Khushi vs Mohd. Ishaq

V.K. Jhanji, J.—Mohd. Ishaq, plantiff-respondent No. 1 filed a suit for declaration that he is owner-in-possession of the suit land to the extent of 1/9th share. The said declaration was sought on the ground that he was born on 11th December, 1954 and defendants No. 1 and 2 i.e. petitioners claimed that they have purchased the share of the plaintiff in the suit land vide registered sale deed dated 29th June, 1970, The plaintiff alleged that he was a minor at the time when the sale deed was executed and according to law, being a minor, he was not competent to enter into agreement with any one and thus the sale in favour of defendants No. 1 and 2 was illegal, void and not binding upon the plaintiff.

The suit was contested by defendants No. 1 and 2 who stated that the impugned sale deed was validly executed by the plaintiff, as he was 21 years of age at that time.

Learned trial Court after appreciation of the entire evidence brought on the file, found that the sale is not binding on the plaintiff as he was a minor at the time of executing the sale deed. The trial Court further found that at the time of execution of the" sale died the plaintiff represented himself to be 21 years of age and accepted a sum of Rs. 2,500/- as consideration of the sale and was thus bound to return the same to defendants No. 1 and 2. Thus, the trial Court granted declaration to the plaintiff that he is owner-in-possession to the extent of 1/9th share and the sale deed dated 29th June, 1970 is null and viod. However, the defendants were made entitled to recover Rs. 2,500/- from the plaintiff.

Being aggrieved of the judgment and decree of the trial Court defendants No. 1 and 2 who are, in fact, real uncles of the plaintiff, filed an appeal before the first Appellate Court. During the pendency of the appeal, an application was filed by the petitioners under Order VI Rule 17 of the Civil Procedure Cods for amendment of the written statement so as to take up two legal objections; one was that the suit filed by the plaintiff was barred by time and the second was that the defendants-petitioners have become owners of the suit land by way of adverse possession. The first appellate Court vide impugned order dismissed the application on the ground that the same has been filed in order to delay the proceedings.

Counsel for the petitioners has impugned the said order by way of this revision petition. Counsel contended that the first legal objection (i e. the suit is barred by time) is purely a legal question. He further contended that the defendants shall not lead any evidence on this legal objection and prove his plea from the pleadings and the evidence already brought on the record. With regard to the second legal objection of the defendants becoming owners by way of adverse possession, he contended that by inadvertence the said plea could not be taken at the time when the written statement was filed in the trial Court.

After hearing learned counsel for the parties, I am of the view that leave to amend the written statement can be granted only where the amendment sought will not be inconsistent with the plea taken in the original written statement and where no right of the defendants is defeated by allowing the amendment. As far as the proposed amendment with regard to the suit being barred by time is concerned the trial Court ought to have allowed petitioners to amend the written statement because suit being barred by time is purely a legal question and can be decided on the basis of the pleadings and the evidence on record. However, the plea of the defendants that they have become owners by adverse possession, is totally inconsistent with the original case set up by the defendants and cannot be allowed. The first appellate Court was absolutely justified in not permitting the plaintiffs to amend the written statement'' so as to take up a plea of their having become owners by adverse possession.

Consequently, the revision petition is partly allowed. The first appellate Court shall permit the defendants to amend the written statement to take up legal objection of suit becoming barred by time. However, it is made clear that defendants shall not be allowed to lead any evidence on this plea. Parties are left to bear their own costs.