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15. Defendants 1 to 6 representing the Digambaris, resisted the suit by pleading that whatever title might have vested in Anandji Kalyanji Trust prior to the coming into force of the Bihar Land Reforms Act, on 25.09.1950, on the coming into force of that Act, the right title and interest of Anandji Kalyanji Trust had vested in the State of Bihar in view of the notification issued under Section 3(1) of that Act on 02.05.1953 as published in the Gazette, and hence, the plaintiff was not entitled to any relief based on the alleged title and possession over the Parasnath Hill. As regards the claim based on the agreement dated 5.2.1965 with the Government of Bihar, it was contended that the said agreement was void being against the scheme of the Bihar Land Reforms Act; was opposed to public policy and was discriminatory in that it chose to give favourable treatment to a small group of Jains known as Murty Pujaks, as against the entire Jain Community which had the right to worship in places of worship located on the Hills. It was also contended that the plaintiffs were never in possession or the management of the places of worship on the Hills and they were not entitled to the injunctions sought for, since the injunctions, if granted, would amount to an interference with the right to the Digambaris to worship the tonks, temples and charans located on the Parasnath Hill. Since the plaintiffs have neither title nor possession over the property, the plaintiffs were not entitled to any relief and the suit was liable to be dismissed. The State of Bihar, originally, filed a written statement submitting that the land had vested in the State under the Bihar Land Reforms Act; that the State had entered into an agreement with Anandji Kalyanji Trust in the light of the right to worship, available to Swetambari Jains and on the strength of that right, the right of the Digambaris to worship, could not be interfered with by the Swetambaris to the extent it was recognized by judicial decisions. Later, towards the close of the proceedings in the suit, the State filed an application for amendment of the written statement seeking to raise a plea that the land had vested in the State of Bihar, that the agreement entered into by the State of Bihar and Anandji Kalyanji Trust, was void in law; that it was vitiated by mistake and misrepresentation and that the plaintiffs could claim no relief based on the agreement it had relied on. The Trial Court rejected that application for amendment. The State of Bihar filed a revision against that order. While the revision was pending, the suit itself was finally disposed of by the Trial Court and consequently, the revision was withdrawn by the State of Bihar. But the State of Bihar filed an appeal against the decree of the Trial Court in T.S. No. 10 of 1967 and the memorandum of appeal challenged the order of the Trial Court refusing the amendment of the written statement prayed for by it.

16. Not satisfied with their challenge to the agreement dated 05.02.1965, relied on by Anandji Kalyanji Trust in their written statement, the Digambaris in furtherance of their defence, filed the Suit, Title Suit No. 23 of 1968 praying for a declaration that the said agreement entered into between the State of Bihar and the Anandji Kalyanji Trust was void in law, being opposed to public policy and contrary to the provisions of the Bihar Land Reforms Act. Consequential reliefs were also prayed for. This suit was resisted by Anandji Kalyanji Trust by pleading that the Digambaris were estopped from raising such a contention in view of Ex. D1 agreement dated 05.08.1966 entered into by them confirming the agreement entered into by Anandji Kalyanji Trust and that even otherwise, there was no merit in the challenge to the agreement between Anandji Kalyanji and the State of Bihar. Anandji Kalyanji Trust pleaded that the Digambaris were not entitled to any relief. The State of Bihar which was defendant 1 in that suit, took the stand it took in its written statement in Title Suit No. 10 of 1967, but reiterating that the land had vested in the Government under the Bihar Land Reforms Act and that the Government was not precluded from entering into the agreement like the one relied on by Anandji Kalyanji Trust and that the rights of the Digambaris was not intended to be affected by it.

17. The Trial Court, after trial, overruled the contention of the plaintiffs in T.S. No, 10 of 1967 and held that the entire Hill had vested in the Government in terms of the Notification issued under Section 3(1) of the Bihar Land Reforms Act. It held that the Government had not taken actual possession of the land even though documents were created indicating that possession had been taken. It was further held that the agreement entered into by the Government with Anandji Kalyanji Trust was valid even in the face of the Bihar Land Reforms Act, even though the provision made therein for sharing of profits of the forests that had vested in the State at 60:40 with Anandji Kalyanji Trust, was void in law, being opposed to the provisions of the Bihar Land Reforms Act; that otherwise, there was no reason to find against the agreement, that the agreement was valid and binding on the Government and that the Digambaris were estopped from questioning its validity in the light of the subsequent agreement Ext. D1 they themselves had entered into with the Government and that the plaintiff in T.S. No. 10 of 1967 were entitled to a decree restraining the Digambaris from trespassing into any portion of the Hill and are also entitled to a decree for mandatory injunction directing defendants 1 to 6 to remove the constructions attempted to be put up by them. The Trial Court recognized that defendants 1 to 6, the Digambaris had the right to worship in the tonks, temples and charans and held that, that right would not be affected by the decree for injunction. Though the Digambaris did not have the right to put up any construction and the unauthorized construction attempted was liable to be removed, Anandji Kalyanji Trust must permit the Digambaris to construct a Dharamshala in some portion of the property by giving the Digambaris, permission to do so as and when it was sought for. Thus, the suit was decreed, subject to the above observations. Since Ext. 9(a) agreement was found valid, inspite of one of its clauses being found invalid, the Trial Court dismissed Title Suit No. 23 of 1968 filed by the Digambaris.

49. We will, first of all, deal with the challenge to the allowing of the amendment to the written statement of the State. The State, as we have noticed, was impleaded at a later stage in the suit. Even though the State was impleaded, no relief was claimed against the State. The State filed a routine written statement admitting that an agreement dated 5.2.1965 was entered into and indicating that the rights of parties are governed by that agreement. But the State did plead that the rights of Anandji Kalyanji Trust over the property had vested in the State under the Bihar Land Reforms Act. After pleading that the agreement was perfectly valid and had been acted upon and that it was entered into out of deference to the religious sentiments of the Community, it was also pleaded that the agreement was in substitution of the statutory compensation payable under the Bihar Land Reforms Act. It was also pleaded that the entire estate including the Hill vested in the State of Bihar, as provided in Section 4(6) of the Bihar Land Reforms Act and also as provided under Section 4(f) of that Act. It was stated that by virtue of that vesting, the collector was to take charge. But he actually did not take charge of the institution which was held to be sacred by the Jain Community, or the Trust or buildings connected therewith which were managed and controlled by Seth Anandji Kalyanji Trust. It was also pleaded that in terms of the agreement, an area of half a mile radius around the temples, which had been taken charge of, had been excluded from the boundaries of the protected forests of the Parasnath Hill and they were admitted to be in the exclusive possession of Seth Anandji Kalyanji Trust. What was attempted to be done by the amendment was to introduce the plea that the agreement was hit by the Bihar Land Reforms Act and that the State was misled into entering into that agreement, since it was misrepresented by Anandji Kalyanji Trust that it was the representative of the entire Jain Community, whereas it was only a representative of the Murti Pujak Community of Jains representing only a faction of the Swetambaris. As we have noticed, even though the State did not specifically plead that the agreement was void in its original written statement, the said plea was raised by defendants 1. to 6 against whom reliefs were claimed by Anandji Kalyanji Trust on the basis of that agreement. When the suit was filed on the basis of the agreement by the plaintiff, it was open to the defendants to defend that suit by pleading that the plaintiff could found no cause of action on that agreement, since that agreement was against a law in force, was opposed to public policy and was void in law. This was what the Digambaris did in their written statement and the aspect was covered by a specific issue. The Digambaris had also filed Title Suit No. 23 of 1968 for declaration that the agreement was null and void and that suit was jointly tried with the suit filed by Anandji Kalyanji Trust. Therefore, the issue whether Ext. 9(a) agreement entered into by the State of Bihar and Anandji Kalyanji Trust representing the Murti Pujak Jain Community, was valid or was null and void in view of the provisions of the Bihar Land Reforms Act and for other reasons had necessarily to be decided. To that extent, the plea of the State sought to be introduced by an amendment to the written statement was nothing new. Similarly, the plea of the State that the agreement was opposed to public policy and hence unenforceable was also a plea that arose in the light of the pleadings of the Digambaris and was a plea which could be entertained even by an Appellate Court for the first time in an appropriate case. A plea based on public policy could be entertained even without a specific plea in the pleadings since a Court is not expected to ignore public policy or violation of a statute to grant relief to a party. Therefore, to that extent also, the permission granted for amending the written statement by the State could not be faulted. But the position may be different regarding the plea of mutual mistake and misrepresentation sought to be pleaded by the State in its amended written statement. These were pleas that depended on the facts to be pleaded and in terms of Order VI, Rule 4 of the Code of Civil Procedure, the State had to set out in its pleadings the facts on which those pleas were sought to be sustained. The allowing of the amendment in respect of those aspects cannot be found to be sustainable in the facts and circumstances of the case. To that extent, we find merit in the contention raised on behalf of the appellants when it is submitted that even if such an amendment incorporating pleas of mistake and misrepresentation was being allowed, the matter could have been finally decided in the Appellate Court and the suit should have been remanded for a proper decision on those questions in the light of the additional written statement that may be filed by Anandji Kalyanji Trust and the case that may be tried on the basis of that pleading. But as regards the plea that the agreement in an illegal contract being against the Land Reforms Act in force and that it is opposed to public policy, no new material was needed and all the materials were already on record and the case would be finally decided at the appellate stage.