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2013 DIGILAW 1242 (MP)

Vijay Bahadur Singh v. Rameshwar

2013-10-11

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J. 1. In both the aforesaid appeals filed by the plaintiff, common questions of law and fact arises therefore, they were heard analogously and are being decided by this common judgment. Second Appeal No. 672/1997 was admitted on the following substantial questions of law:-- (a) Whether defendants purchasers under sale dated 21-12-1968 from the plaintiff were estopped from denying his title? (b) Whether the Courts below fell into apparent illegality in entering upon and examining the plaintiff's title? Second Appeal No. 676/1997 was admitted on the following substantial questions of law:-- (i) Whether defendant No. 1 a purchaser under sale dated 25-11-1971 from plaintiff was estopped from denying his title? (ii) Whether the Courts below fell into apparent illegality in entering upon and examining the plaintiffs title? Today, during course of hearing the following additional substantial question of law has been framed:-- Whether the application for amendment filed by the plaintiff seeking the relief of possession dated 18-8-2011 deserves to be allowed and consequently the bar contained in proviso to Section 34 of the Specific Relief Act, 1963 does not apply to the claim of the plaintiff? The facts, giving rise to filing of the appeals, briefly stated, are that the plaintiff claimed to be the owner of the lands bearing khasra Nos. 599, 1609 and 1761 admeasuring 14.377 hectares and lands bearing khasra Nos. 586/1 and 588/1 admeasuring 5.074 hectares situate at Village Bakal, Tehsil Sihora, District Jabalpur. As per the case set forth in the plaint, the aforesaid lands devolved on the plaintiff from his father, namely, Ujiyar Singh. It was further pleaded that the plaintiffs name was recorded as Bhumiswami in the revenue record in respect of the aforesaid lands. The plaintiff was born on 11-8-1962 and attained the majority on 11-8-1980. During his minority, the mother of the plaintiff unauthorisedly and in contravention of provision of Section 8 read with Section 11 of the Hindu Minority and Guardianship Act, 1956 (in short "the Act") executed the sale-deed in respect of the land admeasuring 1.618 hectare bearing Khasra No. 599 in favour of the respondents in Second Appeal No. 676/1997 on 25-11-1971. Similarly, the lands admeasuring 3.256 hectares bearing khasra Nos. 586/1 and 588/1 were sold by registered sale-deed dated 21-12-1968 to the respondents in Second Appeal No. 672/1997. Similarly, the lands admeasuring 3.256 hectares bearing khasra Nos. 586/1 and 588/1 were sold by registered sale-deed dated 21-12-1968 to the respondents in Second Appeal No. 672/1997. The plaintiff on or about 8-3-1993 filed the Civil Suit No. 641-A/1994 against the respondents in Second Appeal No. 676/1997 and Civil Suit No. 643-A/1994 against the respondents in Second Appeal No. 672/1997 seeking the relief of declaration that he is the owner and in possession of the suit lands and the sale-deeds dated 21-12-1968 and 25-11-1971 executed in favour of the defendants are null and void. 2. The defendants in the aforesaid civil suits filed the written statements in which inter alia, it was denied that the plaintiff is the owner of the lands in question. It was further pleaded that the mother of the plaintiff was owner of the lands, which were sold to the defendants and, therefore, there was no need to obtain permission under Section 8 of the Act. It was also pleaded that the suit seeking the relief of declaration is simpliciter not maintainable without seeking the consequential relief of possession. It was pointed that the father of the plaintiff is an attesting witness to the transactions in question. 3. The Trial Court vide judgment and decree dated 12-5-1995 inter alia held that the plaintiff has not been able to prove the plea that the lands devolved on him by succession. It was further held that the plaintiffs mother sold the lands in question in the year 1971 and till 1980 the plaintiffs father was alive who did not raise any objection and, therefore, inference has to be drawn that the plaintiff's father authorised the mother of the plaintiff to sell the suits lands. It was also held that the plaintiff's mother is the owner of the suit lands. Accordingly, the suit filed by the plaintiff was dismissed. The judgments and decrees passed by the Trial Court were affirmed in appeals by the Lower Appellate Court vide judgments and decrees, dated 26-4-1997. 4. Learned Senior Counsel for the appellants submitted that since the defendants are purchasers from the plaintiff, they were estopped from taking a plea that the plaintiff is not the owner of the suit lands. It was further submitted that the sale-deeds in question were executed in violation of provision of Section 8 of the Act, therefore, the same are ab initio void. It was further submitted that the sale-deeds in question were executed in violation of provision of Section 8 of the Act, therefore, the same are ab initio void. Learned Senior Counsel for the appellant submitted that application for amendment filed by the plaintiff deserves to be allowed in the facts of the case. It was also submitted that due to passage of time on account of pendency of the suit, the defendants do not acquire any title by adverse possession. In support of his submissions, learned Senior Counsel has placed reliance on the decisions in Chajja Singh v. Pritam Singh, AIR 1950 Pepsu 59 (Full Bench), Madhegowda v. Ankedowda and others, AIR 2002 SC 215 : 1971 MPLJ SN 29 : 1974 MPLJ Note 86. 5. On the other hand, learned Counsel for the respondents submitted that since the plaintiff had filed the suits for declaration of title therefore, the Courts below have rightly examined the title of the plaintiff. It was further submitted that the plaintiff had filed the suits merely on the basis of entries made in the revenue records without any document of title and, therefore, the Courts below have rightly dismissed the suits filed by the plaintiff seeking the relief of declaration of title. It was also urged that the revenue entries do not create any title. It was urged that the mother of the plaintiff had sold the suit lands for the need of the plaintiff and the father of the plaintiff was attesting witness to sale deeds. It is also submitted that application for amendment is highly belated and is barred by limitation, therefore, the same deserves to be rejected. In support of his submissions, learned Counsel for the respondents has placed reliance on the decisions in Shantibai and others v. Bhoolibai and others, 2007 (2) MPLJ 121, Suman Verma v. Union of India and others, (2004) 12 SCC 58 , Balwant Singh and another v. Daulat Singh and others, AIR 1997 SC 2719 , State of Himachal Pradesh v. Keshav Ram and others, AIR 1997 SC 2181 , Jattu Ram Hakkam Singh and others, AIR 1994 SC 1653 : (2012)8 SCC 148 : 2012 (1) MPLJ 114 : (2010) 14 SCC 596 and J. Samuel and others v. Gattu Mahesh and others, (2012) 2 SCC 300 . 6. 6. I have considered the respective submissions made by learned Counsel for the parties and have perused the record. In 'Law of Evidence' by Woodroffe and Amir Ali, 19th Edition the following passages occur at pages 4419 and 4421 respectively:-- The basic principle of estoppel is that a person, who by some statement or representation of fact, causes another to act to his detriment in reliance on the truth of it, is not allowed to deny it later, even though it is wrong. Here justice prevails over truth. Estoppel is often described as a rule of evidence but more correctly, it is a principle of law. Estoppel can be described as a rule creating or defeating right. [Canada and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd., (1947) AC 46, 56, K. Ram Mohan Rao v. Endowments Commr., Bangalore, AIR 1989 Kant 192 and H.R. Basavaraj v. Canara Bank, (2010) 12 SCC 458 ]. *** *** *** In dealing with this and the followings sections, it is to be remembered, first, that they are not exhaustive of the law of estoppel, since all rules of estoppel are not also rules of evidence, as estoppel may have the effect of creating substantive rights as against the person estopped; secondly, that neither this section nor the following section, enacts law in India anything different from the Law of England on the subject of estoppel. Cases of estoppel may, therefore, arise which are not within the purview of these sections at all, and those which, though they are within such purview, will (in the absence of an authoritative ruling of the Courts of this country) be determinable upon the principles, which regulate the English Courts, and which are to be found embodied in English decisions. 7. In the instant case, from perusal of Exh. D-1 filed in Civil Suit No. 643-A/1994 out of which Second Appeal No. 672/1997 arises, it appears that the sale-deed, dated 21-12-1968 was executed on behalf of the plaintiff who was minor by his mother acting as his guardian. From perusal of Exh. P-4 filed along with Civil Suit No. 641-A/1994 out of which Second Appeal No. 676/1997 arises, it is evident that the aforesaid document is Chakbandi Patta, wherein the name of grandfather of the plaintiff has been described as owner of the lands bearing khasra Nos. 599, 1609 and 1769. From perusal of Exh. P-4 filed along with Civil Suit No. 641-A/1994 out of which Second Appeal No. 676/1997 arises, it is evident that the aforesaid document is Chakbandi Patta, wherein the name of grandfather of the plaintiff has been described as owner of the lands bearing khasra Nos. 599, 1609 and 1769. The plaintiffs name has been described as minor through his guardian, namely, grandfather, namely, Narayan Singh. It is also not in dispute that the defendants purchased the suit lands during minority of the plaintiff and the sale-deeds in question have been executed by the mother of the plaintiff. In the facts of the case, since the defendants had purchased the suit lands from the mother of the plaintiff who derived right, title and interest from the plaintiff therefore, the defendants are bound by the act and representation of the guardian of the plaintiff and they are estopped from contending that the plaintiff has no right, title and interest in respect of the suit lands. In Chajja Singh (supra), the Full Bench has held that such case may not strictly fall within the scope of Section 115 of the Indian Evidence Act, 1872, but neither that section nor the sections that immediately follow it are exhaustive of the rule of estoppel. Principle of estoppel is based on equity and good conscience and the object is to prevent fraud and secure justice between parties by promotion of honesty and good faith and by preventing them from approbating and reprobating at the same time. In view of the aforesaid analysis, the first substantial question of law framed by a Bench of this Court in both the appeals are answered in the affirmative. 8. From perusal of Exh. P-4 filed along with Civil Suit No. 641-A/1995 out of which Second Appeal No. 676/1997, it is evident that the plaintiffs name has been recorded as owner in respect of the lands bearing khasra Nos. 599, 1609 and 1769. For this reason also, there is material on record to show that the plaintiff is the owner of the lands in question. Since the defendants were estopped from questioning the title of the plaintiff. 599, 1609 and 1769. For this reason also, there is material on record to show that the plaintiff is the owner of the lands in question. Since the defendants were estopped from questioning the title of the plaintiff. Therefore, it is not necessary for Courts below to examine the plaintiffs title and the claim of the plaintiff ought to have been examined in proper perspective, namely, whether the sale-deeds 25-11-1971 and 21-12-1968 executed in favour of the defendants were ab initio void on account of non-compliance of the Act. Accordingly, the second substantial question of law framed in both the appeals is also answered in the affirmative and in favour of the appellant. 9. Now, I may advert to the additional substantial question of law framed by this Court. It is well-settled in law that application for amendment cannot be filed to fill up the lacunae. [State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ]. In South Konkan Distilleries and another v. Prabhakar Gajanan Naik and others, (2008) 14 SCC 632 , it has been held that if the claim in the application for amendment is barred by limitation, such an application has to be rejected. In the instant case, the plaintiff filed the suit seeking the relief of declaration that he is the owner and in possession of the suit lands and sale-deeds executed in favour of the defendants are null and void on 8-3-1983. In the written statement, which was filed on 4-8-1986, in Paragraph 5 the defendants took a specific objection with regard to maintainability of the suit on the ground that relief of possession has not been sought. The Trial Court vide judgment and decree dated 12-5-1995 recorded specific finding on issue Nos. 6 and 7 and held that the plaintiff is not in possession of the suit lands and, therefore, the suit filed by the plaintiff is not maintainable. The aforesaid finding was affirmed in appeal by the Lower Appellate Court vide judgment and decree dated 26-4-1997. The second appeal was filed in the year 1997. The application for amendment has been filed on 18-8-2011, i.e., after a period of fourteen years after institution of the second appeal. Thus, the prayer for amendment has been made nearly after a period of twenty-eight years from the date of institution of the suit. The second appeal was filed in the year 1997. The application for amendment has been filed on 18-8-2011, i.e., after a period of fourteen years after institution of the second appeal. Thus, the prayer for amendment has been made nearly after a period of twenty-eight years from the date of institution of the suit. The amendment is sought with the view to fill up the lacunae which is impermissible in law. Besides that the relief of possession claimed in the suit is barred by limitation. Therefore, the application filed by the appellant deserves to be rejected. Thus, the suit filed by the plaintiff is hit by proviso to Section 34 of the Specific Relief Act, 1963. Accordingly, the additional substantial question of law framed by this Court is answered against the appellant. In view of the preceding analysis, I do not find any merit in the appeals. The same fail and are hereby dismissed with costs.