Chattisgarh High Court
Pal Sai vs (A) Girvar on 23 February, 2026
1
2026:CGHC:9411
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 204 of 2014
Judgment reserved on 27/11/2025
Judgment delivered on 23/02/2026
1 - Pal Sai S/o Gyan Sai Aged About 69 Years R/o Kerju, P.S. And Tah.
Sitapur, Distt. Surguja C.G., Chhattisgarh
2A - Gunjmati W/o Late Anil Singh Aged About 58 Years R/o Baneya, P.S.
And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),
Chhattisgarh
2A.a - Jaspal Singh S/o Late Anil Singh Aged About 35 Years R/o
Baneya, P.S. And Tah. Sitapur, Distt. Surguja C.G., District : Surguja
(Ambikapur), Chhattisgarh
2A.b - Ganesh S/o Late Anil Singh Aged About 30 Years R/o Baneya, P.S.
And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),
Chhattisgarh
2B - Chhabil Sai (Dead Through Lrs) S/o As Per Honble Court Order
Dated 30-01-2025
VED
PRAKASH
DEWANGAN
2B.a- Murchhand Singh S/o Late Chhabil Sai Aged About 46 Years R/o
Occupation - Agriculturist R/o Village Kerju, Tahsil Sitapur, District
Digitally signed
by VED
PRAKASH
DEWANGAN
Date: 2026.02.23
17:50:09 +0530
Surguja (C.G.)
2
2B.b- Deelip Kumar S/o Late Chhabil Sai Aged About 29 Years R/o
Occupation - Agriculturist R/o Village Kerju, Tahsil Sitapur, District
Surguja (C.G.)
2B.c- Dulari Bai W/o Late chhabil Sai, aged about 65 years, R/o Village
Kerju, Tahsil Sitapur, District Surguja (C.G.)
2B.d- Chintamani, W/o Prem Singh, D/o Late Chhabil Sai, aged about 34
years, R/o Village Jamnimuda, Raja Ama, Tahsil Pathalgon, District
Jashpur (C.G.)
2B.e- Geeta, W/o Dev Kumar, D/o Late Chhabil Sai, aged about 30
years, R/o Village Sokhapara, Kodekela, Gharjiabathan, Tahsil
Pathalgon, District Jashpur (C.G.)
2C - Bad Sai S/o Late Prasann Ram Aged About 55 Years R/o
Faradbahar, P.S. And Tah. Jashpur, Distt. Jashpur C.G., District : Jashpur,
Chhattisgarh
2D - Chamar Sai S/o Late Ram Sai Aged About 57 Years R/o Kerju, P.S.
And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),
Chhattisgarh
2E- Neelamber S/o Late Ram Sai Aged About 55 Years R/o Kerju, P.S.
And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),
Chhattisgarh
... Appellants
versus
1A - Girvar S/o Hawal Sai Aged About 61 Years R/o Kerju, P.S. And Tah.
Sitapur, Distt. Surguja C.G., Chhattisgarh
1B- Hirdan S/o Hawal Sai Aged About 52 Years R/o Kerju, P.S. And Tah.
3
Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur), Chhattisgarh
2 - State Of C.G. Through- Collector, Ambikapur, Distt. Surguja C.G.,
District : Surguja (Ambikapur), Chhattisgarh
... Respondents
(Cause title taken from Case Information System)
For Appellants : Mr. Shahid Ahmed Ansari, Advocate
For Respondents No. 1A & 1B : Mr. Ashok Kumar Shukla and Mr.
Vikas Dhritlahare, Advocates
For Respondent No.2/State : Mr. Kalpesh Ruparel, Panel Lawyer
Hon'ble Shri Ravindra Kumar Agrawal, Judge
C.A.V. Judgment
1. This second appeal under Section 100 of the Code of Civil
Procedure, 1908, has been preferred by the appellants/defendants
calling in question the legality, validity and propriety of the
judgment and decree dated 12.05.2014 passed by the learned 2nd
Additional District Judge, Ambikapur, District Surguja (C.G.) in Civil
Appeal No.50-A/2012, whereby the appeal preferred by the
respondents/plaintiffs has been allowed and the judgment and
decree dated 19.03.2012 passed by the learned Civil Judge Class-
II, Sitapur, District Surguja in Civil Suit No.31-A/1989 (earlier Civil
Suit No.12A/2007) dismissing the suit as barred by limitation has
been set aside, and the respondents/plaintiffs have been held
entitled to recovery of possession of the suit land as described in
4
Schedule-B appended to the impugned judgment and decree. The
appellants, being aggrieved by the reversal of the trial Court's
findings on limitation and possession, have raised various
substantial questions of law relating to limitation, amendment of
pleadings under Order VI Rule 17 CPC, accrual of cause of action,
and the legality of the findings recorded by the first appellate Court.
2. The second appeal is admitted on 07.12.2015 on the following
substantial question of law:-
"Whether the learned lower appellate Court
was justified in reversing judgment and
decree of the trial Court and grant decree in
favour of plaintiff by holding that the suit was
within limitation?"
3. The facts of the case as emerges from the pleadings of the case
are that, the dispute in the present second appeal pertains to
agricultural land admeasuring 9.75 acres situated in various
Khasra numbers at Village Kerju, Tahsil Sitapur, District Surguja
(C.G.) (hereinafter referred to as "the suit land"). The parties to the
lis are closely related and are descendants of two real brothers,
namely, Jagan Sai and Lagan Sai. The respondents/plaintiffs are
the sons and legal representatives of Jagan Sai, whereas the
appellants/defendants are the sons and legal representatives of
Lagan Sai.
*******It is the case of the appellants/defendants that Jagan Sai
5
died about 36 years prior to the institution of the suit and Lagan Sai
died about 12 years prior to the Surguja Settlement operations.
According to the plaintiffs, the suit land originally belonged to their
predecessor-in-interest Jagan Sai and they are the title holders
thereof. On the contrary, the case of the defendants is that their
names were mutated in the revenue records in the year 1954-55
and they have been in continuous, open and peaceful possession
of the suit land since then.
*******The respondents/plaintiffs instituted a civil suit on 22.06.1989
before the Court of Civil Judge Class-II, Ambikapur (now Sitapur),
being Civil Suit No.31-A/1989, seeking declaration of title over the
suit land and permanent injunction against the defendants.
Notably, in the original plaint, no specific relief of recovery of
possession was claimed, though it was alleged that the defendants
were interfering with the land.
*******The appellants/defendants filed their written statement
denying the plaint allegations in toto and contended that the suit
was barred by limitation. It was specifically pleaded that the
defendants were in possession since 1954-55 and their names had
been duly recorded in the revenue records. It was further
contended that the plaintiffs had no subsisting right, title or interest
over the suit land and the suit was liable to be dismissed.
*******On the basis of pleadings, the learned trial Court framed four
issues relating to title, possession, limitation and relief. By
judgment and decree dated 12.02.1996, the trial Court declared
6
the title in favour of the plaintiffs but dismissed the suit for
permanent injunction on the ground that the defendants were
found to be in possession since 1954-55 and the plaintiffs had not
claimed the relief of recovery of possession. Thus, though
declaration was granted, consequential relief was refused.
*******Aggrieved by the partial dismissal of the suit, the plaintiffs
preferred Civil Appeal No.27-A/2003 before the learned District
Judge, Ambikapur. During the pendency of the said appeal, the
plaintiffs moved an application under Order VI Rule 17 CPC on
10.11.1998 seeking amendment of the plaint for incorporating the
relief of recovery of possession.
*******The defendants opposed the said amendment by filing a
detailed reply contending that the amendment was highly belated,
barred by limitation and would change the nature of the suit. It was
specifically urged that since the defendants were in possession
since 1954-55, any claim for recovery of possession was
hopelessly time barred and could not be introduced by way of
amendment.
*******The first appellate Court, by judgment and decree dated
21.07.2003, affirmed the findings of the trial Court on Issues No.1
and 2 relating to title, but set aside the findings on Issues No.3 and
4 relating to limitation and possession. The matter was remanded
to the trial Court with direction to decide the application under
Order VI Rule 17 CPC and thereafter to record fresh findings on
the issues concerning limitation and recovery of possession.
7
*******After remand, the trial Court again registered the matter as
Civil Suit No.31-A/1989 and by judgment dated 02.09.2003
dismissed the suit holding it to be barred by limitation and also
rejected the application under Order VI Rule 17 CPC.
*******The plaintiffs again preferred Civil Appeal No.25-A/2003
before the 1st Additional District Judge, Ambikapur. By judgment
and decree dated 24.01.2005, the appellate Court set aside the
judgment dated 02.09.2003 and remanded the matter to the trial
Court once again with direction to afford opportunity to the parties
to adduce evidence on the amendment application and to decide
the same in accordance with law.
*******Pursuant to the second remand, the learned Civil Judge
Class-II afforded opportunity to both sides. The defendants
produced revenue records and other documentary evidence in
support of their possession. However, the plaintiffs failed to
produce fresh evidence as directed. The trial Court allowed the
amendment application under Order VI Rule 17 CPC but ultimately,
by judgment and decree dated 19.03.2012, dismissed the suit
holding that the claim for recovery of possession was barred by
limitation.
*******Against the said judgment and decree dated 19.03.2012, the
plaintiffs preferred Civil Appeal No.50-A/2012 before the learned
2nd Additional District Judge, Ambikapur. By the impugned
judgment and decree dated 12.05.2014, the appellate Court
allowed the appeal, reversed the findings of the trial Court on
8
limitation, and decreed the suit directing recovery of possession of
the suit land as described in Schedule-B of the judgment.
*******The appellants/defendants, being aggrieved by the reversal
of well-reasoned findings of the trial Court, particularly on the
question of limitation, accrual of cause of action, and permissibility
of amendment introducing a time-barred relief, have preferred the
present second appeal under Section 100 CPC raising substantial
questions of law relating to limitation, amendment of pleadings,
accrual of cause of action, evidentiary appreciation, and alleged
perversity in the findings of the first appellate Court.
4. Mr. Shahid Ahmed Ansari, learned counsel for the
appellants/defendants would submit that, the judgment and decree
dated 12.05.2014 passed by the learned 2nd Additional District
Judge, Ambikapur in Civil Appeal No.50-A/2012 is contrary to the
settled principles of law governing limitation, amendment of
pleadings and recovery of possession. The first appellate Court
has reversed the well-reasoned findings of the trial Court without
proper appreciation of pleadings, documentary evidence and
settled legal position.
*******It is contended that admittedly the names of the
predecessors of the appellants, namely Gyan Sai and Prasann Sai,
were mutated in the revenue records in the year 1954-55. The
defendants have been in open, peaceful and continuous
possession of the suit land since then. The plaintiffs instituted the
suit in the year 1989, i.e., after more than three decades from the
9
date when the alleged adverse entry came into existence.
*******Under Article 65 of the Limitation Act, 1963, a suit for
possession based on title is required to be filed within 12 years
from the date when possession becomes adverse to the plaintiff. In
the present case, the cause of action, if any, arose in the year
1954-55 when the names of the defendants' predecessors were
recorded and they entered into possession. Therefore, the suit filed
in 1989 is ex facie barred by limitation.
*******The learned trial Court rightly recorded a categorical finding
that the claim for recovery of possession is time barred. The first
appellate Court has erred in reversing this finding without assigning
cogent reasons.
*******It is further submitted that in the original plaint, the plaintiffs
had not claimed the relief of recovery of possession. The trial Court
in its first judgment dated 12.02.1996 specifically held that the
defendants were in possession since 1954-55 and since no relief
of possession was claimed, the suit for injunction was liable to be
dismissed.
*******Only during the pendency of the appeal, by application dated
10.11.1998 under Order VI Rule 17 CPC, the plaintiffs sought to
introduce the relief of recovery of possession. By that time, even
assuming the plaintiffs had any cause of action, the claim was
already barred by limitation.
*******It is well settled that an amendment introducing a time-
10
barred relief cannot ordinarily be permitted, and even if permitted,
such amendment does not relate back so as to defeat the law of
limitation. The first appellate Court has failed to consider that
valuable rights had accrued in favour of the defendants by lapse of
time, which could not be defeated by allowing a belated
amendment.
*******Learned counsel would submit that the original suit was one
for declaration and permanent injunction. By introducing the relief
of recovery of possession, the nature of the suit was fundamentally
altered from a suit for prohibitory relief to a suit for ejectment.
*******Such amendment, particularly after recording findings on
possession and after lapse of considerable time, seriously
prejudiced the defendants and caused irreparable injury. The first
appellate Court failed to appreciate that amendment cannot be
allowed to fill lacunae in the plaintiff's case or to overcome an
adverse finding.
*******It is contended that even assuming the plaintiffs have some
title, it is an admitted and proved fact that they were not in physical
possession of the suit land for decades. A decree for recovery of
possession after such inordinate delay, in the face of long and
settled possession of the defendants, is unsustainable in law.
*******The first appellate Court has ignored the principle that long,
continuous and hostile possession ripens into title by adverse
possession when not challenged within the statutory period.
11
*******The learned counsel for the appellants specifically draws
attention to the statement of plaintiffs' own witness Asaru. In
paragraph 4 of his deposition, he clearly stated:
"जगनसाय ने लगभग पौने दस एकड़ की जमीन प्रेमवश इन
लोगों को (पालसाय वगैरह) को कमाने खाने के लिए दिया था।"
*******Further, in paragraph 11, he admitted:
"उक्त जमीन को जगनसाय ने सर्वे सेटलमेंट के 10-12 साल
बाद पालसाय वगैरह को दिया था वे लोग उसी समय से कमाते-
खाते आ रहे हैं।"
*******These admissions clearly establish that the defendants and
their predecessors were in possession for several decades. The
first appellate Court has completely ignored this crucial admission,
thereby rendering its findings perverse.
*******It is submitted that the cause of action, if any, first arose
when the revenue entries were made in 1954-55 and when the
defendants entered into possession. The plaintiffs cannot contend
that cause of action arose on the date of amendment. The
limitation is to be computed from the date of dispossession or
adverse possession, not from the date when the relief is
incorporated in the plaint.
*******The learned counsel submits that the first appellate Court
has misread evidence, ignored material admissions, and failed to
properly consider the law of limitation and amendment. The
12
impugned judgment suffers from perversity inasmuch as it
overlooks admitted long possession of the defendants and grants
relief of possession after more than 30 years.
*******Such findings, being contrary to record and settled legal
principles, give rise to substantial questions of law within the
meaning of Section 100 CPC.
*******Lastly, it is submitted that the appellants and their
predecessors have been cultivating and enjoying the suit land
openly for decades. The plaintiffs remained silent for an
unreasonable period and woke up only after lapse of statutory
limitation. Equity and justice are in favour of protecting long-settled
possession rather than unsettling it on technical grounds.
*******In view of the aforesaid submissions, learned counsel for the
appellants prays that the impugned judgment and decree dated
12.05.2014 passed by the learned 2nd Additional District Judge,
Ambikapur in Civil Appeal No.50-A/2012 be set aside and the
judgment and decree dated 19.03.2012 passed by the learned trial
Court dismissing the suit as barred by limitation be restored.
5. Mr. Ashok Kumar Shukla, learned counsel appearing for
respondents No.1A and 1B/plaintiffs would respectfully submit that,
the title of the plaintiffs over the suit land stands conclusively
established. Both the trial Court in its earlier judgment dated
12.02.1996 and the first appellate Court in judgment dated
21.07.2003 categorically recorded findings in favour of the plaintiffs
13
on Issues No.1 and 2 relating to title. These findings were never
set aside on merits and have attained finality. The defendants have
failed to produce any document of title in their favour. Mere
mutation in revenue records does not confer ownership. It is settled
law that revenue entries are only fiscal in nature and do not create
or extinguish title. Thus, the plaintiffs are the recorded and
declared title holders of the suit land.
*******It is submitted that the present suit is essentially one based
on title. Under Article 65 of the Limitation Act, 1963, limitation for
recovery of possession based on title is 12 years from the date
when possession of the defendant becomes adverse to the
plaintiff. The burden to prove adverse possession lies heavily on
the defendants. In the present case, the defendants have neither
specifically pleaded the date from which their possession became
hostile nor proved the necessary ingredients of adverse
possession, namely: actual possession, open and hostile
assertion, denial of title of true owner, continuous and
uninterrupted possession for 12 years. In absence of clear
pleading and strict proof, adverse possession cannot be presumed.
*******The appellants heavily rely upon mutation entries of 1954-
55. It is respectfully submitted that mutation entries do not amount
to declaration of hostile title. Mutation is effected for revenue
purposes and does not extinguish the title of the true owner. The
mere recording of name in revenue records cannot be equated
with open and hostile assertion of ownership against the true title
14
holder. The defendants have not proved that the plaintiffs had
knowledge of any hostile claim in 1954-55. Therefore, limitation
cannot be computed mechanically from the date of mutation.
*******Learned counsel draws attention to the statement of witness
Asaru, relied upon by the appellants themselves, wherein it has
been stated that: "जगनसाय ने लगभग पौने दस एकड़ की जमीन प्रेमवश इन
लोगों को कमाने खाने के लिए दिया था।" This statement clearly indicates
that the possession of the defendants was permissive in nature. If
land was given "कमाने खाने के लिए", it establishes that possession
originated with the consent of the true owner. Permissive
possession can never become adverse unless there is a clear and
unequivocal repudiation of the true owner's title, which must be
communicated and proved. No such evidence exists on record.
Thus, the defendants' own reliance on the above statement
demolishes their plea of adverse possession.
*******It is submitted that the amendment sought by the plaintiffs
was merely to add the consequential relief of recovery of
possession. The foundational facts relating to title and possession
were already pleaded in the original plaint. It is well settled that
when a plaintiff seeks declaration of title and it is found that he is
not in possession, the Court may permit amendment to incorporate
relief of possession to avoid multiplicity of proceedings. The
amendment did not introduce a new cause of action. It was based
on the same set of facts. Therefore, it was rightly allowed.
15
*******It is submitted that once amendment is allowed, it ordinarily
relates back to the date of institution of the suit unless specifically
directed otherwise. Since the suit was filed in 1989 and the
defendants failed to prove that their possession became adverse
12 years prior to the institution of the suit, the plea of limitation is
unsustainable.
*******The first appellate Court is the final Court of fact. It has re-
appreciated the entire oral and documentary evidence and has
recorded findings in favour of the plaintiffs. In a second appeal
under Section 100 CPC, interference is permissible only on
substantial question of law. Re-appreciation of evidence or
substitution of factual findings is impermissible unless the findings
are perverse. In the present case, the findings of the first appellate
Court are based on evidence and correct application of law. No
perversity has been demonstrated.
*******The defendants cannot claim that any vested right accrued in
their favour merely due to lapse of time. In absence of proof of
hostile possession for the statutory period, no right by adverse
possession can arise. Equity follows the law. When title is
established in favour of plaintiffs and adverse possession is not
proved, recovery of possession must follow.
*******The learned first appellate Court has correctly appreciated,
the settled position of law regarding mutation entries, the burden of
proof of adverse possession, the permissive nature of defendants'
16
possession, and the maintainability of amendment. The decree
directing recovery of possession is therefore just, legal and in
consonance with settled principles.
*******In view of the aforesaid submissions, learned counsel for
respondents No.1A and 1B respectfully prays that the present
second appeal being devoid of merit and not involving any
substantial question of law, deserves to be dismissed with costs,
and the judgment and decree dated 12.05.2014 passed by the
learned 2nd Additional District Judge, Ambikapur be affirmed.
6. Mr. Kalpesh Ruparel, learned Panel Lawyer appearing for
respondent No.2/State submits that, the State has been arrayed as
a party through the Collector, Surguja, in view of the fact that the
dispute pertains to agricultural land recorded in revenue records.
The State does not claim any independent right, title or interest
over the suit land and has been impleaded in a formal capacity.
The dispute is essentially inter se between private parties
regarding title and possession over the suit property. Therefore, the
State confines its submissions to the extent of legality of revenue
entries and procedural compliance.
7. I have heard learned counsel for the parties at length and perused
the entire record with utmost circumspection.
8. The second appeal was admitted on the substantial question of law
as to whether the learned first appellate Court was justified in
17
reversing the judgment and decree of the trial Court and in holding
that the suit was within limitation. The controversy, therefore,
essentially revolves around the applicability of Article 65 of the
Limitation Act, 1963, the nature of possession of the defendants,
and the legal effect of amendment of pleadings under Order VI
Rule 17 CPC.
9. The learned trial court, while deciding the issue No. 3, which was
with respect to limitation to file this suit, has considered in para 7 of
its judgment that, at the time of survey settlement, the suit property
was in ownership and possession of the ancestors of the plaintiff
and defendant, namely Jagan and Lagan, and the father of the
defendant No. 1- Gyan Sai, Prasanna Sai, Ram Sai and Baiga
were minors at the time of survey settlement. Therefore, the land
was recorded in the name of Jagan, and in the record of right of
1954-55, the name of defendant No. 1- Gyan Sai, Prasanna Sai,
Ram Sai, and Baiga was recorded in the year 1954-55, which was
well within the knowledge of the father of the plaintiff, Jagan Sai,
and therefore, the cause of action first arose at the time when the
name of Gyan Sai and his brothers were recorded in the revenue
record, and since the cause of action was arose in the year 1954-
55, the plaintiffs made prayer for possession by way of amendment
incorporated on 02.02.2012, which is barred by limitation as
provided under Article 65 of the Limitation Act, 1963.
10. It is not in dispute that the relief of possession was amended in the
relief column of the plaint vide order dated 26.11.2011. It transpires
18
from the record that the application for amendment was filed on
10.11.1998, which was allowed on 26.11.2011, and amendment
was incorporated. From perusal of the order dated 26.11.2011, it
transpires that at the time of hearing of the application of Order VI
Rule 17 CPC, the defendants have not raised any objection in that
application for amendment in the plaint and the same was allowed
on 26.11.2011. Once no objection have been raised by the
defendants and the application for amendment was allowed, the
said amendment could relates back from the date of institution of
the suit and the doctrine of relation back came into play.
11. In the case of Prithi Pal Singh and another v. Amrik Singh and
others, (2013) 9 SCC 576, the Hon'ble Supreme Court has held in
paragraphs 9 and 11 that:-
"9. After remand the learned Single Judge
reconsidered the second appeal and dismissed
the same. The learned Single Judge extensively
dealt with the question whether the amendment
made in the plaint would relate back to the date of
institution of the suit or the same will be treated as
effective from the date of this Court's order and
held: [Amrik Singh case, RCR (Civil) pp. 506-09,
paras 8-12]
"8. The admitted facts now stand that the
plaintiff and vendor are the co-sharers. The
19
fate of the present appeal hinges upon the
question "whether the amendment allowed
by the Apex Court vide its judgment dated
10-11-1994 will operate from the date of the
order or is deemed to have been
incorporated as a part of the plaint from the
date of the institution of the suit?" If the
amendment is considered to be part of the
plaint from the date of institution of the suit,
the plaintiff is bound to succeed, otherwise
the suit shall fail if the amendment is found
to become operative from the date of the
order of the Apex Court allowing
amendment. It is settled principle of law that
at that time of consideration of the plea of
amendment, the Court is not required to go
into the question of merits of the
amendment sought. A party seeking the
amendment may ultimately succeed or fail
on the basis of the amendment is not the
relevant consideration at the time the plea
of amendment is to be considered. Only
consideration at the time is whether such
an amendment is necessary, relevant and
relate to the controversy involved in the lis.
The Hon'ble Supreme Court by allowing the
20
amendment of the plaint vide its order
dated 10-11-1994 observed that the
amendment should have been allowed, on
the basis of the admitted facts, Whether the
suit is barred by limitation or is within
limitation, all depends upon the effective
date of amendment. Mr Goel, the learned
counsel for the appellants has referred to
the judgment passed in Tarlok Singh v.
Vijay Kumar Sabharwal. In this case, the
parties had entered into an agreement to
sell. A suit for perpetual injunction was
instituted on 23-12-1987. During the
pendency of the suit, an application under
Order 6 Rule 17 CPC came to be filed on
17-7-1989 for converting the suit for
injunction into the one for specific
performance of agreement dated 18-8-
1984. The amendment was allowed on 25-
8-1989. A plea was raised that the suit for
specific performance is barred by limitation.
This plea was considered by the Apex
Court wherein following observations have
been made: (SCC pp. 368-69, para 6)
21
6. Shri Prem Malhotra, the learned
counsel for the respondent. contended
that since the respondent had refused
performance the suit must be deemed to
have been filed on 23-12-1987 and,
therefore, when the amendment was
allowed, it would relate back to the date
of filing the suit which was filed within
three years from the date of the refusal.
Accordingly, the suit is not barred by
limitation. Shri U.R Lalit, the learned
Senior Counsel for the appellant,
contended that in view of the liberty
given by the High Court the appellant is
entitled to raise the plea of limitation.
The suit filed after expiry of 3 years from
1986 is barred by limitation. The
question is: as to when the limitation
began to run? In view of the admitted
position that the contract was to be
performed within 15 days after the
injunction was vacated, the limitation
began to run on 6-4-1986. In view of the
position that the suit for perpetual
injunction was converted into one for
specific performance by order dated 25-
22
8-1989, the suit must be deemed to
have been instituted on 25-8-1989 and
the suit was clearly barred by limitation.
We find force in the stand of the
appellant. We think that parties had, by
agreement, determined the date for
performance of the contract. Thereby
limitation began to run from 6-4-1986.
Suit merely for injunction laid on 23-12-
1987 would not be of any avail nor the
limitation began to run from that date.
Suit for d perpetual injunction is different
from suit for specific performance. The
suit for specific performance in fact was
claimed by way of amendment
application filed under Order 6 Rule 17
CPC on 12-9-1979. It will operate only
on the application being ordered. Since
the amendment was ordered on 25-8-
1989 the crucial date would be the date
on which the amendment was ordered
by which e date, admittedly, the suit is
barred by limitation. The courts below,
therefore, were not right in decreeing the
suit."
23
9. In Sampath Kumar v. Ayyakannu, (2002)
7 SCC 559 initially, a suit for prohibitory
injunction was filed in the year 1988
claiming possession of the suit property.
Later in the year 1989, an application under
Order 6 Rule 17 CPC was made for
conversion of the suit into one for
declaration of title of the suit property and
consequential relief of delivery of
possession alleging that during the
pendency of the suit, defendant
dispossessed the plaintiff in January 1989.
The amendment was refused. However, in
appeal before the Hon'ble Apex Court, the
conditional amendment was allowed. The
Hon'ble Apex Court observed as under.
(SCC pp. 563-64, paras 11 & 13)
11. In the present case the amendment
is being sought for almost 11 years after
the date of the institution of the suit. The
plaintiff is not debarred from instituting a
new suit seeking relief of declaration of
title and recovery of possession on the
same basic facts as are pleaded in the
plaint seeking relief of issuance of
24
permanent prohibitory injunction and
which is pending. In order to avoid
multiplicity of suits it would be a sound
exercise of discretion to permit the relief
of declaration of title and recovery of
possession being sought for in the
pending suit. The plaintiff has alleged
the cause of action for the reliefs now
sought to be added as having arisen to
him during the pendency of the suit. The
merits of the averments sought to be
incorporated by way of amendment are
not to be judged at the stage of allowing
the prayer for amendment. However, the
defendant is right in submitting that if he
has already perfected his title by way of
adverse possession then the right so
accrued should not be allowed to be
defeated by permitting amendment and
seeking a new relief which would relate
back to the date of the suit and thereby
depriving the defendant of the
advantage accrued to him by lapse of
time, by excluding a period of about 11
years in calculating the period of
prescriptive title claimed to have been
25
earned by the defendant. The interest of
the defendant can be protected by
directing that so far as the reliefs of
declaration of title and recovery of
possession, now sought for, are
concerned the prayer in that regard shall
be deemed to have been made on the
date on which the application for
amendment has been filed.
***
13.... The prayer for declaration of title and recovery of possession shall be deemed to have been made on the date on which the application for amendment was filed.
10. From the ratio of the aforesaid judgments, following points emerge:
(a) merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment;
(b) the dominant purpose of the amendment is to minimise the litigation; 26
(c) the amendment once allowed and incorporated relates back to the date of the initial institution of the suit;
(d) the Court, however, in appropriate case may restrict the application of doctrine of relation back and permit the application of the amendment from the date the amendment is allowed.
11. This principle has been enunciated by the Hon'ble Apex Court in Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561 wherein the Court observed: (SCC P.566, para 10)
10.... On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the court excludes the applicability of the doctrine in a given case, the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition"
27
12. Mr C.B. Goel, learned counsel has strenuously argued that the a amendment in the present case should be treated to have effected only from 10-11-1994 and the suit for pre-emption is deemed to have been instituted on the said date on the ground of the plaintiff being co-sharer. His precise contention is that the suit for pre- emption filed in the year 1994 under clause 'Fourthly' Section 15(1)(b) is barred by time having been filed beyond one year from the date of the sale in question. To appreciate this contention, the sole question is whether a new relief has been introduced way of amendment. In Tarlok Singh, initially, the suit was for permanent prohibitory injunction. However, by way of amendment, a new relief of specific performance was introduced which was held to be barred by time as the cause of action for the relief of specific performance had accrued to the plaintiff in the said case from the c date of the execution of the agreement to sell dated 21-12-1984. Relief of specific performance was introduced in the year 1989 which was admittedly beyond three years from the 28 date cause of action accrued. I have already extracted the relevant observations of the Hon'ble Supreme Court in regard to the amendment. Applying the test to the fact of the present case, the plea of Mr Goel is not sustainable. In the instant case, it was a suit for pre-emption from the initial day. Initially, the ground for seeking relief was that the plaintiff is the brother of the defendant vendor This was one of the grounds available under law by virtue of clause Secondly of Section 15(1)(a) of the Act. This provision has, however, come to be struck down by the Supreme Court in Atam Parkash. The plaintiff by asking for amendment sought to introduce an additional ground on the plea that besides being the brother, he is also a co-sharer in the suit land. As observed by the Hon'ble Supreme Court, and is evident from the judgment impugned as also the report of the trial court dated 7-3-2006, there is sufficient material/evidence already on record prior to the introduction of the amendment to establish that the plaintiff is the co-sharer with the defendant vendor. 29 Through the amendment only, a new ground has been incorporated and not the new relief. Since the suit seeking the relief of pre-emption was instituted within the time, by introduction of a new ground to support the relief, the suit cannot become time-barred. In the present case, the doctrine of relation back of the amendment has to apply as no new or fresh relief has been incorporated. Apart from above, there is another reason to decline the prayer of the appellants. It is settled law as is evident from the ratio of the judgment in Siddalingammas, that the court in appropriate cases while allowing the amendment, may restrict the application of doctrine of relation back and permit the amendment from the date of the amendment. In the present case, the order of the Apex Court dated 10-11-1994 is clear and unambiguous in its terms. No such restriction has been imposed. To the contrary, the amendment rejected by this Court has been allowed primarily on the ground that the amendment is based upon admitted facts on record. I am of the 30 considered view that the intention of the Apex Court in allowing the amendment was/is to apply the amendment without excluding the doctrine of relation back which normally and generally governs the amendment of pleadings." (emphasis supplied)
11. In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time."
*******The learned First Appellate Court has considered the starting point of time of the cause of action. The learned First Appellate Court has considered that the trial Court has held that, the plaintiff was the title holder of the suit property, which was affirmed by the learned Appellate Court vide its judgment dated 21.07.2003, passed in Civil Appeal No. 27-A/2003 and he stated that the 31 property of schedule-B admeasuring 9.75 acres was given to the defendants to earn their livelihood, who have filed an application before the Tahsildar, Sitapur for partition of the said property in the year 1986 and then the plaintiff had filed the suit in the year 1986, when they came to know about the dispute, and thus the cause of action was first arose in the year 1986. The suit filed by the plaintiff was dismissed by the learned trial Court for the reason that he has not claimed for possession of 9.75 acres of land and during pendency of the first appeal, the plaintiffs had filed an application under Order VI Rule 17 CPC for which the matter was remitted back by the learned Appellate Court and the learned trial Court has allowed the application for amendment and then the amendment was incorporated in the plaint, therefore, the cause of action arose in the year 1986 and within 12 years, the suit for possession was filed by the plaintiffs. It has also been observed that the defendants have not claimed their title by adverse possession and have not filed any counter suit, therefore, the plaintiffs cannot be non-suited. The learned First Appellate Court has considered that the cause of action was arose in the year 1986 and the suit is filed well within its limitation period and has passed a decree in favour of the plaintiffs.
12. At the outset, it is well settled that in a second appeal under Section 100 CPC, interference by the High Court is confined strictly to substantial questions of law. The first appellate Court is the final Court of fact, and its findings cannot be disturbed unless shown to be perverse, based on no evidence, or contrary to settled legal 32 principles. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722. the Hon'ble Supreme Court held that the High Court cannot interfere with concurrent findings of fact unless such findings are perverse or based on misreading of evidence. In the present case, the first appellate Court has reappreciated the evidence and recorded a reasoned finding that the suit is within limitation and that the plaintiffs are entitled to recovery of possession. The appellants have failed to demonstrate any perversity or legal infirmity in such findings.
13. The principal defence of long possession since 1954-55 and reliance on mutation entries does not advance the appellants' case. The evidence, including the testimony relied upon by them, indicates that the initial possession was permissive in nature. Mutation entries are fiscal in character and do not confer or extinguish title, as held in Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186. In any event, the appeal does not substantively press a claim of adverse possession, and there is no material demonstrating hostile assertion of title so as to attract limitation under Article 65 of the Limitation Act. The first appellate Court has rightly concluded that the defendants failed to establish facts necessary to non-suit the plaintiffs on limitation.
14. As regards the amendment incorporating the relief of recovery of possession, the original suit was for declaration of title and 33 permanent injunction. Upon a finding that the plaintiffs were not in possession, the amendment merely sought consequential relief flowing from the same cause of action and foundational pleadings. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559 the Supreme Court held that an amendment adding relief of possession in a suit for declaration may be permitted even if limitation has expired, provided it is based on the same cause of action and avoids multiplicity of proceedings. Likewise, in Baldev Singh v. Manohar Singh, (2006) 6 SCC 498 it was reiterated that amendments necessary for determining the real controversy should ordinarily be allowed if they do not introduce a new cause of action. The amendment in the present case did not alter the fundamental nature of the suit but only sought consequential relief after adjudication of title.
15. The contention that the cause of action arose in 1954-55 merely on the basis of mutation is legally untenable. The first appellate Court, being the final Court of fact, has carefully examined the pleadings and evidence and recorded clear findings that the plaintiffs' title stands established, the defendants failed to displace that title, the amendment was legally permissible, and the suit is within limitation under Article 65. No perversity, misreading of evidence, or misapplication of law has been shown. The substantial question of law is accordingly answered in favour of the respondents/plaintiffs and against the appellants. 34
16. In view of the foregoing analysis, this Court holds that the learned first appellate Court was fully justified in reversing the judgment and decree of the trial Court and in decreeing the suit by holding it to be within limitation. The appellants have failed to establish any substantial question of law warranting interference under Section 100 CPC.
17. Accordingly, the second appeal being devoid of merit deserves to be and is hereby dismissed.
18. Parties to bear their own costs.
19. An appellate decree be drawn accordingly.
Sd/-
(Ravindra Kumar Agrawal) Judge ved 35 HEAD NOTE ******Amendment made in the plaint would relate back to the date of institution of the suit unless otherwise directs by the Court while allowing the application for amendment.