Punjab-Haryana High Court
Jagroop Singh And Anr. vs Bhajna on 21 March, 1994
Equivalent citations: (1994)107PLR626
JUDGMENT G.C. Garg, J.
1. Dismissal of application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the written statement has given rise to this revision petition.
2. Bhajna, plaintiff filed a suit for possession in respect of land measuring 16 kanals 12 marlas and 10 kanals 15 marlas on the ground that the said land had been aliened to his father in the year 1973. In paras 2 and 3 of the plaint, it was alleged that the defendants took forcible possession of the land in dispute about 5/6 months prior to the filing of the suit and their possession was, therefore, illegal and that the defendants had no interest therein.
3. Defendants filed joint written statement. Averments made in the plaint were denied as wrong and in para 2 of the written statement it was stated thus:
"Para No. 2 is wrong and is denied. The defendant is neither in possession of the land in question nor he has harvested any wheat crop from the land. The suit of the plaintiff is absolutely wrong, baseless and based on false statement of facts. The plaintiff filed a suit for injunction against the defendants in respect of Killa No. 41/12/2, 13, 14, 15 and 17/2 for restraining the plaintiffs for ever. The defendants had no concern with the land. The suit was accepted on this statement of the defendants. An application under Order 21 Rule 11 C.P.C., was filed against the defendants by the plaintiff on which the report of the Sadar Kanungo was called for as Commission who on 24.1.1988, reported that the possession is of the plaintiff. The defendants have not taken possession. The plaintiff had tendered additional evidence as a Decree-Holder. On 20.7.1988, the Court rejected the execution application. The plaintiff again filed application under Order 21 Rule 32 C.P.C. in the Civil Court against the defendants. Again, Commission was got appointed on 19.4.1988, Kanungo as Commissioner reported that the plaintiff is in possession who has cultivated and cut the crop. This application was also dismissed on 16.9.1989, by the Court of Senior Sub Judge, Sangrur. Now the plaintiff has again filed a suit for possession in respect of the land. But in this suit, Khasra No. 1 is the same as was in the earlier suit which is Khasra No. 17/2. In fact, the land of the plaintiff and the defendants are adjacent. The plaintiff is in the wrong impression that the defendants have encroached upon any part of his land. The plaintiff may got this land measured by getting the Commission appointed by the Court at any time. The defendants are neither at all in possession of any part of land of the plaintiff nor have any concern with his land. The defendants tendered in evidence report dated 24.1.1988 of the Local Commissioner, order dated 20.7.1988 of the Executing Court, report dated 19.4.1989, passed in case under Order 21 Rule 32 CPC".
4. During the pendency of the above suit, the petitioners filed two separate suits against Bhajana, plaintiff of this suit, in respect of the same land including the land in dispute in the above suit, for permanent and prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiff. Learned Senior Subordinate Judge, ordered the parties to maintain status quo as to possession by order dated February 1, 1991.
5. On February 5, 1991, the defendant-petitioners in proceedings under Order 39 Rules 1 and 2 C.P.C. made a statement that they will not interfere in the suit land which was in possession of the plaintiff. An order was accordingly passed. This order is subject matter of Civil Revision No. 1518 of 1991.
6. In the above situation and after realising the mistake committed, the petitioners moved an application seeking amendment of the written statement dated September 26, 1989. The prayer was for substitution of paras 2 and 3 in the earlier written statement with following paras:-
"Para No. 2 of the plaint is wrong and is denied. The suit land has neither been allotted to the plaintiff nor the plaintiff is in possession of the same. The possession is with the defendants. Khasra No. 41/17/2, 18, 19 were purchased by Jagroop Singh, defendant vide registered sale deed dated 28.1.1984 from its owner Babu Singh through Mukhtiar-Am Kanwar Singh and Jagroop Singh is in possession of it. Khasra No. 41/7/8, 9, 12/1, has been allotted by the Provincial Government to Hamir Singh defendant. Mutation No. 453 has also been sanctioned in favour of Hamir Singh. The plaintiff has no concern with this land.
Para 3 of the plaint is wrong and denied. The suit land was neither allotted to plaintiff nor to his father. Neither the plaintiff is owner nor is in possession of the land. Out of both the lands, Khasra No. 17/2, 18 and 19 out of Mustatil No. 4 are owned by Jagroop Singh defendant and Khasra No. 7, 8, 9 and 10/1 out of Mustatil No. 4 are owned by Hamir Singh defendant who are in possession of the same as owners. Single suit is not maintainable against both the defendants."
7. Dismissal of this application has given rise to this revision.
8. The revenue record does not prima facie support the contention of either of the parties. Plaintiff Bhajna or his father had not been reflected either to be the owner or to be in possession of the land in question either prior to the filing of the suit or thereafter. Similarly, the defendants are recorded to be the owners and in possession though in the written statement they pleaded that they have no concern in respect of one parcel of land measuring 16 Kanals 12 Marlas. Regarding other piece of land measuring 10 Kanals 15 Marlas, nothing was stated. Reference to the written statement would show that the defendants stated that the plaintiff had earlier filed a suit qua at least a part of this land which is factually incorrect. The plaintiff never filed a suit earlier qua khasra Nos. mentioned in para 2 of the written statement or the plaint. He rather filed a suit qua other land against the defendants and that suit was decreed, the defendants having no claim or concern over there. The plaintiff had pleaded that he was dispossessed from the suit land some 5/6 months prior to the filing of this suit but as earlier noticed, he was never shown in possession of the suit land prior to the filing of the suit. The defendants in the written statement alleged that they are not in possession which stand is contrary to the revenue record. Thus a reading of the pleadings of the parties, their respective stands at various stages go to show that the parties made pleadings without understanding the implications and without reference to record and on assumption. The written statement seems to have been drafted after having background of the previous suit between the parties whereas factually that land is not in dispute in this case.
9. The plaintiff has filed this suit based on title. But the learned counsel for the plaintiff prima facie could not refer to anything to show that the plaintiff is owner of the suit land and filing of two suits subsequent to the filing of the present suit also shows that the same were filed by the defendant-petitioners with a view to protect their possession over the land owned by them. The land involved in the two latter suits is the same as involved in this suit. Thus, in view of the factual position it seems apparent that written statement in this case was drafted in a most casual and careless manner which on the face of it, is erroneous. Reference to the previous suit, in para 2 of the written statement is totally misplaced and against facts. The admission made therein is thus, clearly shown to be erroneous. Once that is so, the defendants in my view are entitled to the grant of permission to seek amendment of the written statement. The other reason in support of this conclusion is that the suit is yet at the initial stage, the issues have also not been framed.
10. I do not agree with the contention of learned counsel for the respondent that admission once made in the written statement cannot be permitted to be withdrawn. In Gujjar Singh v. Gulzar Singh, 1991(2) Revenue Law Reporter 323, amendment of the written statement even at the appellate stage was permitted and the admission made earlier was allowed to be withdrawn after it was shown that the earlier admission was patently erroneous or was made on assumed facts. This is precisely what has happened in this case. In Panchdeo Narain Srivastava v. Km. Jyoti Sahay, A.I.R. 1983 S.C. 462, it was noticed that the procedural law is intended to facilitate and not to obstruct the court to do substantive justice and that the admission made by a party could be withdrawn or explained away.
11. Statement made regarding possession is relevant only in respect of order of injunction as it was made in connection with the disposal of the injunction application. It does not bind the parties regarding decision of the lis on the merits of the controversy raised in the pleadings. Parties will succeed or fail on the merits of the controversy raised and the evidence led in that behalf.
12. From the above, I am of the view that the defendant-petitioners have made out a case for grant of application, seeking amendment of the written statement as it has been demonstrated that the admission earlier made in the written statement was patently erroneous and based on assumed facts.
13. From the above position, it is now apparent that three suits are pending disposal between the parties relating to the same land. One was filed in the year 1989 and the other two in 1990. The fate of one suit has a bearing on the fate of other. In the circumstances, it is directed that all the three suits shall be consolidated and disposed of together. Since the suits are already more than 3 to 4 years old, it is further directed that the same be disposed of within one year after affording two to three effective opportunities to each of the parties to lead their evidence.
14. Anything said herein is only in the context of application seeking amendment of the written statement and may not be taken as an expression of opinion on the merits of the controversy raised in the suit. The suits shall be decided on their own merits and in accordance with law.
15. With the above observations and directions this revision is allowed subject to payment of Rs. 1000/- as costs to be paid by the defendant-petitioners to the plaintiff through a crossed demand draft. The parties through their counsel have been directed to appear in the trial Court on April 5, 1994 when the trial Court will consolidate the three suits and pass appropriate orders as to recording of statements of the parties before issues, if required and fix dates for evidence.