Naresh Kumar vs Din Dayal Chiripal

Sat Pal, J.—This petition has been directed against the order dated 21.4.1997 passed by the Civil Judge, Senior Division, Bhiwani. By this order, the learned Civil Judge has allowed the amendment sought by the defendant in part 10 of the written statement. True English translation of para-10 reads as under :-

"That the true facts of the case are as that the defendant as well as Shri Ghanshyam Dass-father of the plaintiff had been closely related, therefore, Raj Kumar son of the defendant, plaintiff-Naresh Kumar, Ram Kumar son of Ganpat agreed to deal in the properties in partnership. In was agreed upon that plaintiff, Raj Kumar son of the defendant would have 1/2 share. Ram Kumar also said that his son Ramesh Kumar would also be a partner in this business.

The aforesaid Naresh Kumar - Raj Kumar, Ram Kumar and Ramesh Kumar entered into a partnership to deal in the business of lands and for this purpose they kept/retained the defendant, their Karinda/consultant. In pursuance to this partnership business, agreement dated 22.5.1989 to purchase the land measuring 24 kanals 0 marla comprised in khasra numbers 169/18/2 (7-4) 19(8-0), 20(8-0) (21/1/1 (0-16) situated in village Palwas Tehsil and District Bhiwani was made with the owner Mangtu son of Nanhar resident of Palwas, Tehsil and Distt. Bhiwani. Another agreement dated 19.6.1989 to purchase the lands measuring 39 Kanals 14 marlas comprised in khasra number 158//18/l(6-8) 23/2(6-12) 24(8-0) 25 (8-0), 169//1/1/2 (3-2) 21(7-12) situated in village Palwas, Tehsil and Distt. Bhiwani was made with its owner Umed Singh son of Ramji Lal, resident of village Palwas Tehsil and Distt. Bhiwani.

Another agreement dated 9.6.1989 to purchase the lands measuring 13 kanals 6 marlas comprised in khasra numbers 169//7/2 (5-6) 8 (8-0) situated in village Palwas, Tehsil and Distt. Bhiwani was made with its owner Chander Singh son of Gabdu Ram son of Sh. Sish Ram, resident of village Palwas, Tehsil and Distt. Bhiwani. Another agreement dated 30.1.1990 to purchase the land measuring 21 kanals 7 marlas comprised in khasra number 169//3(8-0) 4(8-0) 5/1(5-7) situated in village Palwas, Tehsil and District Bhiwani was made with its owner Gulab Singh and Ram Kumar sons of Gabdu Ram son of Sish Ram of village Palwas, Tehsil and Distt. Bhiwani.

Another agreement dated 19.6.1989 to purchase the lands measuring 40 kanals 0 marlas comprised in khasra numbers 1697/13(8-0) 14(8-0) 15(8-0) 16/2(7-4) 17(8-0) 18/1(0-16) situated in village Falwas, Tehsil and Distt. Bhiwani was made with its owners Banarsi son of Nathu Ram, resident of village Palwas, Tehsil and Distt. Bhiwani. In this way total lands measuring 138 kanals 7 marlas was agreed to be purchased vide the aforesaid five agreements. Thereafter, agricultural lands measuring 93 kanals 7 marlas out of the above detailed lands measuring 138 kanals 7 marlas, which was agreed to be purchased vide aforesaid agreements, was got sold to Hari Ram, Vasdev, Jainarain and Sanjay directly from its owners. In this way out of the total lands measuring 138 kanals 7 marlas which was agreed to be purchased vide aforesaid five agreements, only lands measuring 45 kanals 0 marla was left for which no purchaser offering adequate price was available. Due to this reason, sale deed with regard to the lands measuring 45 Kanals 0 Marlas was got made in favour of the plaintiff.

The profit, which was so derived by sale of 93 kanals 7 marlas lands to Hari Ram, Vasdev, Jainarain and Sanjay out of the total lands measuring 138 kanals 7 marlas was distributed among the four partners, but the expenses account was left open to be settled on the sale of remaining lands measuring 45 kanals 0 marla. In the circumstances as such one purchaser to purchase the lands measuring 45 kanals 0 marla was not available to Ram Kumar-Ramesh Kumar - Raj Kumar and Naresh Kumar-after the sale of the lands having been got made in the name of plaintiff-Naresh Kumar. Since Naresh Kumar-plaintiff used to do his business in Tansukhia (Assam) and since it was troublesome for the plaintiff Naresh Kumar to come to Bhiwani again and again to execute the sale deeds, so it was decided that in order to effect the sales of the lands, Din Dayal-defendant be appointed Attorney. In these circumstances, plaintiff-Naresh Kumar executed a deed of power of Attorney in favour of the defendant.

Thereafter under the instructions of Naresh Kumar-plaintiff, Raj Kumar, Ramesh Kumar and Ram Kumar defendant sold the lands measuring 45 kanals 0 marlas and on having settled the accounts all the four partners distributed the amounts among themselves. The accounts, so done after the sale of the lands measuring 45 kanals is shown in Annexure ''A''. In this way the defendant is not liable to pay any amount. But as the relations of the plaintiffs father with the defendant have deteriorated, so Ghanshyam Dass has got the suit filed by his son."

The amended para-10 in terms of the proposed amendment reads as under:-

"That the plaintiff has kept concealed the true facts. So the suit is liable to be dismissed. The facts are as under :-

That the defendant, vide various agreements, had agreed/settled to purchase the agricultural lands measuring 130 kanals 7 marlas situated in village Palwas for a sale consideration of Rs. 1,38,600/- form its owners Mangtu Ram son of Nanar, Chander Singh son of Gabdu Ram, Banarsi son of Nathu Ram, Umed Singh son of Ramji Lal, Gulab Singh and Ram Kumar, sons of Gabdu Ram residents of village Palwas, Tehsil and District Bhiwani. The defendant did not get the agreements of sale executed in his favour. He got executed three agreements dated 22.5.1989, 19.6.1986 and 19.6.1989 out of the aforesaid five agreements in favour of his trusted person, Ram Kumar son of Ganpat resident of Lohar Bazar, Bhiwani. He also got executed another agreement dated 9.6.1989 in favour of his trusted person . Ramesh son of Ram Kumar son of Ganpat resident of Lohar Bazar, Bhiwani. Another agreement dated 30.1.1990 was got executed from its owners in favour of Raj Kumar son of the defendant. All these agreements are in possession of the defendant. The defendant paid the entire sale consideration in advance to the owners of the land at the time of the execution of the agreements. After some times, defendant got transferred without any consideration agricultural land measuring 93 kanals 7 marlas from the land owners to/in favour of his trusted persons Hari Ram, Vasdev, Jainarain and Sanjay by getting the sales made directly. It is due to this reason that lateron, by means of the decree passed in separate civil suit, aforesaid Hari Ram-Vasdev -and Sanjay have transferred the lands in favour of the defendant.

Ram Kumar, brother of the defendant and elder brother of the plaintiff are Sandhu in relation. Due to the reasons, defendant and the plaintiff are in relations. On account of this relationship, elder brother of the plaintiff and the plaintiff had been the trusted person of the defendant. On account of this relationship and the trust, the defendant got the sale of the agricultural land measuring 45 kanals 0 marla effected in favour of the plaintiff from the land owners without having any sale consideration from him. The sale deeds are 190, 191, 192, 212 dated 7,5.1990 and a sale deed No. 612 dated 9.5.1990. All the original sale deeds are with the defendant and the plaintiff has no sale deed in his possession. In this way defendant is the real owner/purchaser of the land in dispute and thus only the sale deeds relating to the agricultural lands were got executed in favour of the plaintiff by the defendant. Due to the reasons, plaintiff has no concern or relation with the agricultural lands so purchased. The plaintiff was not present at the time of registration of the sale deed, nor was he residing in Bhiwani at that time. He was residing in Tansukhia (Assam) in relation to his business. Since the plaintiff has no concern or right in the lands measuring 45 kanals, therefore, the defendant with a view to recover his own money by transferring the lands got himself appointed the general attorney. The defendant, on the basis of this power of attorney sold the lands measuring 45 kanals 0 marla and has. recovered his money. The plaintiff is not entitled to recovery of any amount of sale consideration from the defendant. After the sale of the aforesaid lands, relation of the defendant with the father of the plaintiff deteriorated due to domestic reasons, so Ghanshyam Dass, father of the plaintiff has got the suit instituted against the defendant on the basis of false pleas."

Notice of this petition was issued to the respondent.

Mr. Sharma, the learned counsel appearing on behalf of the petitioner-plaintiff submits that in the original para-10 of the written statement, the stand taken by the defendant was that the business of the land was being done by a partnership firm consisting of Naresh Kumar, Raj Kumar, Ram Kumar and Ramesh Kumar and the defendant was the power of attorney holder of plaintiff Naresh Kumar, but in the proposed amended para-10, the defendant has pleaded that the entire money for the purchase of land was given by the defendant and the plaintiff was only a benami owner as the sale deeds were got executed in his favour without any consideration. The learned counsel, therefore, contends that by the proposed amendment the defendant has completely changed the nature of his original defence. He further contends that the amendment sought is mutually destructive to the earlier written statement and as such the learned trial court was not correct in allowing the application seeking amendment of the written statement filed by the defendant. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in Shiromani Gurdwara Parbandhak Committee v. Jaswant Singh (1972)116 P.L.R. 648 (S.C.) and a judgment of this Court in Prem Kumar Vs. Gurdeep Singh, .

Mr. Goel, the learned counsel appearing on behalf of the respondent, however, submits that it is well settled that by way of amendment even admission made by the defendant can be withdrawn and contradictory plea can also be raised by way of amendment. He submitted that by the proposed amendment, at best, it can be said that the defendant has taken a contradictory and inconsistent plea but this was permissible in terms of law laid down by the Apex Court and this court. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in Akshaya Restaurant Vs. P. Anjanappa and Another, and two judgments of this Court reported in Daya Ram v. Puran Chand etc. (1974)76 P.L.R. 100 and Gujjar Singh v. Gulzar Singh and Ors. (1991)100 P.L.R. 266.

After hearing the learned counsel for the parties and having perused the impugned order, I am of the opinion that the impugned order can not be legally sustained. As stated herein above, in the original written statement, the stand taken by the defendant was that the land in dispute was purchased by a partnership firm consisting of four partners namely Naresh Kumar, Raj Kumar, Ram Kumar and Ramesh Kumar and the defendant was only a power of attorney holder of the plaintiff Naresh Kumar whereas in the amendment sought by the defendant, the plea taken by the defendant is that he had paid the entire amount for the purchase of the land and the sale deed was executed in the name of the plaintiff who was only a Benami and infact plaintiff had not paid any amount. From these facts, it is clear that the plea taken by the defendant in the proposed amendment is mutually destructive to the earlier plea and it is not permissible in view of the law laid down by the Supreme Court in the case of Shiromani Gurdwara Parbandhak Committee (supra). In Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co., the Supreme Court held that it was not permissible to introduce by way of amended facts which would completely change the nature of the original defence. From the facts staled herein above, it is evident that the new facts taken by the defendant would entirely change the nature of the defence as in the original written statement, the defence taken by the defendant was that the land in dispute was purchased by a partnership firm consisting of four persons mentioned herein above whereas in the proposed amendment, the stand taken by the defendant is that infact he had invested the entire amount and plaintiff is only a benami person.

In view of the above discussion, the petition is allowed and the impugned order dated 21.4.1997 passed by the learned trial Court is set aside. Consequently, the application filed by the defendant under Order 6 Rule 17 C.P.C. for the amendment of the written statement stands dismissed. The parties are, however, left to bear their own costs.