Gujarat High Court
Arjanbhai Lakhabhai Khanta & vs Surmabhai Somabhai Khanta Decd. Thro' ... on 3 February, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/14634/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14634 of 2012
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ARJANBHAI LAKHABHAI KHANTA & 1....Petitioner(s)
Versus
SURMABHAI SOMABHAI KHANTA DECD. THRO' HEIRS &
6....Respondent(s)
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Appearance:
(MR SURESHM SHAH), ADVOCATE for the Petitioner(s) No. 1 - 2
MR MEHUL S SHAH, ADVOCATE for the Petitioner(s) No. 1 - 2
MR SK BUKHARI, ADVOCATE for the Respondent(s) No. 1.1 - 1.9 , 2 - 3
NOTICE SERVED for the Respondent(s) No. 4 - 7
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 03/02/2016
ORAL ORDER
1. By way of present petition, the petitioners challenge order passed below application Exh.48 in Regular Civil Suit No.25 of 2009 passed by learned Principal Civil Judge, Santrampur, Dist: Panchmahal, whereby the learned trial Judge refused the application preferred by the petitioners under the provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908.
2. It is the case of the petitioners - original plaintiffs that land bearing revenue survey No.69/1 (Plot No.73) exclusively belongs to the plaintiffs and the defendants have no right, title and interest in the said land and the petitioners have prayed for declaration and perpetual injunction. In the plaint, the Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Feb 06 01:49:05 IST 2016 C/SCA/14634/2012 ORDER petitioners in addition to ownership right have also made averments that the petitioners are in possession of the said land since 1981 and they are enjoying possession of the said land openly and without interruption from the defendants since then and thus, also claim right over the said land by way of adverse possession.
3. Pending hearing of the suit, the petitioners - plaintiffs filed an application Exh.48, inter alia, prayed to amend the relief clause and has made a request to add following prayers.
(2.1) Be pleased to pass an order to make following amendment as Para-3(A) after Para-3 in the claim petition in the interest of justice.
"we, the plaintiffs have continuous and direct possession of the suit property publicly in the virtue of ownership and without any kind of obstacle from anyone as per the agreement dated 15/5/1981, in alternate, we the plaintiffs have become owner of the suit property in the virtue of adverse possession."
(2.2) It is requested to give permission to make the following amendment as Para-5(A)(A) after Para-5(A) of the claim petition.
"Hold that, in alternate, we the plaintiffs have become owner of suit property as per the agreement dated 15/5/1981 in the virtue of adverse possession."
4. Learned advocate Mr. Mehul S. Shah would contend that the petitioners - plaintiffs have already made necessary averments with regard to plea of adverse possession in the plaint itself and by virtue of proposed amendment, the Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Feb 06 01:49:05 IST 2016 C/SCA/14634/2012 ORDER petitioners - plaintiffs want to add two more relief and therefore, it would not change the basic structure of the plaint and it would not cause any prejudice to the defendants since the evidence has yet not commenced and more so, necessary averments with regard to plea of adverse possession has already been averred in the plaint itself. In nutshell, it is the case of the petitioners that they are not introducing any new case and therefore, the impugned order requires to be quashed and set aside.
5. Per contra, learned advocate Mr. M.R. Bukhari for learned advocate Mr. S.K. Bukhari while supporting the impugned order would contend that the proposed amendment is moved at belated stage and though the petitioners were well within the knowledge of such right/plea, the petitioners were required to move such application at the earlier stage of the hearing of the suit. In support of his submission, learned advocate for the respondents has pressed into service decisions in case of Ajendraprasadji N. Pandey and another Vs. Swami Keshavprakeshdasji N. and others reported in (2006) 12 SCC 1 and Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and others reported in 2013(2) GLH 201.
6. Having heard the submissions made at bar and considering the principles settled in the case laws cited at bar and considering the impugned order, it is evident that the petitioners have made necessary averments in the plaint with regard to plea of adverse possession and have also made necessary averments with regard to one Panchkarar executed in the year 1981. It is stated at bar that the evidence has yet Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Feb 06 01:49:05 IST 2016 C/SCA/14634/2012 ORDER not commenced and thus, if the proposed amendment is allowed at this stage, no prejudice will cause to any of the parties to the suit and further, the addition of relief in prayer clause would not change the basic structure of the suit and therefore, the learned trial Judge has committed error in disallowing the amendment application on the ground that the petitioners have raised inconsistent plea. In case of Purani Dhirajlal Amritlal Vs. Mehta Shankleshwar Aditram reported in 1976 GLR 67, this Court has taken a view that inconsistent pleadings can be pleaded in the alternative is a well established rule of pleading, but the proof of a plea depends on the provisions of substantive law and therefore, it is permissible to plead inconsistent, such as right of ownership based on Panchkarar on one hand and right of possession on the basis of plea on adverse possession. But the petitioners when alternatively raise pleas of ownership on one hand and the adverse possession on the other hand in the same suit, in that eventuality, the petitioners are also required to make election to prove one of two alternative pleas made by them when evidence is to be led or after evidence is over. In light of this position, when inconsistent pleas are permissible, the learned Judge ought to have accepted such application as such inconsistent pleas are based on necessary averments already made in the plaint itself and therefore, impugned order requires to be quashed and set aside.
7. In the result, the petition is allowed and impugned order passed below application Exh.48 in Regular Civil Suit No.25 of 2009 passed by learned Principal Civil Judge, Santrampur, Dist: Panchmahal is hereby quashed and set aside with a direction to the petitioners to amend the plaint as per Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Feb 06 01:49:05 IST 2016 C/SCA/14634/2012 ORDER application below Exh.48 within two weeks from today. It is also made clear that the petitioners shall make necessary declaration before the trial Court as to which specific plea, the petitioners are electing to prove before the trial Court either before the evidence is led or evidence is over.
(S.H.VORA, J.) shekhar Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Feb 06 01:49:05 IST 2016