Patna High Court
Abdul Latif And Anr. vs Mahadeo Lal And Ors. on 19 November, 1975
Equivalent citations: AIR1976PAT229, AIR 1976 PATNA 229
JUDGMENT Madan Mohan Prasad, J.
1. This second appeal arises out of a suit for permanent injunction which has been dismissed by both the courts below.
2. The plaintiff appellants' case was as follows : One Baij Nath Lal is said to have been the raiyat of the suit plot as his self-acquired property. For some urgent necessities he is said to have sold this plot to his wife, Mossamat Kamli, who in her turn sold it to her daughter, who again sold it to the plaintiffs. The plaintiffs, therefore, claimed to be in possession of the suit land after their purchase. It was said that the defendants were making false allegations leading to a proceeding under Section 107 of the Code of Criminal Procedure and that they had set up defendant No. 4 to make a false claim to the land and the said defendant tried to construct a temporary shed on the portion of the land and hence the necessity of the suit for maintaining the statue quo.
3. The suit was contested by defendant No. 4 alone who claimed to be the purchaser of the said plot from defendants 1 to 3, the sons of the aforesaid Baij Nath Lal. According to him, the land was coparcenary property of Baij Nath Lal and his sons and he purchased a major portion of the plot in question from those defendants and the remaining portion from one Phulwanti to whom those defendants had sold that portion. His further case was that the sale deed executed by Baij Nath Lal in favour of Mossamat Kamli and his two sons was a farzi transaction and that in spite of it all the three sons of Baij Nath had acquired the property. He, therefore, alleged adverse possession of himself and his predecessors-in-interest as against the plaintiffs. He thus claimed to be in possession in his own right and to have constructed certain rooms on the land.
4. The trial court found that the sale by Baij Nath Lal was not to his wife alone, but also to defendants 2 and 3. It further found that her transferee, that is, her daughter, came to be in joint posses-
sion as a result of the sale to her which was valid to the extent of the interest of Baij Nath's wife. It further found that defendant No. 4 had also acquired a good title by the sale to him made by defendants 2 and 3, who were the original transferees from Baij Nath Lal. It, however, found that the plaintiffs had not come in possession and on that ground dismissed the suit. On the question of adverse possession it found against the defendants.
5. The plaintiffs went up in appeal and did not challenge the other findings except, that with regard to the validity and effect of the sale deed and the question of maintainability of the suit. The lower appellate court found agreeing with the court below that the plaintiffs had acquired the interest of Mossamat Kamli to the extent of her share in the. property sold to her by Baij Nath Lal and the defendant No. 4, acquired the interest to the extent of the interest which defendants 2 and 3 had acquired by virtue of their sale deed. On the second point again concurring with the trial court, it found that the suit for mere injunction was not maintainable in the absence of proof of possession of the plaintiffs.
6. The only point which has been raised by learned counsel for the appellants in the second appeal is that the court having found that the appellants had acquired a part of the interest of the property and had not come into possession, it should have decreed the suit to the extent of that interest for possession and granted permanent injunction in respect of that portion. In support of the argument, it is said that plaintiffs' title having been found, they were entitled to possession and, therefore, there was no difficulty in the courts below decreeing possession upon their own findings. Learned counsel has placed reliance on a few decisions to support the proposition that even though the suit may be framed one way, the court may grant a decree in respect of some relief which is not prayed for. They are Kedar Lal Seal v. Hari Lal Seal, (AIR 1952 SC 47); Nathaniel Uraon v. Mahadeo Uraon (AIR 1957 Pat 511); Pandohi Ahir v. Faruq Khan (AIR 1954 All 191); Ganga-ram Ram Chandra v. Butru Sao, (AIR 1952 Nag 202) and Tulsi Ahir v. Mosst. Sonia 1962 BLJR 261 = (AIR 1962 Pat 296). '
7. On the other hand, it has been contended by learned counsel for the respondents that the suit being not one for possession, but merely for permanent in-
junction on the assumption of the plaintiffs being in possession, it could not be decreed for possession for various reasons. Firstly, that the suit for possession at the present moment has become time-barred; secondly, that the plaintiffs came to court with the dishonest case of the sale of the entire property to them exclusively by an alleged exclusive owner; thirdly, that no petition for amendment of the plaint was filed at any stage upto the present day; fourthly, that the finding in respect of the case of the defendants that the sale deed by Baij Nath Lal was a farzi transaction is vitiated by non-consideration of the evidence in that respect, and because there is a wrong finding of the court to the effect that the respondents were not entitled to challenge the payment of consideration and, therefore, lastly a reopening of the matter, if at all, would require a reconsideration of the entire case and evidence on this point and fifthly, that it would change the very nature of the suit if such a decree were to be granted and that would be causing greet pre-judice to the defendants.
8. Now coming to the argument raised by learned counsel, for the appellants it must be remembered that the basic facts alleged by him were that the entire land had been sold by Baij Nath Lal to his wife alone, who sold it to his daughter who in her turn sold it to the plaintiffs and consequently the plaintiffs came in possession. The courts were not asked to adjudicate upon any of these facts and declare the title of the plaintiffs or grant possession of the property. The suit was thus not for any of these purposes. It was framed merely as a suit for injunction against the defendants on the finding that they had no right to interfere with the possession of the plaintiffs. The question is whether such a suit could in substance be allowed to be treated as a suit for possession and if the court in such circumstances could grant a decree for possession?
9. I may as well state at the outset that the decisions on which reliance has been placed by learned counsel are entirely different on facts and the law laid down therein has no application to the present case. In AIR 1952 SC 47 (supra) the suit was in respect of a mortgage where the plaintiff claimed to have satisfied the mortgage and claimed to receive the balance and the learned Judges held that in substance the plaintiff had asked for a mortgage decree though the plaint was inartistically drafted. There-
fore, though the plaintiff had not used the word 'subrogation' he had asked in substance for a relief to which a subrogee would be entitled and, therefore, the learned Judges said that a claim could not be thrown out on a mere technicality of the pleading when the substance of the plaint was there and no prejudice was caused to the other side.
In AIR 1957 Pat 511 (supra) the plaintiffs had sued for possession, they and the defendants being the descendants of common ancestors instead of granting a decree for ejectment, the court granted a decree for joint possession.
In AIR 1954 All 191 (supra) again by the suit exclusive possession was asked for, but joint possession was given.
In AIR 1952 'Nag 202 (supra) also it was a suit for exclusive possession of properties belonging to the joint family and it was held that it could be turned into a suit for partition and possession of such share only as might be determined to belong to the plaintiffs, In 1962 BLJR 261 = (AIR 1962 Pat 296) (supra) the suit was for a declaration that a sale deed executed by a female was not binding on the plaintiffs because it was the coparcenary property. It was, however, decreed as a suit also on the basis of his reversionary right, the claim being said to be implicit in the plaint.
It will thus appear firstly that the real question is whether the relief which the court is going to grant is one which in substance has been prayed for in the plaint and secondly whether it will cause any prejudice to the other party.
10. Coming to the facts of the present case, firstly, no prayer for amendment of the plaint has been made nor was ever made. An amendment of the plaint would be obviously necessary for the simple reason that even though the courts below might have held that the plaintiffs got title by virtue of the sale deed, they were really not called upon to do so. The suit not being for possession at all, it is difficult to say how the courts could have granted possession, more so in a suit which was framed only for the relief of permanent injunction where the very, fact which the plaintiffs had to prove was their possession.
11. The question which next arises is whether in the absence of any prayer, in view of the arguments raised, should an amendment of the plaint be ordered for. In the circumstances of the present case, I am inclined to the view that it will not be fair or just to the other party for that would change the very nature of the suit and it is well settled that by an amendment one is not allowed to change the nature of the suit itself. Secondly, the appellants framed their suit in such a manner by suppressing certain facts which must have been within their knowledge in order to gain advantage. It was their case that the property had been sold by Baij Nath Lal to his wife alone, it appears from the sale deed itself that Baij Nath Lal had transferred it not only to his wife but even to his two sons defendants 2 and 3 though not to his other son defendant No. 1. The appellants did not make out a case of being entitled only to a part of the property in spite of the sale deed and that is the reason why they did not invite the courts to adjudicate upon their title. There seems to be another reason for that; namely, avoidance of payment of court-fees under Section 7 (iv) (c) of the Court-Fees Act on the market value of the suit lend. It has been held toy this Court in Prahlad Mohanti v. Prahlad Chandra Das (AIR 1944 Pat 276) that where a person knowing all the facts comes to court on false averment, he is not entitled to any indulgence of having his plaint amended at the stage of second appeal. In that case the plaintiff was entitled to eject the defendants under a right conferred by Section 52 of the Bengal Land Revenue Sales Act, but he did not sue to eject the defendants on that ground. Therefore, the learned Judge said that the circumstance that his claim under Section 52 had become barred by time at the stage when the second appeal was heard was also one reason why the plaintiff should not be granted the indulgence. The circumstances of the present case are similar and I respectfully concur in the view expressed by the learned Judge. There is yet another reason for not allowing this prayer. It appears that the court below did not consider the entire evidence in respect of the question as to whether the deed executed by Baij Nath Lal in favour of his wife and two sons was a farzi transaction. The court below has said wrongly that "the plea of the defendants was not that it was farzi in the sense of being a benami transaction, but what has been alleged by him is that the deed was not acted upon", and further that "as for the question of passing of consideration.....he (defendant) is a third party to the transaction and hence his challenge about passing of consideration cannot be accepted". Here the defendant was undoubt-
edly challenging the transaction as a sham and colourable farzi transaction without any consideration. True, generally speaking a third party is not entitled to raise the question but where the allegation is that a deed is farzi the question of passing of consideration is a relevant one and the question regarding the farzi character of a document can be raised not only by the parties to the document, but also by a third party and in such oases undoubtedly even a third party can show absence of consideration for the purpose (c)f holding the deed to be a farzi one. If at all, the court below could have granted the decree as contended by learned counsel for the appellants in the absence of the consideration of the question of farzi that would have been of no avail and liable to be set aside by this Court. If this Court grants the indulgence to the plaintiff appellants, this matter will have to be gone through afresh. In fact, as I have said earlier, the nature of the whole suit would change and apart from that it would be necessary to give an opportunity to the defendant respondents to file a fresh written statement which would require a reconsideration of the entire matter de novo. In the circumstances of the present case, it would not be a just and proper course to adopt. Lastly, it was open to the plaintiff appellants to file a suit for possession for they knew very well that they were transferees from only one of the persons to whom the original transfer had been made by Baij Nath Lal. It is thus obvious that it was a deliberate act not to frame the suit in that manner and such a suit will now be barred by law of limitation. It is also obvious that they valued the suit only on the relief of injunction at the sum of Rs. 200 and paid court-fees thereon even though their sale deed showed that they had purchased the same for a sum of Rs. 800. Therefore, the question of valuation also will have to be determined afresh. To conclude, there does not appear to be any circumstance in equity as well which should impel the Court to go to this great length for allowing the plaintiffs to get the relief which they could have got by a different suit, but they did not ask for it.
12. For the reasons aforesaid, the contention of learned counsel is untenable in the circumstances of the present case. This appeal is accordingly dismissed. In the circumstances of this case, however, I will not make any order as to costs of this appeal.