional issues, if any. The application stands disposed of. 13. The observations made herein above in this order are limited for the purpose of disposal of the present application and the same shall have no bearing whatsoever, on merits of the case.