Rustom vs Ramzan and Others

M.L. Singhal, J.—The plaintiff moved an application under Order 6 Rule 17 CPC before Civil Judge, Junior Division, Gurgaon, which was dismissed by him vide order dated 9.9.1999. It is against this order that he has come up in revision to this Court, (he had filed another application for the framing of additional is- sue, namely, "whether defendant No. 1 sold the plot detailed in para 5 of the plaint vide sale deed dated 10.3.1987 and he allowed that application vide the same order and issue whether defendant No. 1 sold the plot detailed in para 5 of the plaint vide sale deed dated 10.3.1987 to be treated as additional issue (issue No. 2-A) and posted the case for rebuttal evidence).

Plaintiff has cotne up in revision against the order dismissing his prayer for amendment of the plaint under Order 6 Rule 17 CPC.

It was a suit for permanent injunction which he sought to amend. Through amendment, he wanted permission to pray decree for possession in the alternative in respect of the property detailed in para 7 of the plaint. Initially, the plaintiff prayed for a decree for permanent injunction restraining the defendant from interfering in his right of ownership and possession and also restraining them from raising any construction thereon. Later on, he prayed that he be allowed to claim in the alternative a decree for possession in respect of the property detailed in para 7 of the plaint. He sought possession on the basis of the sale deed dated 18.2.1991.

I have heard the learned counsel for the parties.

In my opinion, proposed amendment should have been allowed as through the proposed amendment, the plaintiff wanted decree for possession of the property detailed in para 7 of the plaint on the basis of title. He sought to plead that he purchased the property by means of sale deed dated 18.2.1991 and as such was entitled to possession if the Court came to the conclusion that he was not in possession and as such no injunction could be granted in his favour. A suit for possession based on title can be filed any time in view of he provisions of Article 65 of the Limitation Act. Article 65 of the Limitation Act reads as follows:-

"For possession of Twelve years When the possession of the defendant immovable property become adverse to the plaintiff. or any interest therein based on title.

Explanation - For the purposes of this Article-(a) where the suit is by a remainderman, a reversioner (other than a landlord, or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession:

(b) Where the suit is by a Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession."

If the plaintiff files suit for possession on the basis of title, the defendant can nonsuit him only by proving that he is in adverse possession for over the statutory period and by remaining in adverse possession for over the statutory period, he had acquired title by extinguishing the title of the plaintiff. In this case, the approach of the learned Civil Judge, Junior Division, Gurgaon, was misconceived.

So, this revision is allowed on payment of Rs. 500/- as costs. Plaintiff is allowed to amend his plaint accordingly.