Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 532 (MP)

Hariram v. Pahalwan Singh

2019-07-23

VIVEK AGARWAL

body2019
JUDGMENT 1. This misc. appeal has been filed by the appellants/defendants No. 1 to 6 under order 43 rule 1(u) CPC arising out of judgment and decree of remand dated 7.7.2017 passed by 2nd Additional District Judge, Shivpuri, in Civil Appeal No. 500019/2013 reversing the judgment and decree dated 22.4.13 passed by learned Civil Judge, Class I, Kolaras, Distt. Shivpuri, in Civil Suit No. 10-A/12. 2. Brief facts giving rise to present appeal are that plaintiffs/respondents No. 1 and 2 instituted a suit for declaration of title and permanent injunction in regard to agricultural land survey No. 465 measuring 1.32 hectares situated at village Lagda, Tahsil Kolaras, Distt. Shivpuri. It is submitted that relief of return of possession was not sought and during trial it was found that land in question was not in possession of the plaintiffs since inception of the suit, as a result of which suit was dismissed. 3. It is submitted by learned counsel for the appellants that learned first appellate Court, taking into consideration an application for amendment filed under order 6 rule 17 seeking a relief of return of possession, has remanded the matter which is illegal and arbitrary. Reliance has been placed by learned counsel for the appellants on the order of this Court in the case of Chhote Verma @ Jitendra & Anr. v. Munnalal Singhal & Ors. passed in W. P. No. 5249/2016 on 20.3.2017, so also order dated 18.1.2017 passed in W.P.No. 204/2017 (Vinod Kumar & Anr. v. Nafees Akhtar & Ors.). 4. On the other hand, learned counsel for the respondents/plaintiffs submits that law is well settled as has been laid down in the case of Kalyan Singh v. Vakil Singh and others as reported in AIR 1990 MP 295 that a suit for declaration of title with alternate relief of possession is maintainable. In para 20 of this judgment, it has been held as under: “20. In para 20 of this judgment, it has been held as under: “20. The legal position that flows from the above said authorities is as under: (i) Further relief than a mere declaration referred to in the proviso to section 34 of Specific Relief Act, 1963 contemplates the entitlement of the plaintiff as obtaining on the date of the suit; (ii) Entitlement of the plaintiff enabling seeking further relief based on an event occurring during the pendency of the suit would not render the suit not maintainable; (iii) It is the choice of the plaintiff to rest content by a mere decree for declaration in that suit and then to sue for further relief by bringing an independent suit subject to Law of Limitation or to pray for further relief by making an amendment in the plaint in that suit itself; (iv) Bar enacted by the proviso does not automatically entail dismissal of the suit but the plaintiff must be afforded an opportunity of amending the plaint if so desired; (v) Further relief cannot be granted to the plaintiff without the same having been specifically asked for.” 5. Reliance has also been placed on the judgment of the Supreme Court in the case of Mst. Rukhmabai v. Lala Laxminarayan and others as reported in AIR 1960 SC 335 wherein it has been held that an objection to the maintainability of the suit based on the proviso above-said should be taken at the earliest point of time because in that event, the plaintiff could ask for necessary amendment to comply with the proviso. It has been further held that it is a well settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. 6. After hearing learned counsel for the parties and going through the record, it is apparent from the judgment passed by the trial Court that present appellants, who were defendant, before the trial Court, have taken this objection in the first instance that in the suit land, plaintiffs are not having possession and such bhumiswami rights and actual possession is with the defendant No. 1 and remaining defendants are respectively wife, son and daughter of defendant No. 1. Objection was also taken to the effect that in 1994 who was the owner of disputed land and said land was purchased by the plaintiff from which person and for what consideration. It was also mentioned that plaintiffs never gave that land for share cropping and also never cultivated said land but defendant No. 1 has been in possession of said land and is cultivating said land for several years. Objection was also taken to the effect that cause of action as if arising on 3.11.2011 has been incorrectly shown. Plaintiff No. 2 had filed an application against defendant No. 1 on 15.9.2011 before the Court of Additional Tahsildar, Tappa Ranaud seeking possession of said land in which he has mentioned that defendant has taken possession of the land in absence of the plaintiff on 20.6.2011; therefore, the suit is not maintainable as such right should determine the possession are vested only with the revenue of Courts under section 250 of the MPLRC. 7. An application under order 6 rule 17 read with section 151 CPC was filed before the first appellate Court on 9.5.2013 that the plaintiffs are in possession of the suit land and the finding of the trial Court that plaintiff is not in possession of the suit land is incorrect. He has already filed an appeal which he is hopeful of being accepted but in the alternative plaintiffs want to amend the suit to the effect that in case Hon'ble Court comes to a conclusion that defendants have possession over the disputed property then plaintiffs be granted possession of said land contained in survey No. 465 measuring 1.32 hectares at village Lada, Pargana Kolaras, District Shivpuri. 8. Present appellant/defendants had filed reply to said application under Order 6 rule 17 read with section 151 CPC mentioning therein that there is a specific finding of the trial Court that plaintiff is not in possession of the suit property. An objection was also taken that at the stage of appeal, such amendment is not permissible and if such amendment is allowed at this stage, it will give rise to multiplicity of litigation. 9. An objection was also taken that at the stage of appeal, such amendment is not permissible and if such amendment is allowed at this stage, it will give rise to multiplicity of litigation. 9. Learned first appellate Court has remanded the matter placing reliance on the judgment of supreme Court in case of North Eastern Railway Administra-tion v. Bhagwan Das AIR 2008 SC 2139 , Revajeetu Builders and Developers v. M/s. Narayan Swami AIR 2009 SC (Supp.) 2897 so also law laid down in case of Surendra Kumar Sharma v. Makhan Singh as reported in 2010 (2) SCCD 945 and Manni Lal Dubey v. Gyasi Ram 1993 (I) MPWN Short Note 10. 10. As far as the judgment rendered in case of North Eastern Railway Administration (supra) is concerned, it deals with the facts prior to the amendment in Code of Civil Procedure made effective with effect from 1.7.2002. Besides this, another important aspect which has been enunciated by Hon'ble Supreme Court is that if official record exposing fraud committed upon Court in obtaining decree is brought on record, then in such cases, adducing additional amendment is permissible at the appellate stage. In para 15 of this very judgment, referring to judgment of the Supreme Court in case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & Ors as reported in AIR 1957 SC 363 , wherein it was held that all amendments ought to be allowed which satisfy two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. Keeping these principles in mind, inclusion of additional pleadings were permitted. Similarly, in case of Manni Lal Dubey (supra) facts were that plaintiff's title to the suit property was upheld by both the Courts below. Plaintiff's case was that he is owner of the piece of land and defendant had threatened trespass by attempting at sinking foundation. Defendant set up title in himself and denial of plaintiffs title. Both the Courts below found that plaintiff was owner of the suit property and defendant was a trespasser. Plaintiff's case was that he is owner of the piece of land and defendant had threatened trespass by attempting at sinking foundation. Defendant set up title in himself and denial of plaintiffs title. Both the Courts below found that plaintiff was owner of the suit property and defendant was a trespasser. The trial Court had decreed the suit but lower appellate Court dismissed the suit solely on the ground that the defendant's trespass was a completed act and unless and until the plaintiff had prayed for consequential relief, his suit for declaration and issuance of permanent preventive injunction merely was not maintainable. Under such facts and circumstances, amendment to the plaint was allowed at the appellate stage where plaintiff had claimed an additional relief of issuance of injunction in mandatory form directing removal of defendant's trespass. 11. In case of Kalyan Singh v. Vakil Singh and others as reported in AIR 1990 MP 295 , learned Single Judge of this High Court has noted in para 5 that a subsequent event which occurred during the pendency of suit, not disputed by either party and which is going to have a material bearing on the decision of this appeal, may also be noticed. During the pendency of the suit, proceedings under section 145 CrPC came to be decided wherein the defendant was declared to be in possession and receiver was directed to hand over possession to the defendant. Under such facts and circumstances, learned Single Judge noted that two questions arise: “15. Two questions arise: Whether the suit was hit by the proviso to section 34 of Specific Relief Act, 1963; and if so, whether the Court could notice subsequent event and grant relief to the plaintiff consistently with the subsequent events though the plaintiff had not asked for that relief. 16. In so far as the scope of the proviso to section 34 is concerned, it has been consistently the view of all the Courts ever since the decision of Privy Council in Humayun Begum v. Shah Mohd. Khan AIR 1943 PC 94 that the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only. In Sunderesa Iyer v. S. S. V. Nidhi Ltd., AIR 1939 Mad. Khan AIR 1943 PC 94 that the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only. In Sunderesa Iyer v. S. S. V. Nidhi Ltd., AIR 1939 Mad. 853 it was held: 'A suit for mere declaration that the plaintiff is the owner of certain property without consequential relief for possession is maintainable if at the time of the institution of suit the property is in possession of the Court pending the decision of the suit and not in the possession of the person against whom the relief is sought.' The Madras view was cited with approval before their Lordships of the Supreme Court in Deokuer and Another v. Sheoprasad Singh and Others AIR 1966 SC 359 . 17. In Deo Kuer (supra), the suit property was under attachment under Section 146, CrPC on the date of the suit. Their Lordships crystallised the law on the point as under: '.....whether in view of the attachment, the appellants could have in their suit asked for the relief for delivery of possession to them. If they could not, the suit would not be hit by the provision to section 42. The parties seem not to dispute that in the case of an attachment under section 146 of the Code as it stood before its amendment in 1955, a suit for a simple declaration of title without a prayer for delivery of possession is competent.' 'In our view, in a suit for declaration of title to property filed when it stands attached under section 145 of the Code, it is not necessary to ask for the further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment, the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant.' 'The authorities clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff, it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession.' 'There is no doubt that property under attachment under section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession.' It may incidentally be noticed that this has also been the consistent view of this Court. In Sakharam v. Tukaram AIR 1927 Nagpur 316 the property was under attachment under section 146, CrPC on the date of the institution of the suit. In Abid Ali Khan v. Secy. of State AIR 1951 Nag. 327, the property was in possession of Court of Wards on the date of the institution of the suit. In Halkibai v. State AIR 1957 MP 93, the property stood seized under section 524 (1) of CrPC 1898 on the date of the institution of the suit. In all the cases, it was held that a suit for bare declaration was competent and was not hit by the proviso abovesaid. However, in view of the law laid down by the apex Court, these authorities have been mentioned only to be noticed.” 12. In the present case, however, facts are different, which is not the case of plaintiff who was appellant before the first appellate Court that at the time of institution of suit, the property was in possession of the Court pending the decision of the suit and not in possession of the person against whom relief was sought. 13. In the present case, admittedly property was in possession of defendants inasmuch as plaintiff, before filing the suit on 22.2.2012, had already filed an application before Court of Nayab Tahsildar under section 250 of the MPLRC alleging that in his absence, possession was taken over by the defendants on 20.6.2011; therefore, ratio of law laid down in case Kalyan Singh (supra) is not applicable to the present case. In fact, law laid down in cases of North Eastern Railway Administration (supra), Revajeetu Builders and Developers (supra), Surendra Kumar (supra) & Mannilal Dubey is also not applicable to facts and circumstances of the present case because merely an objection was taken by the defendant before the trial Court that plaintiff is not in possession of the suit land, yet plaintiff had not taken any step to amend his plaint before the trial Court and in the first appellate Court also the amendment is half-hearted saying that in case appellate Court comes to a finding that plaintiff is not in possession of the suit land, then in alternative he prays for a relief of return of possession which is contrary to the material available on record. There is a proviso below section 34 of the Specific Relief Act, 1963, providing that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. In the light of law laid down in case of Kalyan Singh (supra), the legal position that flows is as under: “(i) Further relief than a mere declaration referred to in the proviso to section 34 of Specific Relief Act, 1963 contemplates the entitlement of the plaintiff as obtaining on the date of the suit; (ii) Entitlement of the plaintiff enabling seeking further relief based on an event occurring during the pendency of the suit would not render the suit not maintainable; (iii) It is the choice of the plaintiff to rest content by a mere decree for declaration in that suit and then to sue for further relief by bringing an independent suit subject to Law of Limitation or to pray for further relief by making an amendment in the plaint in that suit itself; (iv) Bar enacted by the proviso does not automatically entail dismissal of the suit but the plaintiff must be afforded an opportunity of amending the plaint if so desired; (v) Further relief cannot be granted to the plaintiff without the same having been specifically asked for.” 14. Thus, it is apparent from the pleadings itself that plaintiffs possession of the suit land was not withdrawn during pendency of the suit and when objection was taken by the defendants before the trial Court, plaintiff had an opportunity of amending the plaint but plaintiff did not avail that opportunity before the trial Court, and therefore, no further relief can be granted to the plaintiff without the same having been specifically asked for and in view of such legal position, ratio of judgment in case of Kalyan Singh (supra) is in fact against the plaintiffs. 15. Therefore, in the light of the amended provisions contained in order 6 rule 17 proviso, plaintiff/first appellant was required to show due diligence and also the fact that he could not have raised the subject matter of amendment application before the commencement of trial. In absence of such material available before the first appellate Court, in my opinion, first appellate Court clearly erred in allowing the amendment and remanding the matter to the learned trial judge. His order of remand is against the basic spirit of amendment of pleadings as provided under order 6 rule 17 CPC and cannot be sustained. The appeal is allowed. Impugned judgment of first appellate Court is set aside. Matter is remanded to the first appellate Court to decide the first appeal.