Andhra HC (Pre-Telangana)
Kommu China Saidaiah And Another vs Jallela Gangamma And Another on 13 March, 2001
Equivalent citations: 2001(4)ALD322, 2001(3)ALT421
ORDER
1. This revision petition is filed against the order dated 9-10-2000 passed by the trial Court in IA No.614 of 2000 in OS No.244 of 1996.
2. The petitioners are defendants in the suit. They filed the present IA under Order 8, Rule 6-A of CPC seeking the Court to accept the counter claim of cancellation of registered sale deed No.3138/1977. The trial Court dismissed the same as not maintainable. Hence the revision. For the sake of convenience, the parties shall be referred to as per the ranking assigned to them in the suit.
3. The suit was filed for permanent injunction against the defendants. The plaint averments are that the plaintiffs are the absolute owners and possessors of the suit land to an extent of Ac. 1-30 guntas each in Sy.No.384 of Chintapally revenue village; that when the defendants were trying to interfere with the peaceful possession and enjoyment of their property, the present suit was filed for permanent injunction.
4. The boundaries of the suit schedule property as narrated in the plaint is extracted as under:
"East: Tank Bund (kunta katta), West: Land of plaintiffs, North: Hillock and after that land of Pagadala Venkaiah. South: Tank (kunta) and the land of Dl Rehabilitation S.No.5/1".
5. On the other hand the defendants filed written statement inter alia slating that the suit property originally belong to D2 and he has been paying the land revenue to the Government and he got pattadar pass books and title deeds over the suit land in Sy.No.384-bit 4/2 to an extent of Ac.4-00 guntas of wet land in his favour. It was admitted in the written statement that the Mandal Revenue Officer issued pattadar pass books and title deeds in favour of the plaintiff over an extent of Ac.3-20 guntas in Sy.No.384 but in bit No.5/1 only but not in the suit schedule property as stated in the plaint. It is further stated that the plaintiffs father had purchased Ac.3-20 guntas of land from Dl in 1970 vide Bit No.5/1 in Sy.No.384 of Chintapally village; that in fact the plaintiffs' father had purchased Ac. 1-20 guntas each in two bits in separate boundaries classified as dry; that the land revenue receipts filed by the plaintiff pertain to 5/1 bit only, but not bit No.4/2 and, therefore, by showing these documents, the plaintiffs have been trying to interfere with the land of D2 in bit No.4/2 of Sy.No.384. It is further stated that in fact D2 is having pattadar pass book and title deed and also D- from patta in his favour and he has been paying land revenue for the said land.
6. In the written statement, the defendants have also given the boundaries of the suit schedule property. They are extracted as under:-
"East:Kunta Katta West: land of Kommu Pedda Saidaiah and Kommu Yellaiah North: Hillock (yena) South: Kommu China Saidulu"
7. From the above claim and counter claim it is clear that the plaintiffs father purchased the land belonging to D2 some where in 1977 under a registered sale deed. The said sale was for two different bits of land. Those two bits are situated in bit No.5/1. But on the other hand the defendants claim in nutshell is that though the plaintiffs admittedly have purchased an extent of Ac.3-20 guntas of land in the same survey number, but bit number is different. According to the defendants, the bit is 4/2.
8. Now the question is whether the disputed land is bit No.5/1 or 4/2 in Sy.No.384 of Chintapally village.
9. Along with the plaint, the plaintiffs have filed certain documents including the land revenue receipts, pattadar pass books etc., but they did not file the registered sale deed under which the suit land was said to have been purchased by their father. But only during the course of trial, the said document was pressed into service.
10. Now the defendants filed the present application under Order 8, Rule 6-A to accept the counter claim of cancellation of registered sale deed No.3138/1977. In this application, they firstly stated that the registered sale deed on which the plaintiffs have been relying upon, is itself a fraudulent document, because the boundaries are incorrect and further the thumb impression of Dl was obtained when he was a minor. Secondly and mainly they stated that only after filing of the written statement, the registered sale deed was filed after tampering the same, with the help of the document writer, in order to grab the land of the defendants by showing wrong boundaries and, therefore, the very basis for the plaintiffs to file the suit is such tampered and fabricated sale deed. They further stated that they have also filed a copy of the un-tampered clear sale deed prior to tampering by the respondent-plaintiffs for comparison.
11. As can be seen from the above, it is the clear and definite case of the defendants that the boundaries mentioned in the suit schedule are not the real boundaries. Further, though it was admitted that the plaintiffs' father had purchased some land from the father of Dl, but it is stated that the said land is different from the suit land and further the defendants emphatically claim that the registered sale deed on the basis of which the plaintiffs have filed the suit was tampered with by altering the boundaries. But the defendants did not specifically point out the alleged tampering of the registered sale deed in their written statement, obviously since the registered sale deed was not admittedly filed along with the plaint.
12. Therefore, it is clear from the above that there was no opportunity for the defendants to take the plea that the registered sale deed was fraudulent or tampered with. In my view the crucial document is the registered sale deed. When the plaintiffs filed the suit for permanent injunction, mainly relying on a registered sale deed, said to have been executed in the year 1977, they ought to have filed the same along with the plaint, which is most relevant document. On the other hand, it is the clear case of the defendants that a comparison of the certified copy of the registered sale deed issued by the Sub-Registrar, filed along with the IA., with the sale deed, which was pressed into service only during the trial by the plaintiffs, would disclose the fact of tampering of the boundaries. In such a case, if it is established that there was tampering in the sale deed produced by the plaintiffs, then it would be open for the defendants to ask for appropriate relief including that of cancellation of the said document on the ground of fraudulency or tampering.
13. The learned Counsel for the respondents/plaintiffs submitted that as per Order 8, Rule 6-A of CPC, the defendants are barred from filing a counter claim after the written statement was filed. This contention cannot be countenanced in the light of the language used under Order 8, Rule 6-A of CPC. Rule 6-A is of course subject to certain limitations as provided under sub-rules (2) and (3) to Rule 6-A. The conspicuous revelation from the pleadings of both the parties in the suit as well as in the IA is that the plaintiff did not file the registered sale deed which actually is the sheet-anchor for them and as a result, the defendants had no occasion or opportunity to review the same. Therefore, in the above circumstances and also in the light of the specific provision of Rule 6-A of Order 8 of CPC, I hold that the defendants can raise the counter claim even after the filing of the written statement. A perusal of the order of the Court below reveals that the judgment of the Apex Court in Mahendra Kumar v. State of MP., , was relied upon by the defendants. But the same was found by the trial Court as not applicable on the ground that the facts were different. But I am of the view that for the foregoing reasons and in the specific circumstances that the plaintiffs did not file the relevant document along with their plaint and that the defendants had no opportunity to review the same, the defendants can always invoke Rule 6 of Order 8 CPC. Therefore, I do not agree with the reasoning given by the Court below in this regard.
14. Now the respondents/plaintiffs placed reliance on a judgment in Sahebrao v. Bapurao, , wherein it was held that totally different and divorced causes of action are, surely, not intended to be clubbed or grouped nor could, as such, be tried in one suit. If such a liberal and uncontrolled meaning is given, anomalous positions would arise and even prejudicial effects would ensue. It was further held that ordinarily, there could be no objection to permit amendments, but where it appeared even from the application for amendment that the alleged counter-claim hardly had any connection with the defence or with the cause of action pleaded, it could not be allowed.
15. The law laid down in the above judgment is unexceptionable. But coming to the instant case, it was already noticed that the plaintiffs did not file the crucial document i.e., the registered sale deed along with the plaint and the defendants had no opportunity to counter the same in the written statement, and if during the course of trial if the sale deed produced by the plaintiffs is ultimately proved to be fraudulent or tampered with, the defendants would certainly have a right to seek for cancellation of the document. A careful reading of observations made by the Bombay High Court referred (supra), would only reveal that if the cause of action under the counter claim is totally unconnected with the main case, the same shall not be permitted in ordinary course. But in the instant case, both the plaintiffs and defendants have been relying upon the registered document. According to the defendants, the certified copy of the registered sale deed produced by them is genuine and the other document filed by the plaintiffs is tampered. At the cost of repetition, the contention of the defendants gains support from the fact of, the registered sale deed not being filed along with the plaint and the same was passed into service only during the course of trial and after the written statement was filed.
16. Further it has to be noted that even if the defendants fail in successfully establishing their case, they have to file a separate suit for declaration and possession or for any other appropriate relief, inasmuch as the present suit is only for permanent injunction. Therefore, in my considered view if the defendants were not permitted to raise the counter claim, particularly in the above peculiar and special circumstances, it would only result in multiplicity of litigation, which according to me has to be dissuaded by the Courts by all means. Therefore, the only plausible way to avoid this multiplicity of litigation is to permit the defendants to raise the counter claim and consequential rights of both the parties can be decided in one suit comprehensively.
17. Therefore, for the above reasons, the impugned order is set aside and the revision petition is accordingly allowed and the Court below is directed to accept the counter claim of cancellation of registered sale deed No.3138/1977, subject to compliance of other conditions enunciated under Order 8, Rule 6-A of CPC. No costs.