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2014 DIGILAW 719 (PNJ)

Rulia Singh v. Harnam Singh

2014-04-22

RAJIV NARAIN RAINA

body2014
JUDGMENT Mr. Rajiv Narain Raina, J.:- This petition is directed against the order dated January 17, 2014 passed by the Additional Civil Judge (Senior Division), Guru Har Sahai declining the application of the petitioner for amendment of pleadings invoking Order 6 Rule 17, CPC. The application was filed on October 7, 2013. The issues were framed long ago on January 19, 2007. The suit was filed by Rulia Singh and Smt. Dhanno. Isher Singh was the grandfather of plaintiff No.1. Plaintiff No.2 is the daughter of Isher Singh. There are 18 defendants in the original suit in which the plaintiff claims possession of land measuring 39 K and 8 M being one third share each of plaintiff Nos.1 and 2 thereby totalling 1/3rd share out of total land measuring 118 K 7 M comprised in Khewat, Khatouni and Killa numbers mentioned in the head note to the plaint falling in the revenue estate of village Guru Har Sahai, Tehsil and District Ferozepur. The claim is based on title reflected in the Jamabandi for the year 1998-99. 2. The original suit was for possession simplicitor based on inheritance by succession opening on the death of Isher Singh. Declaration was not prayed for in the suit. The present application was filed in October 2013 proposing to amend the plaint to include in the prayer clause an amendment to the effect that the plaint be read as a suit for declaration of 1/6th share each by way of inheritance of Isher Singh and for possession of the suit property. Apart from addition in the prayer clause, a substantial change was sought in para.4 of the plaint in the 10th line by introducing an altogether new matter with respect to a testamentary Will of Isher Singh and that it was surrounded by suspicious circumstances not proved beyond any reasonable doubt. 3. The reason for such proposed amendment is set out in para.2 of the application. It is averred that during recording of the evidence of the plaintiffs, it was advised by their counsel that due to inadvertence, misunderstanding and oversight, the relief of ownership by way of inheritance through Isher Singh could not be claimed and a mere suit for possession had been filed which was ill conceived. It is averred that during recording of the evidence of the plaintiffs, it was advised by their counsel that due to inadvertence, misunderstanding and oversight, the relief of ownership by way of inheritance through Isher Singh could not be claimed and a mere suit for possession had been filed which was ill conceived. The amendment was necessary, according to the plaintiffs, to enable them to enjoy the fruits of a decree likely to be passed in their favour in the present suit as they were advised so and were thus sanguine that such a decree deserved to be passed in their favour based on the new ground. 4. In the body of the application, there is absence of any averment with respect to the Will or from where this fact came to their knowledge. The plea was sought to be introduced in pleadings at a belated stage. There is not even an iota of pleading that despite due diligence the factum of existence of the testament could not be known or that the Will was not previously known to the plaintiff and therefore the amendment sought is sustainable. The original owner of the property indisputably was Isher Singh with a land holding of 118 K 7 M situated in Village Shamali, Tehsil Jalalabad, District Ferozepur. Isher Singh passed away in Guru Har Sahai on November 4, 1971 leaving behind three sons and an equal number of daughters. It is averred in the suit that the defendants in connivance with Revenue Officers got mutation No.4411 sanctioned in the defendants favour in equal shares on the basis of the Will dated March 26, 1971. It is not the case of the plaintiffs that they did not know of the Will and the mutation that followed and confined their suit as one for possession of property mistakenly. It is not disputable that no period of limitation is prescribed for filing a suit for possession of property or a share therein on the basis of inheritance. But if there is a Will of a testator departing from the order of natural succession, and the Will is not challenged for want of right enuring in the testator to dispose property but due to suspicious circumstances in its making, then the cause of action accrues when the right to sue accrues. But if there is a Will of a testator departing from the order of natural succession, and the Will is not challenged for want of right enuring in the testator to dispose property but due to suspicious circumstances in its making, then the cause of action accrues when the right to sue accrues. The plaintiff does not help the court in his application with the date of knowledge of the Will executed in 1971 when the defendants interest became adverse to him so as to locate the date whenabout the cause of action occured and the right to sue accrued. The plaintiff is not a stranger being a member of the family. Article 65 of the Indian Limitation Act, 1963 (ILA) prescribes limitation for a suit for possession of immovable property or any interest therein based on title is twelve years from when the possession of the defendant becomes adverse to the plaintiff. A suit by a person excluded from a joint-family property to enforce a right to share therein, the period of limitation fixed is twelve years by prescription in article 110 ILA when the exclusion becomes known to the plaintiff. 5. The defendants contested the application and objected that the proposed amendment would change the very nature of the suit and the relief presently claimed is time barred having been brought on October 7, 2013 for a Will executed in 1971, the suit being filed in 2006 or thereabout. By the proposed amendment, the plaintiff wants to challenge the Will as one surrounded by suspicious circumstances and not proved beyond any reasonable doubt. The trial Court has upheld the objections of the defendants and declined the application. 6. The learned trial judge has found from the plaint that relationship between the contesting parties stands admitted. By the proposed amendment the very nature of the suit would be altered as well as the cause of action. Such amendments can be allowed so long as they do not cause prejudice to the other party. After the amendment in the Code w.e.f. July 1, 2002, which is prior to the institution of the suit, no applications for amendment can be allowed as of right after the trial has begun. Such amendments can be allowed so long as they do not cause prejudice to the other party. After the amendment in the Code w.e.f. July 1, 2002, which is prior to the institution of the suit, no applications for amendment can be allowed as of right after the trial has begun. The restriction imposed by the amendment is open to exception when such amendment can be allowed if the Court comes to the conclusion that inspite of due diligence, the party could not have raised the issue before commencement of trial or thereafter if ends of justice demand, then to do so with some liberality. 7. The learned trial Judge has found absence of any averment in the application explaining as to why the plaintiff did not file it at the commencement of the trial or when the Will came to their knowledge. The delay pendente lite as well has been factored into the decision to decline the application. 8. Reliance has been placed by the learned counsel for the petitioner on the dicta of the Supreme Court laid down in Abdul Rehman and another vs. Mohd. Ruldu and others, [2012(6) Law Herald (SC) 4726 : 2012(4) Law Herald (P&H) 3486 (SC)] : 2012 (4) RCR (Civil) 481 and Sampath Kumar vs. Ayyakannu and another, 2002 (7) SCC 559 . In Sampath Kumar the amendment was sought before the commencement of the trial. The final Court held that If the facts stated by the plaintiff are not correct the defendant is free to seek amendment after filing written statement to show that the suit itself is liable to be dismissed then such pretrial amendments should be liberally granted and mere delay alone cannot be a ground for refusing the prayer for amendment. The stage of suit in the present case is in highly advanced stage. The judgement can be of little help and is distinguishable on facts. 9. In the result, I agree with the reasoning of the learned trial Judge that the proposed amendment if allowed would change both the nature of the suit and the cause of action and introduce an entirely new case questioning the Will. In the revision petition, it has not been stated that the plaintiff did not know of the existence of the Will before instituting the suit. In the revision petition, it has not been stated that the plaintiff did not know of the existence of the Will before instituting the suit. Even the mutation sanctioned on the basis of the Will by the revenue authorities as far back as on March 26, 1971 is mentioned but not challenged inasmuch as there is no prayer for declaring the sanction null and void even though mutations do not create right or title in immovable property and would fall to the ground if the Will falls. The mutation still remains a valuable revenue entry wherein factum of testamentary Will would be duly entered for the public at large to access and deal with in relation to the property, which includes the plaintiff. He cannot be readily seen to feign ignorance for 35 years before the suit of the existence of the Will and 7 years thereafter and that too, to question its surrounding circumstances as being suspicious. 10. If the Will is to be introduced in the pleadings at this belated stage and its genuineness questioned on ground of suspicious circumstances the inevitable result would be a fresh trial on a new plea where obstacles of bar of limitation etc. would have to be clearly pleaded and legal tests passed and legal bars crossed with respect to the maintainability of such a suit, if it were brought. When knowledge of sanction of mutation in favour of the defendants is admitted then a strong presumption of knowledge of the Will arises and can well be drawn inferentially by court. It is neither pleaded nor argued that factum of Will is not recorded in the mutation. This should by normal standards foreclose the case of the petitioner sought to be built on the Will, suspicious circumstances notwithstanding. 11. However, introduction of such a plea to my mind is not permissible at the present stage of the proceedings. Such a challenge should have been laid in the first instance in the plaint or before the issues were framed and this is especially so when knowledge of existence of Will is not disclaimed anterior to suit. When a party to a suit intends to incorporate a new set of ideas by means of an amendment and that too after long lapse of time intending to defeat the opposite party’s rights accruing meanwhile then refusal may well follow and be justified. 12. When a party to a suit intends to incorporate a new set of ideas by means of an amendment and that too after long lapse of time intending to defeat the opposite party’s rights accruing meanwhile then refusal may well follow and be justified. 12. For the above reasons, I see no justifiable ground to disturb the order impugned. The same is sustained as being without any error in appreciation of facts, nor is there presence of any legal infirmity found to vitiate the order impugned. There is also no apparent failure of the test of manifest justice discernible in the impugned order nor any odour of prejudice is found resulting to the parties in its passing. 13. In the result, the revision petition fails and is ordered to be dismissed in limine. ---------0.B.S.0------------