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Himachal Pradesh High Court · body

2021 DIGILAW 779 (HP)

JOGINDER SINGH v. PADAM CHAND

2021-09-30

JYOTSNA REWAL DUA

body2021
ORDER : 1. An application moved by the defendants for amendment of the written statement at the stage of evidence was partly allowed by the learned trial Court vide order dated 4.11.2014. The plaintiff has challenged this order in the instant petition filed under Article 227 of the Constitution of India. 2. The status of the parties hereinafter is being referred to as it was before the learned trial Court: (i) Suit was filed by the plaintiff for vacant possession of the land comprised in Khata Katauni No.101/295(Old) 130/326 (New) and old khasra No.293min, 292, 298, 300 min and new khasra No.719, 723, 725, 734 and 735 total kitas 05, area measuring 00-25-01 hectares situated at Chak Chirgaon, Tehsil Chirgaon, Distt. Shimla H.P. It was submitted that the plaintiff was owner of the suit land. Defendants had illegally encroached upon the suit land, unauthorizedly planted apple plants over the same and changed the nature of the suit land. (ii) The defence was that the defendants were non-occupancy tenants over the suit land and thus had become owners in possession of the suit land. It was pleaded that the possession of the defendants and their ancestors over the suit land to the knowledge of the plaintiff was open, continuous and peaceful. Therefore the defendants had become the owners of the suit land by way of adverse possession. (iii) Plaintiff led evidence in support of his contentions. At the stage of evidence, defendants moved an application under Order 6 Rule 17 read with Section 151 Code of Civil Procedure for amendment of written statement. It was pleaded in the application that jamabandi for the year 1970-71 already on record of the case had an entry reflecting them as non-occupancy tenants 'bila adaigi lagan bawaza bai'. In view of this entry, defendants pleaded that the suit land was sold to their ancestors by oral sale due to which non occupancy tenancy was created without payment of rent. It was also stated that prior to 1970, operation of Section 54 of the Transfer of Property Act as well as provisions of the Limitation Act were exempted in respect of sale in the State of Himachal Pradesh. Registration of the instrument was not required to transfer perfect title to the vendee. In view of such assertion, the defendants pleaded that they were entitled to set up alternative plea on the basis of the oral sale. Registration of the instrument was not required to transfer perfect title to the vendee. In view of such assertion, the defendants pleaded that they were entitled to set up alternative plea on the basis of the oral sale. Three specific amendments in the written statement proposed by the defendants in para 6 of their application were as under:- "(a) New para 2-A of Preliminary objections is to be added as "That since the non-occupancy tenancy has been created Bila Adaigi Lagan Bawajja Hai, hence in case, the defendants are not to be found non-occupancy tenants, then alternatively the defendants have become owners by virtue of oral sale having been made in between the intervening period i.e. 1966-97 and 1970-71 because entry of the ancestors of the defendants Bila Adaigi Lagan Bawajja Hai has for the first time recorded in the jamabandi for the year 1970-71. Meaning thereby oral sale has taken place prior to 1970-71. it is pertinent to mention here that during the said period no registered instrument was required specifically for executing the sale conveying the perfect title upon the vendee in view of the fact that operation of Registration Act as well as Section 54 of TPA was exempted in HP. So oral sale was permissible. Therefore, previously the ancestors of the defendants and now the defendants have become owners in possession of the suit land by virtue of sale. (b) That para 2(b) is to be added as "That even otherwise, if the sale is also found defective on technical grounds that in alternative the defendants have become owners of the suit land by virtue of adverse possession on account of defective title in view of the sale made prior to 1970-71 and the period of adverse possession has started running with effect from 1970, when the entries for the first time has been recorded as baa waza bai in the name of ancestors of defendants. Since the year 1970 the plaintiff and his ancestor have never claimed the possession nor raised any objections till filing of the present suit. So the possession of the ancestor of the defendants and how the defendants since the year 1970 had been, has been and is open, continuous, peaceful, uninterrupted and to the knowledge of the ancestor as well as the plaintiff. So the possession of the ancestor of the defendants and how the defendants since the year 1970 had been, has been and is open, continuous, peaceful, uninterrupted and to the knowledge of the ancestor as well as the plaintiff. (c) In para 2 on merit after the word possession of the defendants, the words "That the defendants have also constructed 4 one storied houses over the suit land in the year 1988 to the knowledge of the plaintiff. At the time of construction of the house and thereafter the plaintiff at any point of time has never raised any objections qua construction of the house by the defendants also. So at this belated stage the plaintiff is estopped to file the suit "are to be added." On consideration of the application, learned trial Court vide order dated 4.11.2014 allowed the amendments prayed for by the defendants in Clause a) and b) of para-6 of the amendment application but denied the amendment prayed in Clause c). The defendants have accepted the order. Plaintiff has questioned this order in the instant petition. 3. Learned counsel for the petitioner/plaintiff contended that the amendment application was liable to be dismissed. The application was moved at the stage when the plaintiff had already concluded his evidence. The defendants had not explained any cogent reason for the delay in moving the application. On this sole ground, the application was required to be dismissed as the defendants had not been diligent in pursuing the litigation. In support of such contention, learned counsel relied upon various judgments. Learned counsel for the respondents/defendants argued that amendments sought for by them and as allowed by the learned trial Court were just and necessary for the proper adjudication of the Us. Amendments allowed by the learned trial Court will not change the nature of the suit filed by the plaintiff. The amendments were based upon the legal grounds available to the defendants. The factual basis for the additional pleas was already available in the pleadings and in the records of the case. Learned counsel for the respondents also relied upon certain judgments in support of this submission. 4. I have heard learned counsel for the parties and gone through the record. It is an admitted position that the application for amending the written statement was moved by the defendants after conclusion of plaintiff's evidence. Learned counsel for the respondents also relied upon certain judgments in support of this submission. 4. I have heard learned counsel for the parties and gone through the record. It is an admitted position that the application for amending the written statement was moved by the defendants after conclusion of plaintiff's evidence. In their original written statement, the defendants had claimed ownership of the suit land on the basis of their being non-occupancy tenants and automatic vestment of title in their favour on that count. Alternatively, defendants had also claimed ownership by way of adverse possession. By the proposed amendments, the defendants wanted to take plea of adverse possession on the strength of defective title by way of oral sale. It is well settled that parameters for amending the written statement are different from the ones for amending the plaint. The defendant can take many pleas, which may be inconsistent or alternative pleas. In the factual matrix of the case, the amendments sought by the defendants and allowed by the learned trial Court will not change the nature and character of the suit. Admission of any kind made in the written statement was not being withdrawn by the defendants. No prejudice will be caused to plaintiff by permitting the two amendments in question in favour of the defendants. The revenue record on the basis of which the additional plea was being sought to be taken was already on record. There was no element of surprise for the plaintiff. The pleas were being raised on the strength of jamabandis for the years 1966-67 to 1970-71. Allowing of such pleas would not only avoid multiplicity of litigation between the parties but would also help in proper adjudication of real controversy between the parties. 5. Learned trial Court, therefore, did not commit any error in allowing the defendants to amend the written statement by taking pleas as per Clause a) and b) of para-6 of their application moved under Order 6 and Rule 17 CPC (extracted above). However taking into consideration the provisions of Order 6 Rule 17 Code of Civil Procedure and the fact that amendment application was moved by the defendants after the closure of the evidence by the plaintiff, it would be just and proper to compensate the plaintiff in this regard on account of lack of due diligence on part of the defendants in pursuing the litigation. Therefore, instant petition is dismissed and impugned order passed by the learned trial Court on 04.11.2014 is upheld to the extent it allows the defendants to amend the written statement in terms of Clause a) and b) of para-6 of the amendment application and rejects the amendment proposed in Clause c) thereof. However the amendments are allowed subject to cost of Rs.20,000/- to be paid by the defendants to the plaintiff on the next date of hearing. Parties through their learned counsel are directed to appear before the learned trial Court on 18.10.2021. Registry is directed to return the record of the case to the learned trial Court forthwith.