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2012 DIGILAW 286 (KER)

Rahima Ummal Sara Ummal v. Sarasamma

2012-03-09

K.T.SANKARAN

body2012
JUDGMENT : K.T. Sankaran, J. 1. The question involved in this Original petition is whether a plea of easement by prescription made by the defendants in the written statement on a mistaken impression that the property in question belongs to the defendants can be substituted by a contention that the pathway in question is a public pathway and the land is a puramboke land. 2. The suit was filed by the respondent in 1989 for an injunction restraining the defendants from destroying the 'B' schedule pathway or from obstructing the plaintiff from using the pathway. There is also a prayer for declaration of easement right over the 'B' schedule pathway. In paragraph 4 of the plaint, the pathway was clearly described and it was stated that the pathway was being used by the plaintiff and the defendants and their predecessors in interest and others as a pathway for the last more than 75 years. In paragraph 11 of the plaint, as originally stood, the plaintiff stated that the defendants have no right to destroy the pathway which was being used as a public pathway. 3. The plaint was amended adding paragraph 8 (a) in the plaint and also adding schedule 'C' to the plaint. In Paragraph 8(a) of the plaint, it was stated that on the basis of the contention put forward by the second defendant that the pathway belongs to him, for the sake of avoiding any possible objection of a lack of plea, the property in the possession of the defendants and the 'B' schedule pathway, which is part of the same was included in the 'C' schedule. 4. With the above pleadings, the parties went to trial. By the judgment and decree dated 31.8.1991, the trial court dismissed the suit. The plaintiff filed appeal. During the pendency of the appeal, the plaintiff filed I.A.No.228 of 1997 for amendment of plaint to add a plea that the pathway in question is a public pathway. It was stated that the plaintiff came to know after the dismissal of the suit that the land over which the pathway exists, is a purarnboke land and that it does not belong to the defendants. Accordingly, rights were claimed over the pathway as a public pathway. It was stated that the plaintiff came to know after the dismissal of the suit that the land over which the pathway exists, is a purarnboke land and that it does not belong to the defendants. Accordingly, rights were claimed over the pathway as a public pathway. The plaintiff also filed I.A.No.233 of 1997 under Rule 27 Order 41 Code of Civil Procedure- to receive additional documentary evidence According to the plaintiff, these additional documents would establish that the pathway is really in a puramboke land belonging to the Government. The appellate court dismissed the aforesaid applications and also dismissed the appeal. The plaintiff filed a Second Appeal. The Second Appeal was allowed and the case was remanded to the trial court for fresh disposal. For the sake of convenience, the relevant portions of the judgment of the Second Appellate Court are extracted below: "4. The first appellate court rejected I.A.No.228 of 1997 for amendment of plaint on the ground that it is inconsistent with the plea in the plaint regarding easement (by way of necessity or prescription). It is true that there is a plea in the plaint that appellant has right of easement over the disputed way and a declaration of that easement over the disputed way and a declaration of that easement is also prayed for. But it is not stated that the easement claimed is by way of necessity or by prescription. In fact, in the plaint as originally pleaded appellant had also claimed that plaint B schedule is part of public way though it was not stated in so many words that it is Government Puramboke way which fact according to the appellant came to her knowledge only during pendency of the first appeal. I must bear in mind that though a declaration of right of easement was payed for as relief No. 2, relief No.1 prayed for is a decree for prohibitory injunction and if the courts below found that plaint B schedule is part of public way as pleaded by the appellant, it may have been possible to grant a decree for prohibitory injunction based on that finding. The trial court also failed to take note of this aspect. The trial court also failed to take note of this aspect. I must also bear in mind that it was open to the appellant to raise inconsistent pleas regarding B schedule way but, of course she had to confine herself to one or the other plea at the time of the trial. It is in answer to the contention raised in the written statement as if the disputed plaint B schedule formed part of property of respondents that plaint was amended to incorporate paragraph 8(a) and C schedule. Even if it is assumed that there is an admission regarding right of easement as first appellate court would point out, it was not as if a party could not explain his admission. Appellant has a case that she got information about the true nature of the disputed way only during pendency of the first appeal. These aspects ought to have been taken into account by the learned Sub Judge while deciding I.A.No.228 of 1997 but of course, I am not deciding the question whether that application ought to have been allowed or not. The proper course is to send the case to the trial court for fresh disposal. Dismissal of I.A. Nos.228 and 233 of 1991 are set aside and those applications along with the documents produced in appeal are also transmitted to that court for decision in the light of the position of law. Learned Munsiff shall dispose of I.A. Nos.228 of 1997 and 233 of 1997 before proceeding with trial of the case. While considering these applications trial court necessarily shall consider the objections raised by respondents to the said applications." 5. After remand, the trial court allowed the application for amendment of the plaint and also allowed the application under Rule 27 Order 41 Code of Civil Procedure filed by the plaintiff, as per Exts.P 12 and P1 3 orders respectively, which are under challenge in this Original Petition. 6. The trial court held in Ext.P 12 order that it cannot be said that the admission made by the plaintiff was withdrawn. It was also held that there was nothing improper to allow the plaintiff to amend the plaint, seeking a relief of prohibitory injunction instead of declaration of easement right. The application for amendment was allowed on condition, of payment of costs of Rs.2,000/-. It was also held that there was nothing improper to allow the plaintiff to amend the plaint, seeking a relief of prohibitory injunction instead of declaration of easement right. The application for amendment was allowed on condition, of payment of costs of Rs.2,000/-. As regards the reception of additional documents, it was held that the documents in question are relevant for /proving that the plaint 'B' schedule pathway is part of a puramboke land. 7. Sri V. Suresh, the learned counsel appearing for the petitioners submitted that the orders passed by the court below are illegal, without jurisdiction and unsustainable. The counsel submitted that as per the application for amendment, an admission made by the plaintiff is sought to be taken away, which is not permissible, particularly at this belated stage. The counsel submitted that paragraph 8(a) of the plaint and the plaint 'C' schedule as well as the relief for declaration of easement right are sought to be deleted byway of amendment of plaint. Having admitted that the property in dispute belongs to the defendants, the plaintiff cannot be allowed to withdraw that admission and contend that the land in question is a puramboke land. Counsel of the petitioners relied on the unreported judgments in WP(C) No.33769 of 2005 and FAO No .229 of 2009 and the decision of the Supreme Court in Gautam Sarup v. Leela Jelly and others, (2008) 7 SCC 85 : 2008 ICO 6893. The counsel also pointed out that the deletion of the second proviso to Rule 4 Order 12, by the Code of Civil Procedure Amendment Act, 1999, Act 46 of 1999 also points to the legislative intent that an admission cannot be allowed to be withdrawn. 8. In the plaint, the plaintiff clearly stated that he has a right to use the pathway and that the plaintiff, the defendants, their predecessors in interest and others were using the pathway for the last 75 years. It is also stated in the plaint that the pathway is being used as a public pathway. Retaining these averments, paragraph 8(a) of the plaint was incorporated by way of amendment to cope up with the contentions put forward by the defendants. By way of amendment, plaint 'C' schedule was also incorporated which may indirectly indicate that the pathway runs through a land in the possession of the defendants. Retaining these averments, paragraph 8(a) of the plaint was incorporated by way of amendment to cope up with the contentions put forward by the defendants. By way of amendment, plaint 'C' schedule was also incorporated which may indirectly indicate that the pathway runs through a land in the possession of the defendants. An casement by prescription was also claimed which presupposes the right of the defendants over the land in question. Thus it is seen that there was inconsistent and mutually destructive contentions and averments in the plaint and the parties went to trial with those pleadings. Later, it was revealed to the plaintiff, according to him, that the pathway is a puramboke land and it does not belong to the defendants. I do, not think that the claim of easement by prescription which presupposes the admission of title of the defendants cannot be withdrawn if it is revealed that the land in question is a puramboke land. An indirect admission based on a mistaken fact is sought to be corrected by withdrawing the same. If an admission is made on the foundation of an erroneous set of facts, which, if found later to be erroneous, a party can bring it to the notice of the court. It would not be a withdrawal of admission, which the parties are precluded from doing in the normal course. It is only to correct a mistaken impression about the real facts. A mistake of fact can be corrected though the result of the same would be withdrawal of an admission based on those mistaken facts. A party cannot be denied the right to put forward a contention that the facts on the basis of which he pleaded certain things were found to be erroneous and therefore, he should be permitted to correct the same and withdraw the contention. It is not a case where the plaintiff pleaded an easement by prescription alone and later withdrew that plea and put forward an inconsistent plea of a public right. On the other hand, it is a case where inconsistent pleas were originally available in the plaint and after discovery of new and important facts, the plaintiff sought to correct the errors and to, amend his pleadings to incorporate the real facts. If a party is not allowed to do so, it would be great injustice. 9. On the other hand, it is a case where inconsistent pleas were originally available in the plaint and after discovery of new and important facts, the plaintiff sought to correct the errors and to, amend his pleadings to incorporate the real facts. If a party is not allowed to do so, it would be great injustice. 9. This court while disposing of the Second Appeal was conscious of the peculiar facts and circumstances of the case and the discovery of correct facts at a later point of time and that was why the case was remanded and the trial court was directed to consider the application for amendment of plaint and the application for receiving additional evidence afresh. 10. The decision of a learned Single Judge in WP(C) No. 33769 of 2005 was a case where the dismissal of an application for amendment of the plaint for substituting the claim of easement by prescription by a claim of right of public way was confirmed by the High Court. The facts of that case are entirely different and there was no situation where the, pleadings were made on the basis of erroneous facts. In the Judgment in FAO No.229 of 2009, it was held that a person cannot afford to have a pleading of public pathway and easement right by prescription simultaneously. In the present case, when the parties went to trial, a pleading of public pathway and an easement by prescription were available. By the amendment of plaint, the claim of easement by prescription is sought to be deleted. I am of the view that the decisions referred to above are not helpful for resolving for the controversy in the present case. 11. In Gautani Sarup v. Leela Jelly and others, (2008) 7 SCC 85 , the Supreme Court held as follows : "14. An admission made in a pleading is not to be treated in the same manner as anadmission in a document. An admission made by a party to the lis is admissible against him proprio vigore. 16. A thing admitted in view of Section 58 of the Evidence Act need not be proved. 8, Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. 16. A thing admitted in view of Section 58 of the Evidence Act need not be proved. 8, Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of 12, Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom. The decisions of this Court unfortunately in this regard had not been uniform. We would notice a few of them. 28. What, therefore, emerges from the discussions made herein before is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Of Bring explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other. 12. I am of the view that Gautam Sarup s case would be of help to the petitioner. 13. I am of the view that the court below was right in allowing the applications. No jurisdictional error, or error of law is established warranting interference under Article 227 of the Constitution of India. The Original Petition is accordingly, dismissed. Needless to say that the defendants will have a right to file additional written statement and to produce documentary and oral evidence, in the light of production of additional evidence by the plaintiff.