Bhanu Pratap Singh Thakur vs Achhar Singh and Another

Deepak Gupta, J.—By means of this petition, the petitioner (hereinafter referred to as the plaintiff) lays challenge to the order dated 6th August, 2010 passed by the learned Civil Judge (Senior Division) Court No. 1, Mandi whereby the application filed by the respondents (hereinafter referred to as the defendants) for amendment of the written statement and also for counter claim has been allowed.

The plaintiff filed a suit for permanent prohibitory injunction. In this suit it was alleged that the plaintiff''s father Sh. Hardev Singh Thakur had sold a house and land situate on khasra No. 2112 to defendant No. 2 who is maternal Aunt of the plaintiff and defendant No. 1 who is her husband. It was further alleged that next to this house on khasra No. 2097 there was a kitchen and over some portion of khasra No. 2122 depicted as khasra No. 2122/1 measuring 8.40 sq.meters there existed a latrine and bathroom. Plaintiff''s case is that this land adjoins khasra No. 2112 and the father of the plaintiff permitted the defendants to use the kitchen, bathroom and latrine existing on khasra No. 2097 and 2122/1.

The stand of the defendants is that they had bought one house from the father of the plaintiff. Kitchen, bathroom and latrine were integral part of that house and they also pleaded that they were in possession since 13.11.1969 and have been treating this property to be in their ownership and as such in the alternative claimed ownership by way of adverse possession over the same.

Issues were framed and the case was fixed for plaintiff''s evidence and on the first day itself the defendants filed an application in which it was prayed that during the pendency of this suit they had come to know that in fact Hardev Singh Thakur, predecessor-in-interest of the plaintiff, had filed a suit against the State and obtained a decree that he was owner in possession of the disputed suit property. The defendants, therefore, wanted to amplify their written statement and also sought permission to file counter claim praying that the decree passed in favour of Hardev Singh Thakur was a collusive decree and not binding on them. This application has been allowed and the said order is under challenge by way of present petition.

It is urged before me by Sh.G.R. Palsra, learned Counsel for the plaintiff that defendants had taken the plea of adverse possession and they cannot, by way of amendment, be permitted to raise a counter claim.

Normally, this Court would not permit a counter claim by way of amendment but there is no bar to the same. The CPC does not lay down any limitation for filing of counter claim but it is expected that the counter claim is filed along with the written Statement. When Order 6 Rule 17 permits the amendment of pleadings there can be no bar to a counter claim being instituted by way of amendment. However, the limitation in respect of a counter claim will start from the date when it is filed in the Court. In the present case, I find that the case of the plaintiff is that the defendants were in permissive possession of the disputed land as his father had permitted the defendants to use the kitchen, bath room and latrine. If that is true, I do not understand how the father obtained a decree by filing a suit only against the State without showing the defendants to be in possession of the suit land. This, by itself, in my opinion, is a sufficient ground to allow the defendants to challenge the judgment and decree passed in the suit filed by the father especially when they were not parties to the said proceedings.

In view of the above discussion, I find no merit in the petition which is dismissed. No costs.