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2011 DIGILAW 2549 (HP)

Ganga Varti v. State Of H. P.

2011-11-22

SURINDER SINGH

body2011
JUDGMENT : Surinder Singh, J. The plaintiffs/appellants lost their case in both the courts below, hence the present Regular Second Appeal, which was admitted on the following substantial questions of law: (i) Whether the Lower Appellate Court has wrongly rejected the application for amendment of the plaint being belated and not maintainable in the appeal as not the lower appellate Court committed illegality in deciding the proposed plea of amendments on merits? (ii) Whether the findings of the trial Court on issue No. 5 regarding valuation of the suit are bad in law in the absence of rendering any conclusion as to what was correct valuation of the suit for purpose of court fee and jurisdiction, particularly when the same was likely to affect the jurisdiction of the trial Court as well as the jurisdiction of the appellate Court? 2. Appellants hereinafter referred to as 'the plaintiffs' filed suit claiming themselves to be in adverse possession of the suit land owned by the respondent-State. According to them, the Deputy Commissioner, Kinnaur had wrongly allotted the land comprised in khasra No. 1362/2 measuring 0-20-07 hectares under the Nautor Rules to respondent No. 2 Shri Hari Dev and also a part of suit khasra No. 1355/1 and 1356/1 measuring 0-19-77 hectares in favour of defendant-respondent No. 3, real brother of defendant No. 2. It is alleged that defendants had been threatening to disturb the right and peaceful possession since their forefathers over the suit land hence the plaintiffs sought declaration to the effect that they have become owners of the suit land by way of adverse possession and also declaring allotment in favour of the defendants as wrong and illegal with a consequential relief of permanent prohibitory injunction restraining the defendants from disturbing their possession. 3. Defendants resisted and contested the suit by filing written statement. Defendant No.1 averred that the suit land was a waste land owned and possessed by the State Government. The adverse possession has been denied. It is also averred that had the plaintiffs been in its possession, their names would have found mentioned in the recent settlement record and that the village right-holders have right over this land to acquire it under "Nautor Rules". The adverse possession has been denied. It is also averred that had the plaintiffs been in its possession, their names would have found mentioned in the recent settlement record and that the village right-holders have right over this land to acquire it under "Nautor Rules". It is also averred that defendants No. 2 and 3 were fully covered under the "Nautor Rules" and the allotment to them was in accordance with the said Rules and the plaintiffs did not challenge their allotment under the said statutory rules before any Forum. The defendants also disputed the cause of action as also the jurisdiction and valuation of the Civil Court. 4. Private defendants No. 2 and 3 also took up similar preliminary objections as that of defendant No. 1. Even the adverse possession over the suit land was denied. The land was stated to be allotted to them under the Nautor Rules. Further, during the inquiry u/s 163 of the Himachal Pradesh Land Revenue Act with respect to the encroachment made, earlier in the year 1992, plaintiffs No. 2 stated having possessed the land only in the year 1992 and having raised single room and planted apple plants. Prior to that the suit land was barren and vacant owned by the State Government. Therefore, there was no question of adverse possession. 5. In replication, defendants' contentions were refuted and even paras on merits were re-asserted by them. 6. On the pleadings of the parties, following issues were framed by the learned trial Court:- (i) Whether this court has jurisdiction to try and decide this suit? OPP (ii) Whether the plaintiffs have become owners of suit land by way of adverse possession, as alleged? OPP (iii) Whether allotment order of Deputy Commissioner Kinnaur, allotting khasra No. 1362/1 to defendants NO. 2 and khasra Nos. 1356/1 and 1355/1 to defendant No. 3 in Nautor are void, inoperative as alleged? OPP (iv) Whether the plaintiffs have no locus standi to file the suit? OPD (v) Whether the suit is not properly valued for the purposes of court fee and jurisdiction ?OPD (vi) Whether the plaintiffs are estopped from filing this suit, as alleged? OPD (vii) Relief. 7. To prove their case, Suman Parkash one of the plaintiffs examined himself as PW1. OPD (v) Whether the suit is not properly valued for the purposes of court fee and jurisdiction ?OPD (vi) Whether the plaintiffs are estopped from filing this suit, as alleged? OPD (vii) Relief. 7. To prove their case, Suman Parkash one of the plaintiffs examined himself as PW1. He stated that right from the time of his fore-father, they had encroached upon the suit land measuring 16 bighas owned by the State government and no body raised any objection and that defendants No. 2 and 3 were wrongly allotted part of the suit land under the Nautor Rules. He could not state when his grand-father came to possess the suit land. Admittedly he also did not raise any objection during Girdawari which according to him is conducted twice in a year. His statement was recorded on 6.8.1998, on which date, he stated the age of the apple plants 4 to 5 years standing thereon, meaning thereby that it was planted in the year 1993-94 whereas the suit was filed in the year1996. He also stated that before the allotment of the land in favour of defendants No. 2 and 3, plaintiffs had never shown their hostility with respect to their possession. He did not remember as to when the ejectment orders were passed by the Tehsildar. PW2 Ganga Varti widow of late Sh. Sarjan Singh admitted that Dhan Kumar and Hari Dev were rightly granted Nautor. PW3 Jai Singh only stated about the possession of late Sh. Sarjan Singh husband of PW2 over the suit land. PW4 neighbour of the plaintiffs Bhaginar also stated about the possession of the plaintiffs but in cross-examination he stated that he did not see any one cultivating the land for the last 12 years, but he could not say if there is any plant over the suit land. 8. DW1 Rajesh Kumar produced the ejectment file and DW2 Hari Singh Kanungo the then Patwari had prepared the encroachment case against Ganga Varti. He specifically stated that Smt. Ganga Varti had recently encroached upon the land in the year 1992 and he prepared the encroachment file against her. 9. DW3 Prem Singh, the Office Kanungo corroborates the version of DW2. DW Bhagat Ram stated that when the land was allotted to the defendants, there was no structure over or nearby it. He specifically stated that Smt. Ganga Varti had recently encroached upon the land in the year 1992 and he prepared the encroachment file against her. 9. DW3 Prem Singh, the Office Kanungo corroborates the version of DW2. DW Bhagat Ram stated that when the land was allotted to the defendants, there was no structure over or nearby it. DW Chet Ram stated that at one place Ganga Varti had raised a room, planted the apple trees but he could not pin-point khasra number over which the said structure or the plantation was made. 10. On the strength of the aforesaid evidence, learned trial Court decided issues No. 1 and 5 in affirmative and others in negative. As such the suit was dismissed. 11. The plaintiffs challenged the judgment and decree aforesaid before the first appellate Court and also moved an application under Order 6 Rule 17 of the CPC seeking amendment in the plaint on the grounds that plaintiffs No. 2 and her family were living in village Ribba and were in open, peaceful and hostile possession of the suit land to the knowledge of defendant No. 1 and further sought amendment in the plaint on the ground that the Deputy Commissioner while allowing the suit land to defendants No. 2 and 3 violated the Nautor Rules and they were not entitled to grant of Nautor land in Up-Mohal Holding-Tehsil Moorang District Kinnaur, Himachal Pradesh as they are not right-holders therein nor permanent residents of that estate. 12. The application was resisted and contested by the defendants denying the above facts. According to them, the allotment order could have only been agitated under the Himachal Pradesh Nautor Rules, 1968 and not in Civil Court. 13. On re-appraisal of the evidence, the learned first appellate Court did not find that the plaintiffs could establish the plea of adverse possession and also dismissed the application on the ground that plaintiffs have miserably failed to establish its adverse possession and the plaint was sought to be amended much after the institution of the appeal with a view to hang on, to the suit land for some more time. It was vacant and barren land belonging to the State Government. It was vacant and barren land belonging to the State Government. It was also nowhere in the case of the plaintiffs that they had no notice of the allotment of the portion of the suit land in favour of defendants No. 2 and 3 which could have been assailed by them in appeal. Hence the application as well as appeal, both was dismissed. 14. The plaintiffs did not feel satisfied as such filed the present Regular Second Appeal. 15. Shri Neeraj Gupta, learned counsel for the plaintiffs vehemently argued that the application of the plaintiffs was wrongly rejected by the learned first appellate Court on the aforesaid ground. Further that the findings on Issue No. 5 regarding valuation by the learned trial Court were bad in law particularly when the same was material to effect the jurisdiction of the learned trial Court. 16. On the other hand, learned counsel for the defendants forcefully argued that moving the application for seeking amendment was just made to prolong the matter. In substance, pleadings with respect to the adverse possession were sufficiently contained in the plaint and parties knowing fully well their case led the evidence. Further that the objection of valuation was only taken by the defendants which was refuted by the plaintiffs, therefore, they could not raise any grouse with respect to valuation as the trial Court findings have not materially prejudiced the plaintiffs. 17. While considering both the contentions raised by the learned counsel for the plaintiffs, I do not find any force therein to upset the concurrent findings of the courts below. 18. Legally, the material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on grounds outside the pleadings before or during the trial of the case. If fresh information has come to hand; interrogatories have been fully answered by his opponent; documents whose existence was unknown to him have been disclosed which necessitates reshaping his claim or defence or his opponent may have raised some well-founded objections to his pleadings, in that case only amendment in pleadings could be justified before it is too late. 19. If fresh information has come to hand; interrogatories have been fully answered by his opponent; documents whose existence was unknown to him have been disclosed which necessitates reshaping his claim or defence or his opponent may have raised some well-founded objections to his pleadings, in that case only amendment in pleadings could be justified before it is too late. 19. The object of Order 6 Rule 17 of the Code is that the courts should try the merits of the case that comes before them and should consequently 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. Mere delay is not a ground for refusal to amendment unless actuated by malafidies. 20. It is also well settled that ultimately courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties. Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them. 21. In the instant case, the plaintiffs clubbed both the aforesaid grounds by way of proposed amendment which were more or less already taken by them in their pleadings during the trial and the issues were also framed on those pleadings. The parties knew their case fully well and also led their evidence. The learned trial Court also gave its findings. Therefore, the amendment sought by the plaintiffs is not at all necessary for the proper and effective adjudication of the subject matter in the case since having already been broadly covered in their pleadings in the plaint. Therefore, the dismissal of the application seeking amendment was right as it did not fall within the parameters referred to above. Further, if the plaintiffs felt aggrieved by the order of allotment in favour of defendant No. 2 and 3, they could have also availed statutory remedy to challenge it before the appropriate Forum under the relevant rules. As already stated above proposed amendments are not at all necessary in the above factual background, thus no error is committed by the learned first appellate Court by dismissing the said application. As already stated above proposed amendments are not at all necessary in the above factual background, thus no error is committed by the learned first appellate Court by dismissing the said application. Further no evidence was led by the parties qua correct valuation of the suit for the purposes of Court fee and jurisdiction, thus the findings arrived at by the learned trial Court on Issue No.5 against the plaintiffs would also not change the ultimate fate of the case. Hence it cannot be considered as a question of law much less the substantial questions of law. Both the points are accordingly answered. 22. The appeal sans merit and is accordingly dismissed with costs.