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2019 DIGILAW 269 (HP)

Sat Pal v. Baba Dharam Shah

2019-03-15

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. This petition has been filed against impugned common order dated 31.8.2018 (Annexure P-8) passed by learned Senior Civil Judge in civil suit No. 12 of 2014, titled Baba Dharam Dass vs. Sat Pal allowing CMA No. 1478 of 2018 filed under Order 6 Rule 17 CPC by the respondent/plaintiff and dismissing CMA No. 1479 of 2018 filed under Order 7 Rule 11 (A) CPC by the petitioner/defendant. 2. I have heard learned counsel for the parties and have gone through the documents placed on record. At the request of learned counsel for parties, record of CWP No. 3572 of 2014 titled Sat Pal Saini vs. State of H.P. has also been requisitioned, perused and taken into consideration. 3. At the very outset learned counsel for the petitioner submits that he has instructions not to press this petition against dismissal of application filed by the petitioner/defendant under Order 7 Rule 11(A) CPC, but to agitate only against allowing the application filed by respondent/plaintiff under Order 6 Rule 17 CPC. 4. The main dispute between the parties, in brief, is with respect to succession of property of late Baba Pritam Shah Chela Baba Game Shah, who has expired on 15.1.2012. Whereafter, respondent/plaintiff is claiming the right on the property of Dera Baba Pritam Game Moju Shah on the basis of unregistered Will, alleged to have been executed by Baba Pritam Shah on 15.8.2011, whereas petitioner/defendant is asserting his right on the said property of the basis of another unregistered Will, alleged to have been executed by Baba Pritam Shah on 4.5.2010. 5. Vide order dated 27.4.2012 (Annexure R-4), Assistant Collector 1st Grade, Una, after considering the rival contentions of parties and opinion of large number of gathering present on the spot at the time of consideration of succession of property in question, has declined to attest the mutation in favour of either party, but had attested the same as mutation No.993 in favour of Dera Baba Pritam,Game Moju Shah. 6. The aforesaid order dated 27.4.2012 Annexure R4 was assailed by petitioner/defendant before Sub Divisional Collector, Una by filing an appeal No. 26 of 2012. 6. The aforesaid order dated 27.4.2012 Annexure R4 was assailed by petitioner/defendant before Sub Divisional Collector, Una by filing an appeal No. 26 of 2012. Vide order dated 31.7.2013, Sub Divisional Collector had set aside the attestation of mutation No. 993 dated 27.4.2012 and had remanded the case for deciding afresh, by Assistant Collector 2nd Grade after hearing the parties, consequent whereupon the case was listed before Assistant Collector 2nd Grade, Una on 26.10.2013, on which date, an issue with respect to eligibility of petitioner/defendant, being not an agriculturist of Himachal Pradesh, to inherit the property of Bab Pritam Shah was raised whereupon petitioner/defendant had sought time to produce the documents and judgments in support of his claim. However, thereafter, he did not appear before the Assistant Collector on 22.2.2012, 29.3.2014 and 20.4.2014 and lastly on 20.4.2014 one more opportunity was granted to the petitioner/defendant to produce his agricultural certificate on 20.5.2014. 7. In the meanwhile, on 23.4.2014, petitioner/defendant had filed an application before the Tehsildar Una for issuance of agriculturist Himachali Certificate on the ground that his wife Smt. Ram Dulari was owner in possession of the land in village Kotla Kalan, Tehsil and District Una, basing his claim on clarification issued by the Government of H.P. vide letter No. B.F(5)-8/2001 dated 30.4.2002. However, the said application was rejected by Tehsildar on the ground that said clarification had already stood withdrawn by the Government of H.P. at that time and as per clarification in vogue, petitioner/defendant was not found to be eligible for agriculturist certificate. This order was assailed by petitioner/defendant in the High Court by filing CWP No. 3572 of 2014 titled Sat Pal Saini vs. State of H.P. and others. 8. For rejection of application submitted for issuance of agriculturist Himachali Certificate, petitioner/defendant did not appear before the Assistant Collector 2nd Grade on 20.5.2014 and on that date, the Assistant Collector 2nd Grade, after recording the facts that an application filed by the petitioner/defendant for issuance of agriculturist stood rejected by him as Tehsildar vide order dated 23.4.2014 and that petitioner/defendant has assailed the said rejection by filing writ petition in the High Court, had adjourned till passing of further orders by the High Court in the writ petition CWP No. 3572 of 2014. 9. 9. Simultaneously, under direction of the High Court issued vide order dated 29.2.2014, petitioner/defendant had also assailed the rejection order dated 23.4.2014 by filing statutory appeal before Sub Divisional Collector, Una which was dismissed vide order dated 31.1.2015 and after amending the petition, the said order was also assailed in CWP No. 3572 of 2014. 10. Before filing the writ petition, CWP No. 3572 of 2014 on 2.5.2014, respondent/plaintiff had filed civil suit on 21.1.2014. 11. Plaintiff has filed a civil suit on 21.1.2014 for declaring him owner in possession of the property in dispute after declaring the Will dated 4.5.2010 as null and void and Will dated 15.8.2011 as legal and valid, order passed wherein has been assailed in present petition. In the said civil suit earlier also, an application for amendment under Order 6 Rule 17 CPC was filed by the respondent/plaintiff on the basis of civil litigation, which had attained finality vide judgment dated 1.7.2009 passed by this High Court in RSA No. 369 of 2003. The said amendment was allowed by the trial Court on 21.3.2016. 12. Pendency of civil suit, preferred by respondent/plaintiff with respect to property in question on the basis of Will dated 15.8.2011 and fact of contesting the said suit by petitioner/defendant by asserting his claim on the same property on the basis of Will dated 4.5.2010 was not disclosed or raised by petitioner/defendant in CWP No. 3572 of 2014. In the said writ petition only, issue with respect to non-issuance of agriculturist certificate was raised and contested. Ultimately on the basis of clarifications issued by Government of H.P. and also on the basis of order dated 31.8.2016 passed by the District Collector in sequel to order dated 15.7.2016, passed by the High Court in aforesaid writ petition, whereby petitioner/defendant Sat Pal Saini was declared to be covered by definition of agriculturist being husband of an agriculturist's wife, the High Court vide order dated 23.9.2016 had quashed and set aside the order dated 23.4.2014 whereby application of petitioner/defendant for issuance of agriculturist Certificate was rejected with further direction to the respondent/State to attest the mutation within a period of eight weeks from passing of order by treating the petitioner/defendant to be an agriculturist. In addition, State was also directed to make suitable amendment to Section 118 of H.P. Tenancy and Land Reforms Act, 1972 and Rules therein. 13. In addition, State was also directed to make suitable amendment to Section 118 of H.P. Tenancy and Land Reforms Act, 1972 and Rules therein. 13. The said order was assailed by the State in the Apex Court by filing SLP wherein the State had not assailed the portion of order whereby direction to attest the mutation by treating the petitioner as an agriculturist was given, but had assailed only the direction issued for making suitable amendment in Section 118 of H.P. Tenancy and Land Reforms Act and Rules. 14. The Apex Court vide judgment dated 8.2.2017 had set aside the said direction but direction to attest the mutation by treating the petitioner/defendant as an agriculturist remained intact. 15. After passing of direction by the High Court in CWP No. 3572 of 2014, mutation No. 993 has been attested by the revenue authorities on 30.9.2016 in favour of petitioner/defendant. 16. Thereafter, respondent/plaintiff has filed an application under Order 6 Rule 17 CPC on 5.2.2017 seeking certain amendments in plaint for addition of certain averments related to filing of CWP No. 3572 of 2014, direction passed therein and attestation of mutation No. 993 dated 30.9.2016 and for addition of prayer to assail the attestation of the said mutation in favour of petitioner/defendant, on the ground that these subsequent events i.e. passing of order by the High Court and attestation of mutation in pursuant thereto, have come in the notice of respondent/plaintiff only when the defendant/petitioner had tried to interfere in the suit property on the strength of attestation of mutation in his favour. 17. Learned counsel for the petitioner submits that respondent/defendant has no authority to question the judgment passed by the High Court and affirmed by the Supreme Court and mutation No. 993 attested in favour of the petitioner/defendant in pursuant thereto. 18. It is further contended that it is the second application for amendment and plaintiff was having the knowledge of pendency of filing of CWP No. 3572 of 2014 and had filed an application under Order 1 Rule 10 CPC therein for arraying him as party. Therefore, the respondent/plaintiff has not come with clean hands at the time of filing of second application for amendment by stating that it is a subsequent event and has come in the knowledge in February, 2017. Therefore, the respondent/plaintiff has not come with clean hands at the time of filing of second application for amendment by stating that it is a subsequent event and has come in the knowledge in February, 2017. He has submitted that pleadings in paras 10(a), 10(b) and 10(c) amount to questioning the authority of High Court to pass an order in a writ petition which stands affirmed by the Apex Court and allowing such amendment to be added in plaint is amounting to allow the Civil Judge to question the wisdom of the High Court. 19. Learned counsel for the respondent/plaintiff submits that first amendment was with respect to certain amendments based on the finality of litigation after passing of judgment by this High Court in RSA No. 369 of 2003 and at that time no order had been passed by the High Court in CWP No. 3572 of 2014 and further that passing of order by this High Court for attestation of mutation in the said writ petition and attestation of mutation in pursuance thereto was not in the knowledge of respondent/defendant till February, 2017 when petitioner/defendant had tried to interfere in the property as these orders were not passed in his presence. It is also submitted that writ petition was preferred after filing of suit by concealing the facts about pendency of suit filed questioning the validity of Will on the basis of which petitioner/defendant is claiming right on the property and ultimately he has succeeded in getting the mutation attested in his favour by concealing the material facts and thus respondent/plaintiff has every right to assail the said mutation. 20. From the submissions of learned counsel for the parties and on perusal of record of CWP No. 3572 of 2014, it emerges that CWP No. 3572 of 2104 was filed against the order dated 23.4.2014 passed by Tehsildar, Una rejecting an application filed by the petitioner/defendant from issuance of agriculturist certificate and later on, by amending the said CWP No. 3572 of 2014, order dated 31.1.2015 passed by the Sub Divisional Collector dismissing the appeal preferred by the petitioner/defendant was also assailed therein. However, the respondent/plaintiff was not party to the said application or appeal or writ petition. 21. However, the respondent/plaintiff was not party to the said application or appeal or writ petition. 21. Though in present petition, in ground (e), the petitioner/defendant has taken a specific plea that respondent/plaintiff had even filed an application under Order 1 Rule 10 CPC for being impleaded as a party to CWP No. 3572 of 2014 in this High Court, however, as per record of the said writ petition, no such application was ever filed by anybody much less by the respondent/plaintiff. There is nothing on record to substantiate the plea of petitioner/defendant that direction issued by this High Court vide order dated 23.9.2016 in CWP No. 3572 of 2014 and attestation of mutation No. 993 vide order dated 30.9.2016 in sequel to said direction was in the knowledge of respondent/plaintiff prior to filing of application for amendment. 22. In CWP No 3572 of 2014, there is reference of order dated 27.4.2012 passed by the Assistant Collector 2nd Grade rejecting the claim of petitioner set up by him on the basis of Will and also about order dated 31.7.2013 passed by the Sub Divisional Collector in appeal preferred by petitioner/defendant, but this petition was filed only against denial of issuance of agriculturist certificate by rejecting the application of petitioner/defendant by Tehsildar vide order dated 23.4.2014 and against the dismissal of appeal, preferred by the petitioner/defendant, vide order dated 31.1.2015 passed by Sub Divisional Collector and issue of rival claims of various parties with respect to the property in dispute was not the subject matter of this CWP No. 3572 of 2014. It would be more clear from the prayer of petitioner in said writ petition, which reads as under:- "(i) That the impugned orders annexures P-9 dated 23.4.2014 and Annexure P-12 dated 31.1.2015, being unsustainable in the eyes of law, may kindly be quashed and set aside with directions to the respondents to immediately consider and pass orders in attesting the mutation as is entered in Jamabandi for the year 2007-08, annexure P-6 in favour of petitioner, taking the fact that petitioner is an agriculturist." 23. This High Court in aforesaid writ petition No. 3572 of 2014 has adjudicated the issue as to whether petitioner is to be treated as agriculturist or not and on the basis of material before it, particularly in view of the order dated 31.8.2016 passed by the District Collector, Una wherein it is concluded that petitioner comes under the definition of agriculturist being a husband of agriculturist wife, this High Court had passed the following order:- "3. Accordingly, impugned annexure P-9 dated 23.4.2014 is quashed and set aside. Respondents are directed to attest the mutation within a period of eight weeks from today by treating the petitioner to be an agriculturist." 24. In view of issue raised before the High Court in CWP No. 3572 of 2014, there was no occasion for the High Court to adjudicate the rival claims of persons claiming their title upon the suit property and the only issue raised before it, regarding issuance of agriculturist certificate, was adjudicated upon and finalized. The High Court has not directed the concerned authority to ignore the claims of other contesting parties asserting their claims on the suit property at the time of attestation of mutation No. 993 qua the suit property. The only direction was that at the time of attestation of mutation within a period of eight weeks, the petitioner/defendant was to be treated as an agriculturist and therefore, the claim of petitioner/defendant was not to be rejected on the ground that he was not an agriculturist but the rest objections/claims of petitioner/defendant, respondent/plaintiff and other interested persons were to be adjudicated upon by the concerned authority on its own merits in accordance with law. 25. The High Court has not directed the attestation of mutation in particular manner or in favour of particular person. Therefore, attestation of mutation in favour of petitioner/defendant cannot be said to have been attested on the directions issued by the High Court. The direction of the High Court was limited to the extent that petitioner/defendant was to be treated as an agriculturist. Therefore, it was incumbent upon the authority to ensure the presence of all interested persons and consider their rival claims after giving opportunity to each of them in accordance with law. The direction of the High Court was limited to the extent that petitioner/defendant was to be treated as an agriculturist. Therefore, it was incumbent upon the authority to ensure the presence of all interested persons and consider their rival claims after giving opportunity to each of them in accordance with law. Either of them, being aggrieved by attestation of mutation, was and is entitled to assail the same as permissible under law except re-opening of issue regarding the entitlement of petitioner to be treated as an agriculturist. 26. At the time of passing of order 27.4.2012, after considering the rival claims of interested persons, Assistant Collector 2nd Grade had not attested the mutation either in favour of the petitioner/defendant or respondent/plaintiff or anybody else, but in favour of Dera by leaving the fate of 'Wills' to be adjudicated by competent Court of law. The said order was assailed before the Sub Divisional Collector, who, vide order dated 31.7.2013, had set aside the order passed by Assistant Collector 2nd Grade and remanded the case with direction to attest the mutation afresh after hearing/giving the proper opportunity to parties to prove their claims and to pass a reasonable order keeping in view the points discussed in appeal. In this order, the Sub Divisional Collector had discussed the rival claims of parties based on respective Wills, alleged to have been executed by deceased Baba Pritam Shah, in favour of respective party, but he had not returned the findings on merits on this issue, but had remanded the case back, as referred supra. 27. After aforesaid remand order, Assistant Collector 2nd Grade, while considering the claims of interested parties, had passed a detailed order dated 26.10.2013 and had adjourned the attestation on request of petitioner/defendant enabling him to produce the documents and to address arguments to prove him an agriculturist, for establishing his eligibility to inherit suit land. Pending consideration of aforesaid issue, an application of petitioner/defendant and appeal therein were dismissed by the concerned authority and ultimately this High Court vide order dated 23.9.2016 held him an agriculturist. 28. There is no finding of any Court with respect to genuineness of Will(s) produced by the parties. Pending consideration of aforesaid issue, an application of petitioner/defendant and appeal therein were dismissed by the concerned authority and ultimately this High Court vide order dated 23.9.2016 held him an agriculturist. 28. There is no finding of any Court with respect to genuineness of Will(s) produced by the parties. The Sub Divisional Collector in his order dated 31.7.2013 has reproduced the version of parties wherein there is reference of lodging/filing of criminal cases and examination of genuineness of Will by the Forensic Laboratory, but he had not adjudicated the rival claims in this regard and had directed the Assistant Collector 2nd Grade to adjudicate the said issue. 29. In CWP No. 3572 of 2014 also, there is order only to treat the petitioner/defendant as an agriculturist, but there is no direction or order with respect to legality, validity or genuineness of Will(s) in dispute. No doubt, in view of order passed in CWP No. 3572 of 2014 petitioner/defendant is to be considered an agriculturist but he has not been ordered to be entitled for suit land on the basis of Will. The said claim of petitioner is subject matter of present suit. 30. It was incumbent upon the concerned authority to decide and attest the mutation after considering the claims and issues raised by the interested parties on merits as there was no direction by the High Court to ignore such issues or claims in the order/judgment passed in CWP No. 3572 of 2014. Therefore, attestation of mutation No. 993 vide order dated 30.9.2016 does not amount to attestation of it under the order passed by this High Court. The only one issue that petitioner/defendant is an agriculturist has been decided by the High Court and it cannot be re-opened. However, for want of adjudication of other claims and issues raised by the interested parties, the said attestation of mutation No. 993 can always be challenged by the aggrieved party (ies). 31. The first amendment sought by the respondent/plaintiff in civil suit was finally adjudicated and permitted on 21.3.2016. The direction issued by the High Court vide order 23.9.2016 in CWP No. 3572 of 2014, attestation of mutation No. 993 vide order dated 30.9.2016 and interference by the petitioner/defendant in the suit property are subsequent to it. 31. The first amendment sought by the respondent/plaintiff in civil suit was finally adjudicated and permitted on 21.3.2016. The direction issued by the High Court vide order 23.9.2016 in CWP No. 3572 of 2014, attestation of mutation No. 993 vide order dated 30.9.2016 and interference by the petitioner/defendant in the suit property are subsequent to it. Therefore, there was no occasion for the respondent/plaintiff to pray for amendment to assail the mutation No. 993 at the time of filing of first application for amendment. 32. The Apex Court in Chakreshwari Construction Private Ltd. vs. Manohar Lal, (2017) 5 SCC 212 has summarized the some of important factors to be kept in mind at the time of dealing with application under Order 6 Rule 17 CPC, which reads as under:- "13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy and Sons, (2009) 10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or malafide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 33. There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 33. The Apex Court in State of Bihar vs. Modern Ten House and another, (2017) 8 SCC 567 has allowed the amendment of written statement after completion of evidence and after considering the certain factors, some of which may be relevant in present case also, which reads as under:- "8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken, thirdly, it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement' fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises." 34. In the present case, respondent/petitioner is asserting his right upon the suit property since beginning and he has filed suit for declaration of ownership and possession with respect to the suit property after declaring the Will dated 15.8.2011 legal and valid and Will dated 4.5.2010 null and void. Now mutation has been attested on the basis of Will dated 4.5.2010, which, 'Will' has already been assailed by the respondent/plaintiff. Therefore, amendment sought for assailing the attestation of mutation is imperative for proper and effective adjudication of case. Now mutation has been attested on the basis of Will dated 4.5.2010, which, 'Will' has already been assailed by the respondent/plaintiff. Therefore, amendment sought for assailing the attestation of mutation is imperative for proper and effective adjudication of case. It is in the nature of amplification of claim already set up by plaintiff and it does not introduce any new case in comparison to the original pleadings of plaint and thus it would neither result in changing of stand of plaintiff already taken nor will result in withdrawing any kind of admission made in plaint and it is not changing the nature and character of case fundamentally or constitutionally. The circumstance in which the amendment has been sought is indicating that the same is bonafide and refusing the amendment, in fact, leads to multiplicity of litigation as in case the plaintiff succeeds in his suit, he will again have to assail the mutation, attested in favour of petitioner/defendant. This amendment will not cause any prejudice to the petitioner/defendant as defendant will have the opportunity to refute the claim of plaintiff by filing amended written statement and to lead evidence to substantiate his defence. 35. The trial has also not completed yet and both the parties will have the chance to substantiate their claims and rebut the claim of opposite party by leading the evidence. 36. For the aforesaid discussion, made here-in above, by allowing the amendment sought by respondent/plaintiff, ends of justice would have been served. Therefore, I find no infirmity, irregularity, illegality or perversity in the impugned order passed by the trial Court. Therefore, the present petition is dismissed being devoid of any merit. No order as to costs.