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2019 DIGILAW 846 (GAU)

Md. Safiqul Islam v. Lakheswar Deka

2019-07-22

PRASANTA KUMAR DEKA

body2019
ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. N.N. Jha, the learned counsel for the petitioners. Also heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Ms. N. Ahmed, learned counsel appearing for the respondents. 2. This revision petition is against the order dated 3.9.2014 passed in Title Suit No. 157/2007 by the learned Civil Judge, No. 3, Kamrup(M) at Guwahati. Title Suit No. 157/2007 was filed by one Md. Safiqul Islam, son of late Tanu Miah @ Islam against the present defendants respondents. The original respondent No. 1, Lakheswar Deka died during pendency of the revision petition and his legal heirs were substituted duly. The respondent Nos. 2 to 5 purportedly sold land measuring 2 kathas to the original respondent Lakheswar Deka by way of a registered sale deed way back on 27.2.1964. The respondent Nos. 2 to 5 instituted Title Suit No. 31/1964 in respect of said land measuring 2 kathas seeking for a declaration in the then court of learned Sub-Judge at Guwahati that except them no other persons had title and possession over the suit land. The suit was transferred to learned Munsiff No. 1 at Guwahati and the same was renumbered as Title Suit No. 205/1967 which was dismissed on 16.11.1967. The respondent No. 1 Lakheswar Deka instituted Title Suit No. 21/1974 in respect of the same land claiming his right, title and interest over the suit land against the said respondent Nos. 2 to 5 as the defendants. The suit was decreed in favour of Lakheswar Deka. On the basis of the said decree, Execution Case No. 5/1998 was initiated in the then court of learned Civil Judge (Jr. Divn) No. 1, Guwahati. On the basis of execution, the plaintiff Safiqul Islam who was possessing a portion of the said land measuring 2 kathas was evicted after demolishing the standing structures including the house standing thereon and possession was delivered to said Lakheswar Deka. Pleading that the earlier suits were filed behind the back of Safiqul Islam though he is one of the legal heirs of late Tanu Miah and his mother having inherited a portion of the said land measuring 2 kathas from her father, Safiqul Islam the plaintiff in Title Suit No. 157/2007 sought for reliefs mentioned hereinbelow: "(a) a decree may be passed declaring that the plaintiff has right, title, interest over the suit land described in the Schedule-'A' hereinbelow. (b) a decree may be passed declaring that the sale deed described in the schedule-'B' hereinbelow executed by the defendant Nos. 2 to 5 in favour of the defendant No. 1 being deed No. 1301/64 dated 27.2.64 cannot effect the right, title, interest and possession of the plaintiff and other heirs of late Tahiran Nessa in the suit and the same is fraudulent and not binding upon the plaintiff. (c) a decree may be passed declaring that the judgment and decree dated 14.5.86 passed by the Asstt. District Judge, No. 1 at Guwahati in Title Suit No. 21/74 and the judgment and decree dated 23.12.97 passed in Title Suit o. 312/96 by the Civil Judge(Jr. Divn) No. 1 at Guwahati are void and not binding upon the plaintiff. (d) a decree may be passed for permanent injunction restraining the defendant No. 1 from, executing the decree dated 23.12.97 passed in T.S. No. 312/96 by the Civil Judge(Jr. Divn) No. 1 at Guwahati and from entering into the suit land evicting the plaintiff from the same. (e) a decree may be passed for issuance of decree/order to the sub-Registrar, Guwahati for cancellation of the sale deed described in Schedule-'B' hereinbelow executed by the defendant Nos. 2 to 5 in favour of the defendant No. 1. (f) a decree may be passed for all costs and incidentals of the suit. (g) a decree may be passed for any other relief or reliefs which are entitled to the plaintiff under the law and equity." 3. In Title Suit No. 157/2007 the respondent No. 1 filed his written statement admitting that the said Safiqul Islam is one of the legal heirs of Tanu Miah including two other sons namely Nurul Islam and Tazul Islam. The said written statement was also annexed with the genealogical tree of the family of the plaintiff indicating the name of Safiqul Islam. 4. One Ishwar Chandra Deka, son of Lakheswar Deka(defendant in Title Suit 157/2007) lodged an FIR on 8.3.2013 before the Officer-in-Charge, Paltan Bazar, Police Station alleging that Safiqul Islam falsely declared himself to be the son of late Tanu Miah @ Islam in the plaint of Title Suit No. 157/2007 and the accompanying affidavit with an oblique intention to harass his father by filing Title Suit No. 157/2007. On the basis of said FIR Paltan Bazar P.S. registered case No. 168/2013 u/s. 420 IPC. On the basis of said FIR Paltan Bazar P.S. registered case No. 168/2013 u/s. 420 IPC. The said act of registration of the police case on the basis of the FIR dated 8.3.2013 was challenged with a prayer for quashing the said FIR u/s. 482 Cr. P.C. which was registered as Crl. Pet. 958/2013 in the Hon'ble Gauhati High Court. Vide order dated 19.3.2014 the said petition was allowed directing Paltan Bazar P.S. Case No. 168/2013 u/s. 420 IPC to be closed. While passing the said order, a direction was made to the learned Civil Judge No. 3 to frame a specific issue regarding the paternity and maternity of the plaintiff of Safiqul Islam in Title Suit No. 157/2007. On the basis of said direction Petition No. 2782/2014 was filed by the defendant No. 1(Lakheswar Deka) with a prayer to frame an additional issue regarding paternity and maternity of the plaintiff. Prior to that another application was filed, which was registered as Petition No. 788/2014 under Order 6 Rule 17 CPC by the said defendant No. 1 in order to amend the written statement filed in Title Suit No. 157/2007. 5. By the impugned order dated 3.9.2014 both the petitions seeking framing of additional issue and amendment of the written statement were allowed. 6. Mr. Jha submits that he has no grievance in respect of framing the additional issue as there is a direction from this court and as such the party did not challenge before the higher court as such they are bound including the court below by the order and the direction for framing additional issue. However, he submits that the amendment petition ought not to have been allowed inasmuch as there is a specific admission on the part of the said defendant No. 1 that the plaintiff in the suit Safiqul Islam, is one of the sons of late Tanu Miah @ Islam. Once an admission is made in the pleading, the same cannot be withdrawn by way of amendment but the court below allowed to substitute such admission by the amendment sought for by the defendant No. 1. 7. Relying Ram Niranjan Kajaria and others Vs Sheo Prakash Kajaria and others reported in (2015) 10 SCC 203 , Mr. Once an admission is made in the pleading, the same cannot be withdrawn by way of amendment but the court below allowed to substitute such admission by the amendment sought for by the defendant No. 1. 7. Relying Ram Niranjan Kajaria and others Vs Sheo Prakash Kajaria and others reported in (2015) 10 SCC 203 , Mr. Jha submits that once an admission is made by the defendant in the written statement and if by filing subsequent amendment petition, the court allows to substitute the said admission, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission by the defendant. Accordingly, Mr. Jha sought for setting aside and modify the said order dated 3.9.2014 setting aside the order allowing the amendment of the written statement. 8. Mr. Choudhury, learned Senior counsel submits that there is a specific direction for framing an additional issue and as hereinabove observed, the said order was never challenged in the higher courts and as such the plaintiff and the court below is bound by the same. Before an issue is framed there must be pleadings to that effect otherwise framing of an issue is totally irrelevant. Accordingly he objects to the submission of Mr. Jha on the ground that in order to adduce evidence the defendant requires the pleadings and as the amendment is in respect of the written statement, there does not arise any question as to the nature of the suit will change and the plaintiff will be prejudiced. 9. I have considered the submissions of the learned counsel. On perusal of the amendment petition No. 788/2014 of the defendant and more specifically in the schedule, it is observed that the defendant No. 1 by way of said amendment also sought for substituting some of the paragraph in the written statement in order to change the defence pleaded and already on record. It is also noticed that some of the paragraph in the written statement are sought to be replaced by introducing additional paragraph in the written statement. The learned court below while deciding the said amendment application held as follows: ".......Reliance is placed in this connection on the decision of the Hon'ble Supreme Court reported in (2007) 5 SCC 602 . It is also noticed that some of the paragraph in the written statement are sought to be replaced by introducing additional paragraph in the written statement. The learned court below while deciding the said amendment application held as follows: ".......Reliance is placed in this connection on the decision of the Hon'ble Supreme Court reported in (2007) 5 SCC 602 . Applying the above settled proposition to our case, it is apparent that the prayer of the defendant No. 1 for amendment of his written statement seems to fall within the four corners of "addition of new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement". Further, as the Hon'ble High Court has already directed to frame a specific issue regarding the paternity and maternity of the plaintiff in the suit, it is necessary to allow the amendment, as I have already observed herein before, and there is hardly any question of any irretrievable prejudice being caused to the plaintiff by such amendment. Furthermore, in view of the framing of the additional issue as per direction of the Hon'ble High Court, the proposed amendment is necessary for determining the real question in controversy between the parties. The prayer of the petitioner is, therefore, worth allowing. In the result, the prayer of petition No. 788/14 stands allowed." 10. The learned court below failed to take note of the relief sought for by the defendant No. 1 in the amendment application. On perusal of the written statement of the defendant No. 1, it is found that in para 4 it is pleaded that " the father of the plaintiff Tanu Miah and his two brothers Shahjahan @ Tazul Islam and others were made parties in Title Suit No. 21 of 1974." Similarly in para 7, the defendant No. 1 pleaded that for the purpose of better understanding the relationship of the heirs of Ratan Dewan, a genealogical table is given at the end of this written statement and sought the leave to treat the same as part of written statement. 11. In the schedule of the amendment petition the defendant sought to replace the aforesaid pleading in para 4 by substituting the said pleading as referred in para 4 of the schedule to be introduced. Similarly the paragraph 7 of the written statement is also modified by striking out the genealogical table. 11. In the schedule of the amendment petition the defendant sought to replace the aforesaid pleading in para 4 by substituting the said pleading as referred in para 4 of the schedule to be introduced. Similarly the paragraph 7 of the written statement is also modified by striking out the genealogical table. On total reading of the amendment petition, I found that the defendant sought for substituting some of the pleadings which as per Mr. Jha is purported admission on the part of the defendant No. 1 giving an advantage/benefit to the plaintiff. The learned trial court rightly held that there is no bar for addition of new ground of defence or altering a defence or taking inconsistent pleas in the written statement. But as referred by Mr. Jha the Hon'ble Apex Court held that if the amendments made by the defendants in the form of admission is allowed, the plaintiff will be prejudiced by being denied the opportunity of extracting the admission from the defendant which is the actual position for which an admission cannot be allowed to withdraw. If the said observation is taken into consideration and looked back into schedule of the amendment petition, I am of the opinion that the learned court below was not correct in allowing the prayer for amendment as made in the petition No. 788/2014. The learned court below failed to take note of substitution of the purported admission of the defendant. 12. Accordingly, the said order allowing the amendment petition No. 788/2014 requires to be interfered which I accordingly do by setting aside the same to the extent of allowing the amendment application. The learned court below shall reconsider the amendment petition and keeping in view that the same are defence plea, the said amendment petition shall be allowed but confining the same only to the paragraph sought to be introduced without substituting any of the pleadings made in the earlier written statement. 13. Accordingly, this revision petition stands allowed to the extent mentioned above. Parties to this suit shall appear before the court below on 19.8.2019. Interim order passed earlier stands vacated.