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2017 DIGILAW 1224 (HP)

Ram Krishan v. Tek Singh

2017-11-01

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. —The instant petition is directed against the orders pronounced by the learned Civil Judge (Senior Division), Kasauli, upon an application preferred before him under the provisions of Order 8, Rule 6 (c) CPC, wherein the plaintiff sought an order, for excluding the counter claim instituted by the defendant concerned vis-a-vis the plaintiffs'' amended plaint. Co-plaintiffs had initially filed a suit wherein they claimed a declaratory decree for setting aside the deed of conveyance executed with respect to suit Khasra Nos., execution whereof occurred in-terse defendant No. 1 vis-a-vis defendant No. 2. The ground for setting aside the registered deed of conveyance executed in-terse defendant No. 1 and defendant No. 2, was rested upon the factum of co-defendant No. 1 in executing it with defendant No. 2, his including therein certain properties falling beyond his recorded shares. However, in the initially instituted plaint, no precise averment was cast with respect to the sale deed begetting the aforesaid infection. Subsequently, an application was filed under the provisions of Order 6, Rule 17 CPC on 3.6.2015, wherein the co-plaintiffs sought leave of the Court, for incorporating in the plaint certain averments, averments whereof are extracted hereinafter: " 3(a) That the present plaintiff during the pendency of the suit transpired that the land was owned and possessed by Shri Shiv Dayal, Shri Charan Singh, Shri Balak Ram son of Shri Hem Ram and Smt. Gulabi Devi wife of Sh. Narayan Singh son of Shri Hem Ram in equal share as there are four share holders in the suit property and all were shown as tenants over the suit property and all were shown as tenants over the same. This entry remains in force till 1977 to 1978. In the year 1982-83 name of one co-owner Smt. Gulab Devi wife of Shri Narayan Singh have been struck off without any order or without any proceedings and her name has been deleted from the array of co-ownership. Thereafter, one of the co-owners Shri Charan Singh died issue-less and executed a Will in favour of plaintiff and defendant No. 2 in equal shares and accordingly, the present plaintiff and defendant No. 2 becomes co-owner in possession of the land qua the share of Charan Singh vide mutation No. 136 dated 12.6.1981. Thereafter, one of the co-owners Shri Charan Singh died issue-less and executed a Will in favour of plaintiff and defendant No. 2 in equal shares and accordingly, the present plaintiff and defendant No. 2 becomes co-owner in possession of the land qua the share of Charan Singh vide mutation No. 136 dated 12.6.1981. Thereafter, all the co-sharers filed suit for declaration against the state of H.P. declaring them to be owner in possession of the property by the afflux of time and by operation of law, they become owner in possession of the property and the said suit was filed in the year 1984 and the same was decreed vide its judgment and decree dated 18.11.1985 and declared all the co-owners owner in possession of the said property. The state of H.P. filed appeal with the appellate Court i.e. learned Sessions Judge, Solan and the appeal of the State was dismissed vide order dated 16.5.1987. Thereafter, as per the judgment and decree dated 18.11.1985, the revenue entries were changed in favour of all the co-owners on the basis of mutation No. 161 dated 27.12,1990, whereas the name of Smt. Gulabi Devi is duly reflected in the mutation, but the movement the mutation No. 161 was incorporated in the subsequent jamabandi the name of Smt. Gulabi Devi was not mentioned in the subsequent revenue entry and further the jamabandi prepared on the basis of said jamabandi are also now showing the name of Smt. Gulabi Devi. The suit land was owned and possessed by Shri Shiv Dayal, Charan Singh, Balak Ram son of Shri Hem Ramand Smt. Gulabi Devi widow of Shri Narayan Singh, son of Shri Hem Ram in equal shares. Thereafter, one of the co-owner Shri Charan Singh expired and inherited by Shri Ram Krishan, Mehar Singh, Hari Mohan and Khem Ram in equal shares. While preparing the jamabandies for the year 1982 to 83 the name of Smt. Gulabi Devi was not incorporated in subsequent jamabandies. Smt. Gulabi Devi is still alive, but her share has not been shown in the revenue record. Since the land was possessed by all four co-owners/co-sharers in equal shares and the name of one of co-owner Smt. Gulabi Devi has been deleted wrongly and illegally which was mistake on the part of the revenue officials. Smt. Gulabi Devi is still alive, but her share has not been shown in the revenue record. Since the land was possessed by all four co-owners/co-sharers in equal shares and the name of one of co-owner Smt. Gulabi Devi has been deleted wrongly and illegally which was mistake on the part of the revenue officials. Smt. Gulab Devi never relinquished, gifted her share in favour of the other co-owners nor there was any occasion to do so. Therefore, the jamabandi not showing her name in the subsequent revenue record is wrong, illegal, null and void and subsequently showing the plaintiffs along with defendant No. 2 as co-owners to the extent of the equal shares is also wrong, illegal null and void. Thereafter one of the co owners Shri Shiv Dayal also died and his share was succeeded by his wife Smt. Parvati Devi vide mutation No. 137, dated 12.6.1981, who also died later on and executed registered Will in favour of plaintiff No. 1. Shri Ram Krishan vide mutation No. 265, dated 2.12.2009. After that Shri Balak Ram also died and he has been inherited by plaintiff and defendant No. 2 in equal shares vide mutation No. 155, dated 20.2.1989. Thus, the revenue entry shown the plaintiff and defendant No. 2 as co-owner in possession of equal share is wrong, illegal, null and void, as there is no occasion for the plaintiffs and defendant No. 2 to have the equal shares in the suit land and the entries showing the plaintiff and defendant No. 2 as co-owner in possession in equal share is wrong, illegal null and void. The revenue entries also not showing the name of one of co-owner Smt. Gulabi Devi is also wrong, illegal null and void and subsequently, the sale deed executed by the defendant No. 2 in favour of defendant No. 1 beyond his share is also wrong, illegal null and void." 2. The revenue entries also not showing the name of one of co-owner Smt. Gulabi Devi is also wrong, illegal null and void and subsequently, the sale deed executed by the defendant No. 2 in favour of defendant No. 1 beyond his share is also wrong, illegal null and void." 2. A perusal of the herein-above extracted, relevant portion of the application moved by the co-plaintiffs, before, the learned Civil Judge (Senior Division),Kasauli, application whereof is cast under the provisions of Order 6, Rule 17 CPC, reveals of the co-plaintiffs, hence with precision, seeking to assail the relevant deed of conveyance executed interse defendant No. 1 with defendant No. 2, specifically on score of the name of one Gulabi Devi, who along with co plaintiffs'' purportedly held a recorded share in the suit property, being unlawfully deleted from the jamabandi(es) appertaining to the suit land, (i) thereupon obviously upon a decree declaring the revenue entries to be hence void being rendered, (ii) hence compatible alteration in the shares of the co-plaintiffs, also of defendant No. 1, in the jointly recorded suit property, hence occurring, (iii) whereupon the alienation by defendant No. 2 vis-a-vis defendant No. 1, his share in the suit property also suffering a taint, arising from his purportedly beyond his lawful share therein, making alienations vis-a-vis defendant No. 1. The learned trial Court accorded the apposite leave to the plaintiffs. Also, as stated at the Bar by the learned counsel for the plaintiff, an order for adding in the array of co-defendants, the name of Gulabi Devi was also rendered. 3. The co-defendant, though, in the initially instituted written statement to the un-amended plaint, had incorporated therein a plea of his acquiring title to the suit property, on anvil of his being an ostensible owner thereof. 3. The co-defendant, though, in the initially instituted written statement to the un-amended plaint, had incorporated therein a plea of his acquiring title to the suit property, on anvil of his being an ostensible owner thereof. However, the co-defendant No. 1, after the co-plaintiffs'', with the leave of the Court, had, instituted an amended plaint, proceeded to institute a counter claim, wherein an affirmative declaratory decree, was, claimed with respect to a rendition being made by the learned trial Court, of the relevant deed of conveyance executed interse him with defendant No. 2 (alienor), acquiring an aura of validation, (i) arising, from the factum of it falling within the statutory domain of section 41 of the Transfer of Property Act, where-within a proven ostensible owner of the suit property, is empowered to validate the relevant deed of conveyance executed qua him by the alienor. 4. Upon the aforesaid counter claim being instituted within the provisions of Order 8, Rule 6(A) CPC, an application was filed by the co-plaintiffs before the learned trial Court, application whereof was cast under the provisions of Order 8, Rule 6(C) CPC, wherein a relief was sought for excluding the aforesaid counter claim. The learned trial Court, upon analyzing the relevant provisions borne in Order 8, Rule 6(A) CPC and the ones borne in Order 8, Rule 9 CPC, provisions whereof stand extracted hereinafter, proceeded to, Order 8, Rule 6 CPC Particulars of set-off to be given in the written statement (1) Where in a suit for the recovery of money the defendant claims to set off against the plaintiff''s demand any ascertained sum of money, legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff''s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. (2) (2) Effect of set-off-The written statement shall have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. Order VIII Rule 6(A) CPC:- "Counter claim by the defendant: (1) A defendant in a suit may, in addition to his right of pleading a set off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." Order 8, Rule 9 CPC "Subsequent pleadings:- No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same." Hence conclude that for avoiding multiplicity of proceedings and for excluding inconvenience to the contesting parties, the counter claim instituted by the co-defendants, warranting its being taken on record. For testing the legality of the pronouncement made by the learned trial Court, it is imperative to bear in mind, the afore-extracted provisions borne in the CPC, (i) upon cumulative conjoint reading(s) especially of the provisions borne in Order 8, Rule 6 and 6 (A) CPC, wherein a statutory right is reserved in the defendant, to before or after the filing of the suit, yet at the time contemporaneous to his instituting a written statement to the plaint, AND not thereafter unless permitted by the Court, hence espouse a counter claim. However, the aforesaid mandate cast in the provisions of Order 8, Rule 6 (c) CPC, (ii) is subject to an exception thereto cast in the provisions borne in Order 8, Rule 9 CPC, wherein even subsequent to the institution of an apposite written statement by the defendant concerned, the latter is statutorily enabled to, with the leave of the Court, canvass an counter claim to the suit. Also, obviously the defendant concerned, who previously in his written statement, omits, to canvass a counter claim, can through, the mechanism of Order 6, Rule 17 CPC, also make an effort to include a plea of counter claim in his previously instituted written statement to the plaint. 5. However, defendant No. 1, did, in his initially reared written statement to the un-amended plaint, hence evidently canvass a plea of his holding an empowerment, to engender a ground of the relevant deed of conveyance executed in-terse him with defendant No. 2, holding a virtue of validation, given its enjoining the benefit of the statutory protection embodied in section 41 of the Transfer of Property Act. However, despite, his raising the aforesaid plea, in his initially instituted written statement vis-a-vis the unamended plaint, (i) yet defendant No. 1 proceeded to thereafter also upon the plaintiff instituting an amended plaint, hence rear a counter claim, wherein he canvassed, for rendition of a declaratory decree of the relevant deed, of conveyance being foisted with an aura of validation, given its being clothed with statutory protection, by the mandate enshrined in section 41 of the Transfer of Property Act. The learned trial Judge concluded of the aforesaid counter claim, falling within the ambit of Order 8, Rule 9 CPC, however, the aforesaid conclusion is grossly fallacious, for the reasons (a) the co-defendant No. 1 subsequent to the lawful institution of the amended plaint by the plaintiff, for his hence being validly enabled to rear a counter claim, with an espousal for rendition of a declaratory decree, for validating the deed of conveyance executed in-terse him and defendant No. 2, on anvil of it enjoying the statutory protection, enshrined under section 41 of the Transfer of Property Act, a) did not prior thereto seek the statutorily ordained leave of the Court, for, incorporating in the written statement, a plea holding compatibility in respect thereto, (b) rather with the plea aforesaid standing already embodied in his initially instituted written statement, vis-a-vis the un-amended plaint. (c) Thereupon, the pre-emptory mandate of Order 8, Rule 9 CPC was not enjoined to be given short shift, as inappropriately done by the learned trial Court, (d) thereupon the impugned order is vitiated and suffer from a a gross illegality and perversity. 6. Be that as it may, the defendant No. 1 who propagates an affirmative plea of the relevant deed of conveyance holding the virtue of statutory validation, as enshrined in the provisions of section 41 of the Transfer of Property Act, rather was required to set up the aforesaid plea only as a defence. a) Significantly, when upon his canvassing the aforesaid plea in the affirmative, he contravenes the statutorily mandate borne in section 41 of the Transfer of Property Act, upon a reading whereof it emerges of, statutory leverage(s) thereof, being only canvas sable in the pre-instituted written statement of the defendant concerned. (b) Given the imminent factum of the aforesaid defence necessarily awakening upon the defendant concerned, upon, the aggrieved concerned instituting a suit for rendition of a declaratory decree, vis-a vis the relevant deed of conveyance. (b) Given the imminent factum of the aforesaid defence necessarily awakening upon the defendant concerned, upon, the aggrieved concerned instituting a suit for rendition of a declaratory decree, vis-a vis the relevant deed of conveyance. C) Hence upon the defendant in seeking only rendition of a declaratory decree in the affirmative, he would bring to the fore, averments also in respect of his holding knowledge with respect to the entitlement(s) of a litigant, vis-a-vis the suit property concerned, (d) wherefrom the trite rubric whereon the principle of ostensible ownership is founded and is statutorily engrafted in section 41 of the Transfer of Property Act, comprised in his being a bona fide purchaser for consideration without apposite notice and obviously without knowledge, would perse be precluded to beget satiation. 7. Dehors the above, with the defendant No. 1 in the initially instituted written statement to the unamended plaint, rearing a plea of ostensible ownership, his endeavour to reiterate it through his inappropriately availing the mechanism of Order 8, Rule 6(A) CPC read with Rule 9 of the CPC, cannot be, in any manner, come to be approbated by this Court, as it would spell disaster, vis-a-vis the innate nuance of the mandate of section 41 of the Transfer of Property Act, also would spell disaster vis-a-vis the pre-emptory provisions borne in Order 8, Rule 9 CPC, especially when in infraction thereof, his without seeking the leave of the Court, has proceeded to institute a counter claim, with the aforesaid plea being included therein. 8. Consequently, there is merit in the present petition and the same is allowed. The impugned judgment is quashed and set aside. It is clarified that defendant No. 1 shall be permitted by the learned trial Court to institute an amended written statement to the amended plaint, if not on record, also the learned trial Court shall permit the defendant concerned to therein rear the statutory plea of ostensible ownership. All pending application(s), if any, are also disposed of.