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2014 DIGILAW 1501 (AP)

Chandan Singh v. Gurala Ramulu

2014-12-10

S.RAVI KUMAR

body2014
Order S. Ravi Kumar, J. 1. This revision is preferred against order dated 18-08-2008 passed in I.A. No. 360/2008 in O.S. No. 38/2006 on the file of Senior Civil Judge, Medak. 2. Brief facts leading to this revision are as follows:- Revision petitioner herein filed O.S. No. 38/2006 for declaration of title and permanent injunction and in that suit, he filed I.A. No. 360/2008 to amend the plaint by adding a alternative relief that he is entitled for declaration of title and recovery of possession. When the defendant resisted the amendment petition on the ground that the proposed amendment would change the nature of the suit and also cause of action, the trial Court dismissed the application and aggrieved by the same, present revision is preferred. 3. Heard both sides. 4. Advocate for revision petitioner submitted that the Court below committed material irregularity by not exercising the powers vested on it. He submitted that amendment of pleadings can be made at any stage before commencement of trial and in special circumstances, it can be sought after commencement of trial and when the plaintiff claimed for the alternative relief of recovery of possession, the trial Court ought to have considered the same, as no prejudice would be caused to the defendants on account of the proposed amendment. He further submitted that alternative relief of possession is permissible and to support of his argument, he relied on a decision of this Court in C. Laxmi Devi v. S. Abdul Rehiman, 2006 (1) ALT 4 besides decision of Supreme Court in Surednder Kumar Sharma vs. Makhan Singh, 2009 (12) SCALE, decision of Rajasthan High Court in Mangi Lal v. State of Rajasthan, 2003 AIHC 2926 and decision of Punjab & Haryana High Court in Sardar Singh v. Smt. Gulvant Kaur, AIR 1991 NOC 90 (PUNJ. AND HAR.). 5. On the other hand, Advocate for respondents submitted that when the plaintiff filed the suit with specific plea i.e., he is in possession and enjoyment of the plaint schedule property as on the date of suit, the proposed amendment would contradict the said plea and being a plaintiff, he cannot take contradicting pleas and the trial Court rightly dismissed the amendment petition. He further submitted that the proposed amendment would completely change the nature of the suit and also original cause of action and as per settled law, such amendments cannot be permitted and the trial Court rightly refused the relief of amendment and that there are no grounds to interfere with the findings of the trial Court. 6. Now the point that would arise for my consideration in this revision is whether the plaintiff can be permitted to plead the alternative relief of possession in a suit for declaration and injunction? 7. Point:- Admittedly, suit is filed for declaration of title and perpetual injunction. According to plaint averments, the suit schedule property, which is an agricultural land in an extent of Acs. 14-11 guntas in Sy. Nos. 570, 571 & 572 of Ootla Village, Jinnaram Mandal, Medak District originally belonged to one Shaik Ali S/o. Shaik Ahmed, who gifted them orally on 12-01-1956 in favour of his nephew Sri Shaik Mahmood and thereafter, he died issueless. According to plaint, the said property was purchased from Shaik Mahmood through an agreement of sale dated 18-09-1976 and obtained possession and subsequently, on 08-02-2006, a registered sale deed was executed in favour of plaintiff and that he is in possession and enjoyment of the suit property ever since the date of agreement i.e., 18-09-1976. According to plaint averments, the defendants along with some other persons went to suit property on 20-05-2006 and obstructed men working in the schedule property and demanded plaintiff to pay some money and that made him to file the suit. So, it is the specific case in the plaint that plaintiff is in possession and enjoyment of the suit schedule property uninterruptedly from 1976 and interference was caused by defendants on 20-05-2006. Now the alternative relief claimed by way of amendment is if for any reason, the Court comes to conclusion on trial that the plaintiff was not in possession as on the date of the suit, he may be granted relief of possession. This alternative plea completely changes the original pleadings of the plaintiff that he has been in continuous possession and enjoyment from 1976 till the date of filing of the suit. This alternative plea completely changes the original pleadings of the plaintiff that he has been in continuous possession and enjoyment from 1976 till the date of filing of the suit. If the plaintiff was dispossessed during the pendency of the suit or after filing of the suit, then there may be justification for claiming relief of possession by seeking necessary amendment to the plaint, but here, it is a case where plaintiff claims possession over the suit schedule property from 1976 onwards, without any interference and contends that there was an interference only on 20-05-2006. 8. In Koka Venkateswarulu v. Ankala Kanakamma, 2001 (5) ALT 43 , a suit was filed for permanent injunction contending that plaintiff therein was in possession and enjoyment of the property, but the defendant therein disputed the same and contended that though plaintiff therein was owner, she was not in possession of the property and after trial, suit of plaintiff was dismissed and at the appellate stage, the plaintiff therein was filed a petition claming the alternative relief of possession and that application was allowed and in the revision, this Court confirmed the said order. In that case, as the defendant therein has admitted the title of plaintiff and only disputed the possession, considering the same, the amendment for alternative relief of possession was allowed to avoid multiplicity of proceedings, but here in our case, the very suit itself was filed for declaration of title and injunction contending that plaintiff is in continuous possession and enjoyment of the property from 1976. So as rightly pointed out by Advocate for respondents that the above referred decision has no way applicable to the case on hand, because here by the proposed amendment, the very nature of the suit will be changed and even the cause of action, which is claimed by the plaintiff as 20-05-2006 would also be changed and as per the settled law, when there will be a change of nature of suit or nature of cause of action on account of proposed amendments, such amendments cannot be permitted. 9. In Surednder Kumar Sharma's Case (Supra), the Hon'ble Supreme Court permitted amendment on the ground that there will not be any change of nature of the suit on account of proposed amendment in that case. 9. In Surednder Kumar Sharma's Case (Supra), the Hon'ble Supreme Court permitted amendment on the ground that there will not be any change of nature of the suit on account of proposed amendment in that case. In that decision, Hon'ble Supreme Court reiterated that amendment cannot be permitted, if the nature and character of the suit would change on account of proposed amendment. In that decision, the principle laid down by the Hon'ble Supreme Court is that genuine amendments cannot be refused on the ground of belated approach, but here as the nature of the suit and the original cause of action both are going to be changed on account of proposed amendment, decisions relied on by revision petitioner would no way help him. The other two decisions are also not helpful to the plaintiff/revision petitioner, because the proposed amendment would completely change the original cause of action on the basis of which, suit is filed. 10. To claim relief of possession, there is prescribed time limit and possession has to be claimed within that period of limitation, therefore, it is incumbent on the plaintiff, to necessarily plead as to when he lost the possession to examine whether the claim for recovery of possession is within the period of limitation or not. In this case, when the plaintiff contend that he is in possession and enjoyment of the property since 1976 and unless, it is pleaded in the plaint even for alternative relief, as to when he lost the possession, it is not possible to examine whether such relief is within time or not. It is well settled law that any relief, which is beyond the period of limitation cannot be allowed to be pleaded or to be claimed by way of amendment. 11. As rightly pointed out by Advocate for respondents the plaintiff cannot be permitted to take inconsistent pleas and the proposed amendment would completely contradicts the plea of the plaintiff that he has been in continuous possession and enjoyment of the suit property from the date of agreement i.e., 18-09-1976. So on a scrutiny of the material, I am of the view that the trial Court rightly refused relief of amendment and I do not find any illegality committed by the trial Court in exercising the powers under Order VI Rule 17 C.P.C. 12. So on a scrutiny of the material, I am of the view that the trial Court rightly refused relief of amendment and I do not find any illegality committed by the trial Court in exercising the powers under Order VI Rule 17 C.P.C. 12. For the reasons stated above, it is held that revision is devoid of merits and the same is liable to be dismissed. 13. Accordingly revision is dismissed as devoid of merits, but in the circumstances without costs. 14. As a sequel, miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand dismissed.