Madhya Pradesh High Court
Surendra Kumar Rungta vs Pawan Kumar Surekha And Anr. on 7 July, 2004
Equivalent citations: 2004(4)MPHT238, AIR 2005 (NOC) 13 (MP), 2004 A I H C 3472, (2004) 3 MPLJ 412, (2004) 4 CURCC 164, (2004) 4 MPHT 238, (2005) 1 JAB LJ 80, (2004) 4 CIVLJ 521, (2004) 22 ALLINDCAS 412 (MP)
ORDER K.K. Lahoti, J.
1. The petitioner has filed this petition assailing order dated 19-3-2004 passed by Fourth Civil Judge Class-1, Katni in Civil Original Suit No. 3-A/2001 by which the defendant's application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to in short 'the Code') has been rejected.
2. The Trial Court rejected the aforesaid application on the ground that in the case plaintiffs have closed their evidence and the proposed amendment amounts to amend pleadings extensively. The proposed amendment has been sought to delay the proceedings and is not necessary for the just decision of the case.
3. The learned Counsel appearing for petitioner submitted that the proposed amendment is necessary for the just decision of the case. The petitioner is raising pleas which are necessary to decide the controversy between the parties. The suit is filed on the ground that the document in question is mortgage deed while there is no mortgage deed executed by the predecessor of the plaintiffs in favour of the defendant. In fact, it is sale-deed which was executed on 8-5-1972. The petitioner is raising plea in respect of factual position that the aforesaid sale deed was acted' upon between the parties and after execution of sale-deed on 8-5-1972, defendant/petitioner applied for mutation of the land in his own name. The Tehsildar, Katni invited objections in this regard and Smt. Kamla Bai, grand mother of plaintiff No. 1, consented to the mutation. The defendant who is in possession of the land as of owner got diverted the land from agricultural purposes to non-agricultural purposes. The matter was enquired by the concerned officer. The land was diverted and the petitioner paid premium on the land. This happened in the year 1973-74. The petitioner is paying monthly tax of the property. In the year 1974, Municipal Council, Katni, enquired from Shiv Dutt Rai through Smt. Kamla Bai vide letter dated 17-6-74, whether she was willing to sell the land to the Council. On receiving this notice, Smt. Kamla Bai submitted a signed reply dated 2-7-74 in which she had admitted that the disputed land has been sold to the defendant by registered sale-deed. Apart from this, out of suit property, defendant has transferred land to 13 persons between the period 1986 to 2001 which is also in the knowledge of the plaintiffs. Apart from this, the plea of limitation is also raised by the petitioner in the written statement. The aforesaid facts are very relevant for the just decision of the case and shall bring the facts before the Court which will help the Trial Court to decide the controversy between parties. On the aforesaid contention, the learned Counsel for petitioner submitted that the proposed amendment is necessary and may be allowed. So far as delay is concerned, the other party may be compensated by cost, but merely on the ground of delay, the amendment can not be refused.
4. The learned Counsel appearing for respondents/plaintiffs opposed the petition Vehemently and contended that after closure of the evidence of the plaintiffs, such application which is malafide and has been filed just to delay the proceedings, if at this stage, the amendment is allowed, natural consequence will be that plaintiffs shall be deprived to adduce evidence in this regard, they will not get any right to rebut the evidence which will cause serious prejudice to the plaintiffs. The Trial Court considering the amended provisions of the Order VI Rule 17 of the Code has rightly rejected the application.
5. Considering the rival contentions of the parties, the application filed by the petitioner may be seen. In the application, petitioner is seeking extensively amendment in the written statement. From the perusal of the application, it appears that the petitioner is placing factual position before the Court and the aforesaid facts are necessary to decide the controversy between the parties in respect of true nature of the -transaction. Contention of the petitioner is that document dated 8-5-1972 is in fact outright sale while the contention of the plaintiffs is that it is a deed of mortgage. The aforesaid circumstances as stated hereinabove are relevant to show the factum what is the true nature of the document and it will help to the Trial Court to ascertain the factual position. So far, as delay is concerned, the other party may be compensated. Plaintiffs may get right to rebut the contention by re-examination of witnesses or the plaintiffs may examine further evidence in this regard as the defendant has not begun his evidence so far. Such opportunity may be provided to the plaintiff at this stage. !
6. Considering aforesaid and after minute examination of the application (Annexure P-7) filed under Order VI Rule 17 of the Code by the petitioner, in my considered opinion, the proposed amendment, in Paras 23, 24,25,27,29,30,32,33,34 and 35, is necessary for the just decision of the case and accordingly the application filed by the petitioner is allowed in part. For ready reference aforesaid paragraphs are quoted herein under :-
"23. Soon after the execution of the sale deed dated 8-5-1972, the defendant applied for mutation of the land in his own name. The Tehsildar, Katni invited objection by duly proclaimed and published notice., Smt. Kamla Bai appeared in the case and consented to the mutation. On the said promise the Tehsildar, Katni vide order dated 28-8-1973 mutated the suit land in Case No. 79-A/6 of 72-73 on the name of defendant. Smt. Kamla Bai is the grand mother of plaintiff No. 1. The plaintiffs are bound by this decision under the principle of res judicata or in the alternative by the rule of "Issue Estoppel".
24. The defendant as owner in possession of the suit land applied for diverting use of suit land from agriculture to non-agriculture. On the application the matter was enquired and the diversion of the land use was permitted by the competent officer. The defendant paid the premium of Rs. 301.55 P. and Land Revenue for non-agriculture use at Rs. 111.60 P. per annum was fixed payable from the year 1973-74 as enhanced land revenue from 1973-74.
The defendant has been paying this land revenue (known as diversion tax) since 1973-74 to-date.
25. The suit property is situated within bounds of Municipal Corporation of Katni. Property Tax and other taxes viz, light and conservancy fee are chargeable by the Corporation in respect of the suit property and payable by the owner. The defendant as owner in possession of the suit property has been paying these taxes all the time to the knowledge of plaintiffs.
27. In the year 1974 or there about the Municipal Council, Katni enquired from Shivdatta Rai through Smt. Kamla Bai by letter dated 17-6-74, whether she was willing to sell the suit land to the , Municipality. On this notice Smt. Kamla Bai submitted a signed reply objection dated 2-7-1974, In para one of this reply dated 2-7-1974, Smt. Kamla Bai admitted that land measuring hector 0.364 out of Khasra No. 1012 of Katni Murwara has been sold to defendant by a Registered Sale Deed. She further admitted that the Revenue Record has accordingly been mutated in favour of the defendant. The plaintiff one claiming title to the suit property through his grand mother Smt. Kamla Bai. The plaintiffs are bound by this admission of Smt. Kamla Bai and can not be allowed to assert contrary to this admission of fact which is supported by the sale deed.
29. After the purchase of the suit property the defendant transferred by sale or otherwise portions of the suit property to about 13 persons on different dates between the. period of 1986 to 2001. The-plaintiff Pawan Kumar who lives across the private road of the suit property was in full know of these transactions. He never raised any objections. By their conduct and behaviour the plaintiffs have always demonstrated and acknowledged the title of the defendant as owner .thereof. Plaintiff Santosh witnessed the sale deed (sic) in favour of Smt. Asha Bahre and Rakesh Bahre.
30. By the present suit the rights of about 13 persons would be seriously effected. These persons have built houses costing several lacs each. In the absence of these persons as party in this suit, who are necessary parties, the suit can not proceed and must be dismissed.
32. The suit is barred by time, the cause of action, if at all, arose in 1972.
33. The defendant's father was engaged in the business of raising coal and selling the same in the name of S.C. Rungta Colliery at Burhar. After the Nationalisation of Coal Mines in 1973, the defendant along with his father and brothers shifted to Katni. In the year 1974 or thereabout the defendant built a house in the part of the land for the family living investing about three lacs. About four years thereafter the defendant got constructed another residential house costing Rs. five lacs or so. A wall about 6 feet hight and about 150 feet in length was constructed to secure the area costing about a lac of rupee. All this construction was done in the presence and knowledge of the plaintiff who were residing just across the ten feet wide road. The defendant by these constructions and sale of other portions to different persons whose list is on the record openly asserted their rights as owner of the suit property. The plaintiff knew the same and never objected to this open demonstration of ownership adverse to that of the plaintiffs. In the alternative, the defendant assert that he has perfected his title over the suit land by adverse possession as well.
34. The defendant sold or transferred 13 plots to different persons whose list is on the record, who in their turn have constructed buildings costing several millions in the presence of the plaintiff by asserting their title. The defendant himself invested about six to seven lacs in constructing two buildings in the presence and to the full knowledge of the plaintiffs. The plaintiffs by their conduct, i.e., in not raising any objections or taking steps to stop the defendant from investing huge amounts over the property is now estopped from denying the title of the defendant over the suit property. The rule of estoppel applies.
35. In verification clause substitute figure "35" for figure "19".
7. Petitioner is permitted to incorporate aforesaid paragraphs in the written statement. As the proposed amendment has been prayed by the petitioner after closure of the plaintiffs' evidence, this amendment is allowed subject to payment of cost which is quantified Rs. 5,000/- payable by the petitioner before incorporation of the amendment within a period of 30 days from today.
8. After incorporation of the amendment by the petitioner in the written statement, the plaintiffs shall be entitled to amend the plaint, if advised so. Trial Court may frame additional issues, if any, thereafter plaintiffs will be entitled for further examination of the witnesses or to examine any other witnesses as may be advised to the plaintiffs in this regard. Thereafter petitioner may examine his witnesses.
With the aforesaid, this petition stands finally disposed of. No order as to costs.