Mukut Rajyalaxmi And Anr vs Jitendra Singh And Ors on 12 December, 2019

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Rajasthan High Court - Jodhpur

Mukut Rajyalaxmi And Anr vs Jitendra Singh And Ors on 12 December, 2019

1. This petition is directed against order dated 4.3.17 passed by the Additional District Judge, Jaisalmer in Civil Misc. Case No.510/16, whereby an application preferred by the plaintiffs- respondents seeking leave to amend the plaint has been allowed.

2. The facts relevant are that the respondent no.1 & 2 herein filed a suit for possession, mesne profit and permanent injunction (Downloaded on 13/12/2019 at 02:34:51 AM) (2 of 10) [CW-4299/2017] against the petitioners herein and proforma defendant, the respondent no.3-Hukam Singh, in respect of a part of the property known as 'Mandir Palace' situated in town Jaisalmer, alleged to be in unauthorized occupation of the petitioners herein. The description of the property alleged to be in unauthorized occupation is set out in para no.3 of the plaint.

3. Late Maharaval Jawahar Singh, who was sovereign ruler of Jaisalmer, on 1.12.1928, by way of a document 'Maryada', granted ownership and title over the property to Shri Hukam Singh. The document was also signed by Shri Girdhar Singh, the eldest son of Shri Jawahar Singh and was counter signed by Diwan of Jaisalmer Shri M.R.Sapat. After death of Shri Jawahar Singh, Shri Girdhar Singh vide Government order dated 5.4.1949 acknowledged the ownership and occupation of Shri Hukam Singh over the property in question. On 7.3.1949, respondent no.3-Hukam Singh executed gift deeds of some portions of the disputed property in favour of his mother Smt. Kalyan Kumari, wife Smt. Girdhar Kumari and sister-in-law (bhabhi) Smt. Hawa Kumari II wife of Shri Girdhar Singh. Thus, the disputed property stood divided in four parts owned by Smt. Kalyan Kumari, Smt. Hawa Kumari, Smt. Girdhar Kumari and Shri Hukam Singh.

4. At the time of merger of the Jaisalmer State in India, the different parts of the disputed property were included in the lists of private properties of donees Smt. Kalyan Kumari, Smt. Hawa Kumari, Smt. Girdhar Kumari and original owner Shri Hukam Singh. According to the plaintiffs, Smt. Kalyan Kumari vide Will dated 11.7.1986 bequeathed her portion of the disputed property in favour of her grand son, the plaintiff no.1-Dr.Jitendra singh, Smt. Hawa Kanwar by way of a registered Will bequeathed the (Downloaded on 13/12/2019 at 02:34:51 AM) (3 of 10) [CW-4299/2017] property in favour of the plaintiff no.2-Shri Shivendra Singh, the son of plaintiff no.1 and Smt. Girdhar Kumari by way of registered Will dated 14.4.08 bequeathed the property in favour of plaintiff no.1-Dr.Jitendra Singh and thus, on the strength of the Will executed as aforesaid, the plaintiffs acquired the ownership of three respective portions of the disputed property indicated as above. Later, by way of partition of the properties of joint Hindu family, the portion of the property owned and possessed by Shri Hukam Singh also fell in the share of the plaintiff no.1 and thus, the plaintiffs no.1 & 2 became the owner of the property 'Mandir Palace', which was originally transferred by late Shri Jawahar Singh in favour of Shri Hukam Singh, the respondent no.3 herein, by way of 'Maryada' document dated 1.12.1928.

5. According to the plaintiffs, on account of deep and affectionate relationship, a portion of the disputed property was given by the respondent no.3 herein-Shri Hukam Singh for residence to his elder brother Girdhar Singh and nephew Raghunath Singh and thus, the petitioners no. 1 and 2 herein, the wife and son of Shri Raghunath Singh, are presently occupying the disputed part of the property as licensees. The plaintiffs while terminating the license by way of a notice, filed the suit claiming the relief as aforesaid. In the suit filed, no relief was claimed by the plaintiffs against the respondent no.3-Shri Hukam Singh, however, he was impleaded as party defendant in the suit inasmuch as, the plaintiffs were claiming the ownership of the disputed property through him.

6. The suit filed is being contested by the respondents inter alia claiming that the suit has been filed by the plaintiff in collusion with their father and grand father, the defendant no.3-Shri Hukam (Downloaded on 13/12/2019 at 02:34:51 AM) (4 of 10) [CW-4299/2017] Singh. They claimed that the property is in their use and occupation as owner and not as licensee as claimed by the plaintiffs.

7. The defendant no.3, the respondent no.3 herein, also filed a written statement admitting the claim of the plaintiffs in its entirety. Later, he filed an application under Order I Rule 10 read with Section 151 CPC seeking transposition as plaintiff in the suit. The application was contested by the petitioners herein by filing a reply thereto. The application was allowed by the trial Court vide order dated 17.9.16 observing that on account of transposition of the defendant no.3 as plaintiff, the rights of the original plaintiffs, the respondents no.1 and 2 herein, are not likely to be adversely affected.

8. After transposition of the respondent no.3 as the plaintiff, the plaintiffs filed an application under Order VI Rule 17 CPC seeking amendment of the plaint so as to incorporate an alternative relief in terms that if the transfer of the disputed property in favour of the plaintiffs no.1 and 2 is not found proved, the suit may be decreed in favour of the plaintiff no.3 who is exclusive owner of the property "Mandir Palace". The alternative relief claimed by the plaintiffs by way of amendment reads as under:

"fodYi esa oknxzLr efUnj iSysl dh lEifr oknh la[;k 1 o 2 dh gksuk lkfcr ugha ekuk tkosa rks Hkh oknh la[;k 3 ds i{k esa Åij of.kZr vuqKk ij nh xbZ lEifr ftls okn i= ds pj.k la[;k 3 o layXu ekufp= esa nf'kZr efUnj iSysl dh lEifr tks izfroknh la[;k 1 o 2 rFkk muds ifjokj ds dCts esa gSa] o oknhx.k ds LokfeRo dh gSa] ftls okn ds layXu uD'ks esa ^^yky jax** ls cryk;k x;k gSa o vkus tkus ds jkLrs dks ^^ihys jax** ls cryk;k x;k gSa] ls izfroknh la[k 1 o 2 dks fof/kor o okLrfod :i ls csn[ky dj bl tk;nkn dk fjDr vkf/kiR; nqjLr gky esa oknhx.k dks fnyok;k tkosa ,oa mijksDr Bkaoksa dk [kkyh dCtk izkIr gksus rd tSj oklykr dh jkf'k :i;s 5]00]000@& izfrekg ls oknhx.k dks izfroknh la[;k 1 o 2 ls nkok nk;jh ls fnyok;s tkus dh fMØh lkfnj QjekbZ tkosaA " (Downloaded on 13/12/2019 at 02:34:51 AM)

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9. The application seeking amendment was contested by the petitioners by filing a reply thereto. The petitioners averred that the defendant no.3 was transposed as plaintiff no.3 by the Court observing that the interest of the defendant no.3 and the plaintiffs in the disputed property is common and not conflicting and therefore, on account of transposition as prayed being permitted, the nature of the suit will not change. The petitioners contended that after the transposition, the plaintiff no.3 has attempted to set up a new case by incorporating alternative relief claiming himself to be exclusive owner of the property, which cannot be permitted. The petitioners submitted that the defendant no.3 who has been transposed as plaintiff no.3 has admitted the claim of the plaintiffs regarding the transfer of his so called title interest, right and possession over the disputed property and thus, in absence of his any surviving interest in the property, he cannot be permitted to set up an independent case claiming himself to be owner of the property.

10. After due consideration of the rival submissions, the application preferred has been allowed by the trial Court observing that after transposition of the defendant no.3 as plaintiff, the consequential relief sought to be incorporated does not change the nature of the suit and the amendment sought for is not unnecessary for the decision of the suit. Hence, this petition.

11. Learned counsel appearing for the petitioners contended that the trial Court has committed serious error in allowing the application seeking leave to amend the plaint. Drawing the attention of the court to the written statement filed by the defendant no.3, learned counsel submitted that the claim of the original plaintiffs regarding the transfer of the right and interest of (Downloaded on 13/12/2019 at 02:34:51 AM) (6 of 10) [CW-4299/2017] the defendant no.3 in favour of the original plaintiffs was categorically admitted and thus, in absence of any surviving interest in the property, the defendant no.3 who is transposed as plaintiff with the consent of the original plaintiffs could not have been permitted to set up his own case and claim the decree of possession by incorporating an alternative relief, claiming himself to be exclusive owner of the property. Learned counsel submitted that the transposition as prayed for was permitted by the trial Court observing that the right and interest of the original plaintiffs and the defendant no.3 in the disputed property is common and not conflicting and therefore, by transposition of the defendant no.3 as plaintiff, the nature of the suit will not change but while allowing the amendment as prayed for, the categorical admission of the defendant no.3 in the written statement already filed admitting the claim of the plaintiffs in the disputed property has altogether been ignored by the trial Court. Learned counsel submitted that the defendant who has been transposed as the plaintiff cannot be permitted to set up his own case independent of the case set up by the original plaintiffs and thus, the order impugned passed by the trial Court apparently suffers from jurisdictional error. Learned counsel submitted that the defendant no.3 could not have been permitted to wriggle out of the admission made by him in the written statement already filed and claim exclusive ownership of the property by taking the pleas wholly inconsistent with the original plaint. In support of the contention, learned counsel relied upon the decision of the Supreme Court in Revajeetu Builders & Developers vs. Narayanswamy & Sons & Ors.: 2009 (2) WLC 636 (SC) and decisions of this court in Mohan Lilani vs. Smt. Pevi Bai & Ors.: (Downloaded on 13/12/2019 at 02:34:51 AM)

(7 of 10) [CW-4299/2017] 1994 (1) WLC 42 and Mst. Munavirunnisa Begum & Ors. vs. Mohd. Islam & Ors.: 2015 (3) WLC 1. Learned counsel submitted that the introduction of the alternative relief in the plaint on the basis of independent right of the transposed plaintiff, which changes the nature of the suit, is barred by Order II Rule 2 CPC as well. In support of the contention, learned counsel relied upon the decision of the Supreme Court in Van Vighag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) vs. Ramesh Chander & Ors.:

2011(1) WLC 269 (SC) and a decision of this Court in Anand Babu vs. Seema Devi : 1988 (1) RLR 993. Learned counsel submitted that taking of inconsistent plea by way of amendment thereby denying the other side the benefit of admission as contained in the earlier pleadings is not permissible under the law. In this regard, learned counsel relied upon a decision of the Supreme Court in Praful Manohar Rele vs. Smt. Krishnabai Narayan Ghosalkar & Ors.: 2014(1) WLC 276.

12. On the other hand, the counsel appearing for the respondents contended that on account of the amendment sought for being permitted, no prejudice is likely to be caused to the defendants inasmuch as they will be permitted to file written statement to the amended plaint. It is submitted that the scope of interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is limited and thus, unless it is shown that on account of the amendment being allowed, any prejudice is caused to the defendants, the order impugned passed by the trial Court cannot be interfered with. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in Raj Kumar Bhatia vs. Subhash Chander Bhatia: 2018 DNJ (SC) 1. Learned counsel submitted that (Downloaded on 13/12/2019 at 02:34:51 AM) (8 of 10) [CW-4299/2017] the alternative reliefs are allowed to be claimed in one litigation so that the necessity of another litigation may be obviated and thus, the trial Court has committed no error in allowing the amendment prayed for. In support of the contention, learned counsel relied upon decision of the Supreme Court in Firm Sriniwas Ram Kumar vs. Mahabir Prasad & Ors.:AIR 1951 SC 177 and a decision of this court in Uttam Chand vs. Mohandas: AIR 1964 (Raj) 50.

13. I have considered the rival submissions and perused the material on record.

14. Indisputably, to do complete justice between the parties, the Court can suo moto or on an application on behalf of any of the defendant, may transpose the defendant as plaintiff. But then, when the plaintiff and defendant are having conflicting interest, in other words, if the defendant praying for transposition as plaintiff is a contesting defendant, he cannot be added as co-plaintiff.

Admittedly, in the instant case, the defendant no.3 was impleaded as plaintiff inasmuch as, in the written statement filed, he had admitted the claim of the plaintiff and specifically averred that the suit deserves to be decreed as prayed for. Obviously, when defendant gets transposed as plaintiff, the written statement filed on his behalf would form part of the plaint.

15. A bare perusal of the written statement filed on behalf of the defendant no.3, who is later transposed as plaintiff, reveals that he has admitted the entire case set up by the original plaintiffs in terms that the disputed property which was owned by the defendant no.3 stands validly transferred in favour of the original plaintiffs and he has no surviving interest in the disputed property whereas, by way of amendment, the defendant no.3, a transposed plaintiff, is seeking decree in his favour within his own right (Downloaded on 13/12/2019 at 02:34:51 AM) (9 of 10) [CW-4299/2017] independently in the contingency when the case set out by the original plaintiffs regarding the transfer of right and interest in the property in their favour in the manner alleged is not found proved. In the considered opinion of this court, a defendant in the suit who has admitted the claim of the plaintiff and was transposed as plaintiff taking into consideration the admission made by him and the fact that he has no conflicting interest with the plaintiff, cannot be permitted to set up his own case and claim the relief independent of the reliefs claimed by the original plaintiffs in the suit and thus, the order impugned passed by the trial Court apparently suffers from jurisdictional error.

16. It cannot be disputed that if the case set out by the original plaintiffs regarding the transfer of right and interest in the property in their favour as set out in the plaint is not proved, the suit will fail and thus, apparently, if the claim of the plaintiff no.3 independent of the original plaintiffs permitted to be incorporated by way of amendment is allowed to stand, a serious prejudice will be caused to the petitioners herein inasmuch as, they will be compelled to defend the claim not set out in the plaint originally filed. In this view of the matter, the decision of the Supreme Court in Rajkumar Bhatia's case (supra) relied upon by the learned counsel appearing for the respondents does not help the respondents in any manner.

17. If the respondent no.3 has any right to claim the possession of the disputed property from the petitioners herein independent of the claim set out by the original plaintiffs, nothing prevented him from defending the suit or to file a suit within his own right. The present case being not the case of the original plaintiffs claiming the alternative reliefs, rather a transposed plaintiff setting (Downloaded on 13/12/2019 at 02:34:51 AM) (10 of 10) [CW-4299/2017] out his independent claim, the ratio of the decision of Supreme Court in Firm Sriniwas Ram Kumar's case (supra) and decision of this court in Uttam Chand's case (supra) do not apply to the facts of the present case.

18. In view of the discussion above, the writ petition deserves to be allowed and the order impugned passed by the trial Court deserves to be set aside.

19. Accordingly, the petition is allowed. The order impugned dated 4.3.17 passed by the Additional District Judge, Jaisalmer in Civil Misc. Case No.510/16 is set aside. The application seeking amendment of the plaint preferred on behalf of the respondents- plaintiff is dismissed. No order as to costs.

(SANGEET LODHA),J Aditya/ (Downloaded on 13/12/2019 at 02:34:51 AM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jodhpur