Andhra HC (Pre-Telangana)
Parepalli Pallalayya vs Kasagani Ramulu And Others on 29 December, 1999
Equivalent citations: 2000(2)ALD70
JUDGMENT
1. This revision is directed against the order passed by the Junior Civil Judge, Chintalapudi, in IA No.590 of 1998 in OS No.t55 of 1994, whereby the application for amendment of the plaint has been dismissed.
2. The petitioner-plaintiff has filed a suit for permanent injunction alleging that, he along with his brother namely Ramulu, had purchased the plaint schedule property orally for a valuable consideration in or about the year 1970 from Kasagani Lingamma, Kasagairi Laxntamma Swamy, the wife and son of one late Mallayya and they have been in cultivating possession of the same to the knowledge, inter alia, of the defendants. Patta has also been granted in favour of himself and his brother. In the alternative, he has pleaded that due to the long and uninterrupted continuous possession adverse to the interests of the defendants, he and his brother had perfected title by adverse possession. Since the defendants are threatening his possession, he is entitled for permanent injunction.
3. The defendants through their written statement filed on 7-6-1995 denied the claim of the petitioner-plaintiff. They denied that the plaintiff is the owner in possession of the plaint schedule property. Issues were framed on 5-7-1995.
4. After examining two witnesses on his behalf, the petitioner-plaintiff filed application for amending I'aras 4 and 7 and the prayer clause. The proposed amendment in Para 4 runs as under:
"Even otherwise they (plaintiff and his brothers) perfected their title to the property by long continuous and uninterrupted possession and enjoyment adversely to the interest of the defendants. As the cloud is caste with regard to the title of the property, the plaintiff is seeking declaration of title to the property as he perfected his title by long continuous and unobstruct possession since 1970."
5. Consequently, amendment has been proposed in Para 7, regarding Court fees and jurisdiction, and in the prayer clause seeking declaration that the plaintiff is the owner of the property.
6. This application has been resisted, inter alia, on the ground that the 1st respondent has been in peaceful possession and enjoyment of the plaint schedule property, that he has denied the title of the petitioner-vendor, that the application is belated and that it is barred by limitation.
7. The trial Court observed that the plaintiff-petitioner has claimed title from 1970. Therefore, according to him, he has perfected his title by adverse possession by 1982. Hence, the suit for declaration oftitle should have been filed within three years therefrom, vide Article 58 of the Limitation Act. It has been observed that the respondent has denied the title of (he plaintiff through the written statement filed on 7-6-1995. Application for amendment was filed on 26-11-1998. Even if it is assumed that the cause of action arose when the title of the plaintiff has been denied through written statement on 7-6-1995, the relief for declaration of title should have been sought at least within three years from 7-6-1995, but it has not been done. Holding so, the trial Court rejected the application on the ground that the claim for declaration of title is barred by limitation.
8. Feeling aggrieved by the impugned order of dismissal of the application, this revision has been filed.
9. Having heard the learned Counsel of both sides at length, 1 am of the opinion that the impugned order is liable to be set aside and the application for amendment should be allowed for the reasons given in the subsequent paragraphs.
10. Relying on L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., and Pirgonda Hongonda' Patil v. Kalgonda Shidgonda, , it has been held in the case of Mettu Naresh Kumar Reddy v. Nellore Ramamma, , that, the amendment can be allowed at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties. Such amendment should not be based on new facts and new cause of action. At the same time, the amendment should not cause prejudice to the other side. If the amendment amounts to merely a different or additional approach to the same facts, the amendment has to be allowed even after the expiry of the statutory period of limitation.
11. In the case of Surabhi Baburao v. Vullingala Suryanarayana and others, , it has been held that:
"Part V of the Limitation Act contains articles, including Article 65, applicable for suits relating to immoveable property; whereas, Part III which contains Article 58 deals with suits relating to declaration. When there is a specific chapter viz.. Part V relating to suits for immoveable property, Article 65 which is relevant Article which provides for limitation, has to be applied and not Article 58 which provides limitation for other declarations."
12. Article 58 of the Limitation Act prescribes a period of three years to obtain the declaration when the right to sue accrues while Article 65 of the Act prescribes a period of 12 years for recovery of possession of immoveable property or any interest therein based on title when possession of the defendant becomes adverse to the plaintiff.
13. Article 65 of the Limitation Act reads as under:
Description of suits Period of Limitation Time from which period begins to run
65.
For possession of immoveabte property or any interest therein based on title.
Twelve years When the possession of thedefendant becomes adverse to the plaintiff.
14. A look at Article 65 of the Limitation Act shows that the first limb of this Article entitles the plaintiff to file a suit for possession of immoveable property within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The suit for possession would be decreed only when the Court records a finding in favour of the plaintiff that he is the owner of the property. In other words, when possession is sought, a decree for declaration of title can be claimed and granted if the suit is filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Then, how can it be said that when the plaintiff is in possession of his property, he shall be denied the right to claim a declaration of his title in case he does not file a suit for declaration of title within three years when the right is denied? It is also pertinent to note that a suit for claiming any interest in the immoveable property based on title can also be filed within 12 years when it is denied by the defendant. Article 65 of the Limitation Act is not confined only to suits for possession based on title. When the plaintiff is entitled for a suit for protecting his interest of whatever nature in the immoveable property based on title, the case would be covered under Article 65 of the Limitation Act and not under Article 58 of the Act, for the simple reason that Article 58 deals with suits relating to declarations, except when the declaration of title is sought in respect of immoveable property, as there is a specific provision, that is to say Part V of the First Division of the Schedule. I am, thus, in complete agreement with the view expressed by learned Brother P. Ramakrishnam Raja, J., (as he then was).
15. True that the starting point of limitation for the purpose of Article 58 of the Limitation Act is when the right to sue first accrues, vide Shaik Omer Bin Ali Umodi v. Syed Yousuf Ali and Ors., . But, as noted above, Article 58 of the Limitation Act governs only the cases in which declaration of any other nature is sought, except, the declaration of title. It is also apposite to mention that the case of Swabhi Baburao (supra), was not brought to the notice of Shri Justice P. Venkatarama Reddi, while making submissions by the learned Counsels, in the case of Shaik Omer (supra).
16. In the case of Y. Venkateswarlu v. V. Narayana and others, , suit for declaration of hereditary rights of tonsure in TTD Kalyanakatta was filed beyond three years from the date of accrual of cause of action and, therefore, it was held that the suit was barred under Article 58 of the Limitation Act. As this case does not relate to declaration of title of immoveable property, it is distinguishable on facts.
17. The contention of the learned Counsel of the respondents that the petitioner-plaintiff, claiming title through oral purchase, cannot claim adverse possession, has no force. The principle laid down in the case of Sardar Prahlad Singh v. Syed Ali Muxa Raza, , is of no help to the respondents. In this case, it has been observed that possession is not held to be adverse if it can be inferred to be a lawful title. The person selling up adverse possession may have been holding under the rightful owners title viz., trustees, guardians, bailiffs or agents. Such persons cannpt set up adverse possession. In the case on hand, the petitioner-plaintiff is not claiming title as trustee, guardian, bailiff or agent. He is claiming title over the plaint schedule property on the ground that he had purchased the same through an oral agreement in the year 1970 along with his brother for valuable consideration (though prima facie it appears whether he has acquired a lawful title if the consideration is more than Rs.100/-) and since then he has been in continuous cultivating possession of the same and in the alternative, he has claimed adverse possession against the respondents. It is pertinent to note that perfection of title by adverse possession has already been claimed by the petitioner-plaintiff in the plaint and through the proposed amendment in Para 4, he wishes to explain in some details as to how he claims to have perfected his title by adverse possession. Thus, the case of Sardar Prahlad Singh, (supra), is distinguishable on facts. It would not be out of place to mention that the merits of the case should not be critically examined at the time of consideration of the application for amendment. Whether the petitioner shall ultimately be able to establish title by virtue of the alleged purchase or on the ground of adverse possession is a different thing.
18. In the case of K. Rajeha Constructions Lid. v. Alliance Ministries and others, , the plaintiff had alleged that he was in possession of the plaint schedule property by virtue of the agreement to sell executed by the defendant. Because he apprehended that the defendant may dispose of the property, the plaintiff filed a suit for permanent injunction. Cause of action for the suit had arisen on 29-4-1987 when the defendants had refused to perform their part of the contract vide Para 28 of the plaint. Then, on 25-11-1994, application for amendment was made for the grant of relief of specific performance of the contract. Under these circumstances, the Apex Court has held that the relief for specific performance of the contract had been sought after a lapse of seven years from the date of filing the suit and, therefore, the suit for specific performance of the contract was barred and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, any amendment on the ground set out would defeat the valuable right of limitation accrued to the defendant. The law laid down in this case does not help the respondents as it is distinguishable on facts. As noted above, the suit for declaration of title of immoveable property is governed under Article 65 of the Limitation Act which prescribes a period of 12 years from the date when the cause of action arises. In the case on hand, through the written statement dated 7-6-!995, the claim of the petitioner-plaintiff has been denied. The application for amendment was filed on 26-11-1998. Therefore, it cannot be said that the proposed amendment cannot be allowed because the relief claimed is barred by limitation.
19. The petitioner-plaintiff has already pleaded in the alternative that he has perfected his title by adverse possession and, therefore, even if the proposed amendment is allowed, no prejudice would be caused to the respondents-defendants because even in the absence of the proposed amendment, the petitioner-plaintiff is entitled to establish that he has perfected his title by adverse possession. It is altogether a different thing whether he successfully establishes his title by purchase or on the plea of adverse possession, but the proposed amendment, even if allowed, would not work injustice to the petitioner-plaintiff because no right can be said to have accrued to him by virtue of the law of limitation. It is too well settled that the application for amendment cannot be rejected merely on the ground of delay.
20. In the result, the revision petition is allowed. The impugned order is set aside and the application for the proposed amendment is allowed subject to payment of costs of Rs.300/- (Rupees Three Hundred Only) to the respondents within a period of three weeks from today. The proposed amendment should be incorporated in the plaint within a period of three works from the date of communication of this order to the trial Court. The respondents shall also be at liberty to make consequential amendment in their written statement. Costs as incurred.