AI Structured Summary
Not yet generated for this judgment
Judgment
Deepak Gupta, J.—The appellants (hereinafter referred to as the plaintiffs), filed civil Suit No. 12 of 1985 in this Court on 4th March, 1985. The plaintiffs are the legal heirs of late Raja Surender Singh who was the ruler of Nalagarh State at the time when India attained independence. It was claimed that the suit property comprised in khewat khatauni No. 1/1, khasra No. 1, measuring 113 bighas 12 biswas, Jangal Nand, Pargana Nawan Nagar was the personal property of Raja Surender Singh and as per the terms of accession whereby Nalagarh State merged into the Union of India, this property was declared to be the personal property of Raja Surender Singh. It was further alleged that on 3rd March, 1984, defendants 3&4 threatened to interfere in the possession of the plaintiffs which led to the filing of the suit and by means of this suit the plaintiffs prayed that a decree may be passed restraining the defendant-State from interfering in the ownership and possession of the plaintiffs.
The suit was contested by the State and according to the State the suit land was never in possession of the plaintiffs or their predecessor-in-interest and earlier remained in the possession of the Forest Department of Nalagarh State and later the Forest Department of the PEPSU State, thereafter the Punjab State and then the State of Himachal Pradesh. It was claimed that this property was not the private property of Raja Surender Singh and was in fact a forest and in terms of the conditions of accession it could not have been declared his private property. It was contended that the Forest Department from time to time had been auctioning the forest in question to various forest contractors for the sale of rosin / resin. It was also claimed that the suit was not within limitation and any right, title and interest that the plaintiffs may have and had, had been lost by efflux of time.
The following issues were framed in the suit:
Whether the suit is within limitation? ...OPP
Whether the suit has been properly valued for the purpose of Court fees and jurisdiction? ...OPP
Whether the suit property was the private property of late Raja Surender Singh and the plaintiffs are now its owners in possession? ...OPP
Whether the right, title or interest, if any, of the plaintiffs in the suit property has been lost by afflux of time, as alleged? ...OPD
Whether a valid notice u/s 80 CPC has been served upon the defendants? ...OPP
Whether the present suit for mere injunction is not maintainable? ...OPD
Relief.
After framing of issues and after some evidence on behalf of the plaintiffs was recorded, the plaintiffs sought amendment of the plaint seeking an alternative relief of possession and pleaded that in case they are found to be not in possession or having been dispossessed during the pendency of the suit then a decree for possession of the suit property be passed. By means of the amendment application, a decree for rendition of accounts was also sought to be passed in favor of the plaintiffs and against the defendants.
On 23.12.1993, the Court directed the plaintiffs to make specific averment by way of supplementary affidavit and clearly state whether they have been dispossessed during the pendency of the suit or they were out of possession earlier. The plaintiffs filed a supplementary affidavit, again stating that if they had been dispossessed, such dispossession had taken place during the pendency of the suit.
The learned Single Judge dismissed the application mainly on the ground that the suit was filed in the year 1985 and in that year itself the State had clearly taken an objection that the plaintiffs were not in possession of the suit land and the application for amendment was filed in the year 1993 and there was nothing in the application or the supplementary affidavit which could indicate the date on which the plaintiffs were dispossessed. It would be pertinent to mention that the learned single Judge while dismissing the application also came to the conclusion that in case it is proved on record that at the time of the filing of the suit the plaintiffs were in actual possession of the suit land and had been dispossessed during the pendency of the suit, the Court could grant the relief of possession without amendment of the plaint also. As far as the prayer for amendment seeking relief of rendition of accounts was concerned, the learned Single Judge held that since the plaintiffs claimed themselves to be in possession of the suit land they could not seek rendition of accounts.
Due to the change in the pecuniary jurisdiction of the Courts, the case was transferred to the Court of the learned District Judge and finally the learned District Judge vide his judgment and decree dated 17.10.1997 dismissed the suit of the plaintiffs. According to the learned District Judge, the suit property was State property, prior to the formation of the Patiala and East Punjab States Union, was managed by the Forest Department of the State and could not have been declared the private property of Raja but somehow it was got declared to be private property. He further held that though the requisite revenue records were changed and the property shown to be the private property of the predecessor-in-interest of the plaintiffs but the possession, control and management remained with the forest Department and in fact the property in question was declared to be a protected forest which indicated that it was owned by the Government. He also held that the plaintiffs were not in possession of the suit land and therefore no reliance could be placed on the revenue entries. He went on to hold that the defendant-State had been openly and without objection from the plaintiffs has been in possession of the suit land for more than 45 years and the title and the possession of the State had ripened into ownership by way of adverse possession. Therefore, the suit was also held not to be within limitation. Aggrieved by this judgment, the plaintiffs have filed the present appeal.
We have heard Sh. K.D. Sood, learned counsel for the plaintiffs and Sh.Vivek Singh Thakur, learned Additional Advocate General for the State.
The first and foremost challenge made by Sh. K.D. Sood, is to the order dated July 8, 1994 passed by the learned single Judge of this Court whereby the application for amendment was disallowed. Mr.K.D. Sood, vehemently submitted that the State cannot claim any benefit on the basis of the piratical right of adverse possession. He further submitted that the learned Single Judge gravely erred in rejecting the application for amendment especially with regard to the alternative relief of possession claimed by way of amendment. On the other hand, Sh.Vivek Thakur submits that the amendment could not have been allowed since it was sought at a highly belated stage and further more according to him when prima facie the relief claimed was time barred the learned single Judge was right in rejecting the prayer for amendment.
Both the learned counsel have cited a number of judgments before us on the issue of amendment of pleadings. The basic law in this behalf was laid down by the Apex Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , wherein the Apex Court observed as follows:
It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.
The Apex Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, approved the following observations of Batchelor J. in Kisandas Rupchand v. Rachappa Vithoba, 33 Bom. 644:
All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, asunder stand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?
The Apex Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, , again considered the question as to whether an amendment should be allowed when the new case or new cause of action is barred. It held as follows:
7.......The general rule no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.
Thus, the Apex Court now widened the scope and held that if the amendment does not constitute the addition of new cause of action or raise a different cause, the amendment can be allowed even after the statutory period of limitation.
In Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, , the Apex Court went on to hold that in exceptional cases an amendment can be allowed even if it takes away from the defendant a legal right which has accrued upon the defendant by lapse of time. The following observations of the Apex Court are relevant for our purpose:
.......... The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases on amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is outweighed by the special circumstances of the case.
In Radhika Devi Vs. Bajrangi Singh and others, , plaintiff filed a suit for partition. The defendant in his written statement claimed that the property in dispute had been gifted to him. The plaintiff filed an application for amendment seeking declaration that the gift deed was obtained illegally and fraudulently much after the period of limitation had expired. In these circumstances, the Apex Court held that the amendment could not be allowed as it defeats the right of the plaintiff.
In T.L. Muddukrishanan and another Vs. Smt. Lalitha Ramchandra Rao, the parties entered into an agreement for sale of immovable property. The plaintiff filed a suit for mandatory injunction praying that the defendant be directed to comply with the terms of the agreement. Much after the period of limitation had expired, the plaintiff filed an application under Order 6 Rule 17 CPC seeking specific performance of contract. In this factual background, the Apex Court held as follows:
Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, November 5, 1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint.
The question, under what circumstances an amendment should be allowed, again came up for consideration before the Apex Court in B.K.N. Narayana Pillai Vs. P. Pillai and Another, , wherein the Apex Court held as follows:
..............All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite part on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
In Sampath Kumar Vs. Ayyakannu and Another, , the Apex Court held that even a delay of 11 years in filing the application for amendment is by itself is not a ground for rejecting the application and the question of delay should not only be decided by calculating the period from the date of institution of the suit but also by taking into account the stage to which the hearing in the suit has proceeded. The Court also held that normally applying the doctrine of relating back, an amendment of pleading would relate back to the date of filing of the suit or written statement as the case may be but the court has the power to direct otherwise and in certain cases the Court may order that the amendment will not relate back but the suit will be deemed to have been amended at a later date. The Apex Court held as follows:
Order 6 rule 17 of the CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
An amendment once incorporated relates back to the date of the suit. However, the doctrine of relating back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed.
In North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., the Apex Court held as follows:
Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar )
In State of Maharashtra Vs. Hindustan Construction Company Ltd., the Apex Court was dealing with a case arising out of the Arbitration and Conciliation Act, 1996, wherein at the appellate stage the memo of appeal was sought to be amended. The question before the Apex Court was whether an amendment could be allowed after the period of limitation provided under the Arbitration Act for filing objections had expired. The Apex Court held as follows:
L.J. Leach and Company Ltd. and Pirgonda Hongonda Patil, seem to enshrine clearly that courts would, as a rule, decline to allow amendments, if a fresh claim on the proposed amendments would be barred by limitation on the date of application but that would be a factor for consideration in exercise of the discretion as to whether leave to amend should be granted but that does not affect the power of the court to order it, if that is required in the interest of justice. There is no reason why the same rule should not be applied when the Court is called upon to consider the application for amendment of grounds in the application for setting aside the arbitral award or the amendment in the grounds of appeal u/s 37 of 1996 Act
It is true that, the Division Bench of Bombay High Court in Vastu Invest and Holdings Pvt. Ltd. held that independent ground of challenge to the arbitral award cannot be entertained after the period of three months plus the grace period of thirty days as provided in the proviso of sub-section (3) of Section 34, but, in our view, by `an independent ground'' the Division Bench meant a ground amounting to a fresh application for setting aside an arbitral award. The dictum in the aforesaid decision was not intended to lay down an absolute rule that in no case an amendment in the application for setting aside the arbitral award can be made after expiry of period of limitation provided therein.
It is in the light of the aforesaid judgments that we proceed to consider the application filed by the plaintiffs for amendment of the suit. The nature of the suit does not change at all. The plaintiffs still claim to be owners in possession of the suit land. The basis of their case also does not change. They continue to claim that this property was private property of their predecessor-in-interest Raja Surender Singh and declared as such by Rajparmukh of Patiala State. At this stage, we are not going into the merits of the rival contentions of the parties. However, it would be relevant to mention that as per the terms of the covenant (Ext.P-14) entered into between the Rulers of Faridkot, Jind, Kapurthala, Malerkotla, Nabha, Patiala, Kalsia and Nalagarh with the Union of India for formation of the Patiala and East Punjab States Union (PEPSU), the Rulers of these of these States agreed to unite and integrate their territories in one State by the name PEPSU which would be a part of the Union of India. The PEPSU State was to be initially governed by the council of Rulers and one of the Rulers was to be the President or the Rajparmukh. Article XII of the covenant provided that the Ruler of each covenanting State shall be entitled to full ownership, use and enjoyment of all private properties as distinct from State properties. As per Clause (2) of Article XII, the Ruler was to furnish to the Rajparmukh an inventory of the immovable properties etc. held by him as private property. Clause (3) of Article XII provided that if any dispute arose as to whether any property or item is a private property of the Ruler or the State property then such dispute was to be referred for decision to a person to be appointed by the Government of India in consultation with the Rajparmukh. The Predecessor-in-interest of the plaintiffs submitted a list of properties and the Rajparmukh vide his communication dated 11th April, 1949 (Ext.P-19) conveyed to the predecessor in-interest of the plaintiffs the final inventory approved by the Government of India with regard to the personal properties. This included jungle Nand measuring 21 acres which was declared to be a private property of Raja of Nalagarh. Thereafter, no dispute was raised in terms of the arbitration clause referred to above. We are purposely not going into this question in detail but we are prima facie of the view that the aforesaid covenants have not been property appreciated by the learned District Judge.
Taking into consideration, all the aforesaid factors, we are of the considered view that by allowing the amendment in so far as the relief of possession is concerned, the nature of the case or the cause of action shall not change. We are clearly of the view that the learned single Judge erred in rejecting the application for amendment. Therefore, we allow the application for amendment but further direct that the amendment for the purposes of limitation shall not relate back to the date of filing of the suit but the suit shall be deemed to have been amended from the date when the application for amendment of the suit was filed i.e. 31st May, 1993. The Apex Court has passed a judgment in State of Haryana Vs. Mukesh Kumar and Others, deciding certain important issues vis-�-vis the rights of the citizens and the right of the State to claim adverse possession. Another moot question which arises is whether the State can claim that a citizen looses his right to claim possession of his property due to efflux of time. These questions are to be decided by the learned trial Court and cannot be decided at the time of deciding an application for amendment. Therefore, the question whether the claim of the plaintiffs is barred or not is itself a highly disputed question which should be decided by the learned trial Court after hearing the parties.
During the course of the present appeal, the plaintiffs have filed CMP Nos. 333 of 2009 and 979 of 2010 under Order 41 Rule 27 CPC seeking permission of the Court to place on record a copy of the order dated 16.9.2005 passed by the Financial Commissioner (Appeal) and the copy of the mutation whereby the Jungle in question was mutated in the name of the predecessor-in-interest of the plaintiffs. The plaintiffs have also sought to produce on record certified copy of the mutation dated 21.2.1951. The State has filed a detailed reply and wants to place on record a number of documents, basically the revenue record and certain orders relating to the land in question. All the evidence sought to be produced by way of additional evidence is documentary evidence.
The parties have stated that other than leading documentary evidence they do not want to lead any other evidence. Therefore, the applications for leading additional evidence are allowed and both the parties are permitted to lead additional evidence by placing on record the documents which have been filed with the applications and the reply(s) filed by the State. We are allowing the applications for leading additional evidence since these documents are necessary to decide the dispute between the parties and also in view of the fact that the matter has to be remanded to the learned District Judge for decision afresh.
In view of the above discussion, the order of the learned single Judge rejecting the application for amendment of the plaint is set-aside, the applications is allowed to the extent that the plaintiffs shall be permitted to pray for the relief of possession but the application is rejected in so far as the prayer for rendition of accounts is concerned. The applications for leading additional evidence are also allowed in the aforesaid terms. The parties shall not be allowed to lead any evidence other than the documents which they have produced in this Court. The parties through their learned counsel are directed to appear before the learned District Judge, Solan on 23.2.2012. Learned District Judge is directed to dispose of the suit latest by 30.6.2012. No costs.