CFA 69/93 (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil First Appeal No.69/1993 Kana and others Vs. Bhanwarlal Date Of Judgment :: 10.9.08 Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Sanjay Mehrishi, for appellants. Mr. Anand Sharma, for respondent. .............. By the Court :- This is a defendants' civil first appeal against the judgment and decree dated 12/3/1993 passed by District Judge, Bundi in Civil Suit No.5/1993 whereby the suit of the plaintiff-respondent for possession and mesne profits has been decreed. 2. The plaintiff-respondent filed a suit for possession and mesne profits of the suit schedule property with the averments that a plot situated at Meera Gate, Bundi (detailed description in para 1 of the plaint) was purchased by him from the Municipal Board, Bundi in auction, of which 'patta' was issued in his favour on 14/3/1958; he took a loan from the CFA 69/93 (2) Government of Rajasthan for raising construction on the said plot and he got the foundation of the same dug but he could not complete the construction work on account of the death of his father. It was further averred that the defendants had taken forcible possession of the disputed plot and started doing business of selling stones on the same, thereupon he wrote letters to various authorities for help, as a result of which, the appellants executed agreement in his favour and also undertook to vacate the said plot soon but despite of several requests, defendants did not hand over the premises and contrary to their undertaking they filed a suit No.189/1983 for permanent injunction in the court of Munsif. Therefore, a suit for possession and mesne profits was filed. 3. The defendants-appellants in their written statement denied the fact of the ownership of the plaintiff-respondent on the disputed plot and specifically pleaded that the plaintiff never remained in possession thereof. Contrary to this the defendants were in possession of the disputed land for the last 12 CFA 69/93 (3) years and prior to that the defendant Kana was keeping his stock of stones for five years and even there-before Kana's father (Baldev) was in possession of the disputed plot for 30-35 years. It was also the case of the defendants that in the knowledge of the plaintiff they were in the possession of the disputed land uninterruptedly and had become owners of the same by adverse possession. 4. On the basis of the pleadings of the parties, following issues were framed :- ''1. È या चरण बम 1 वाद पऽ मɅ वǔण[त चतुसȸमा व नाम का Ü लॉट वादȣ ने खरȣदा था तथा उसमɅ िनमा[ण कराने हेतु नीवɅ खुदवाई थी? 2. È या ूितवादȣगण ने वाद ूः तुत करने से छ: वष[ पूव[ वादमः त Ü लॉट पर अनािधकृत Ǿप से कÞ जा कर िलया? 3. È या ूितवादȣगण ने वादȣ का Ǒकरायेदार बताते हएु, इकरारनामा िलख Ǒदया Ǒक वे शीय Ü लॉट खाली कर वादȣ को सà भला दɅगे, यǑद हां तो इसका वाद पर È या असर है? 4. È या वादȣ ǒववाǑदत Ü लॉट के उपयोग एवं उपभोग कȧ ¢ित के Ǿप मɅ 1500/- ूितमाह कȧ दर से 54000/- पाने का अिधकारȣ है? 5. È या ूितवादȣगण ǒववाǑदत Ü लॉट पर कÞ जा मुखालपाना के आधार पर इस Ü लॉट के ः वामी बन गये है? 6. È या वादȣ ने आवँ यक तØ य छपाये हɇ ु , यǑद हां तो इसका वाद पर È या ूभाव है? 7. È या वाद-अविध मÚ य नहȣं है? 8. È या ूितवादȣगण 2000/- Ǿ ¢ितधन वादȣ से ूाÜ त करने के अिधकारȣ है? 9. अनुतोष.'' CFA 69/93 (4) 5. In support of the plaint, the plaintiff-respondent apart from himself as PW1, examined PW2 Nand Kishore, PW3 Nathu Lal, PW4 Ram Laxman and PW5 Prithvi Singh while the defendant- appellants examined DW1 Naeem, DW2 Kanhaiya Lal, DW3 Mangi Lal and DW4 Baldev. 6. After hearing both the parties, learned District Judge, Bundi has decreed the suit for possession and awarded Rs.1080/- as mesne profits. The defendant-appellants were further ordered to pay the damages for the use and occupation at the rate of Rs.30/- per month from the date of institution of the suit till the date of delivery of the possession of the disputed land to the plaintiff-respondent. 7. Thus, aggrieved from the impugned judgment and decree the defendant-appellants have filed this civil first appeal. 8. Heard learned counsel for the parties and perused the impugned judgment, evidence led by both the parties and other material available on the record. 9. It was inter alia contended by the counsel appearing for the appellants that the CFA 69/93 (5) documents Ex.4, Ex.5 and Ex.6 produced and relied by the plaintiff-respondent are the rent notes written by the defendant-appellants for the disputed land, therefore, this suit for possession and mesne profits was not maintainable and only suit under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 could have been filed on the grounds available under section 13 of the said Act. He also submitted that inadvertently this defense could not be taken in the written statement, therefore, the defendant-appellants filed an application under Order 6 Rule 17 of the Code of Civil Procedure (in short the Code) seeking necessary amendments in their written statement in this regard. It was further submitted that the said amendment is necessary for the just decision of the controversy in between the parties, therefore, delay caused in seeking such amendment should not be permitted to come in the way for imparting justice. Reliance was placed on the judgment delivered in the case of Ugar Singh Vs. Ram Niwas, reported in 2006 WLC (Raj.) UC page 692 wherein it has been held that application under CFA 69/93 (6) Order 6 Rule 17 of CPC can be filed before the appellate court seeking amendment in the pleadings. He also placed reliance on the judgment delivered in the case of Andhra Bank Vs. ABN Amro Bank N.V. And others, reported in (2007) 6 Supreme Court Cases 167 wherein it has been held that delay in filing the application for amendment is no ground to refuse the prayer for amendment. It was further held that the court cannot go into the question of merit of such amendment. 10. Per contra, learned counsel appearing for the plaintiff-respondent contended that it was neither the case of the plaintiff nor the defendants that disputed property was ever given on rent to the defendant-appellants and it was a specific case of the plaintiff-respondent that defendant-appellants were the trespassers who took the forcible possession of the disputed open land, therefore, the plaintiff-respondent filed a suit for possession whereas in the written statement the defendant-appellants claimed ownership on the disputed land by way of adverse possession and knowingly well about the CFA 69/93 (7) documents Ex.4, Ex.5 and Ex.6, which were also referred in the plaint, the defendant-appellants deliberately did not choose to take such plea, which after a lapse of more than two decades they want to change the nature of the case by way of this amendment which is not only inconsistent but also contradictory and therefore now the defendant-appellants should not be permitted to take a somersault by way of amendment in the written statement. In support of the contentions reliance was placed on the judgment delivered in the case of Reserve Bank of India and another Vs. Ramkrishna Govind Morey, reported in (1976) 1 Supreme Court Cases 803 wherein it was held that belated application for amendment should not be allowed. He also placed reliance on the judgment delivered in the case of Union of India Vs. Pramod Gupta (Dead) by LRs. And others, reported in (2005) 12 Supreme Court Cases 1 wherein it was held that delay and latches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. 11. It was then submitted that CFA 69/93 (8) defendant-appellants also filed a suit on 28/7/1983 for permanent injunction against the plaintiff-respondent in regard to the disputed land stating therein that they are in possession of the disputed land since last about 20 years, therefore relief was sought for protecting their possession wherein also it was not pleaded by the defendant-appellants that they are the tenants in the disputed land, the said suit was dismissed and thereafter appeal of the defendant-appellants was also dismissed holding that appellant- defendants have no lawful right to retain the possession and that judgment has become final. It was also submitted that Ex.P4, Ex.P5 and Ex.P6 are the documents containing the undertaking to vacate the disputed land in three months which were written and handed over to the police by the defendant-appellants, which is evident from the endorsement made by the police on such documents, therefore, unilateral act cannot create relationship of tenancy. 12. I have considered the rival submissions made at the bar. The plaintiff- respondent filed a suit against the defendant- CFA 69/93 (9) appellants on 18/12/1984 for possession and mesne profits of the suit schedule property alleging that defendant-appellants encroached upon the land forcibly wherein reference of Ex.4, Ex.5 and Ex.6 was also made which is in connection with the undertaking given by the appellants to vacate the disputed land within a period of three months, the said documents were given to the police by the defendant-appellants which is evident from the endorsement made by the police thereupon. It is also apparent that the defendant-appellants in their written statement came with the specific defence that they have become the owner of the plot in dispute by virtue of adverse possession and the plaintiff- respondent has no right and was never in possession of the plot in dispute. It is also not disputed by the defendant-appellants that they also filed a suit for permanent injunction against the plaintiff-respondent in regard to the same disputed plot and the said suit was dismissed, thereafter appeal filed by defendant- appellants before the District Judge was also dismissed and no further appeal has been CFA 69/93 (10) preferred by them. In this fact situation, when defendant-appellants were very well aware about the documents Ex.4, Ex.5 and Ex.6 from the very beginning and they did not prefer to take the plea of tenancy nor they objected the maintainability of the suit on this count and there is no apparent reason why this was left out when the written statement was filed. 13. It is also pertinent to mention that the suit of the plaintiff-respondent was decided after a period of one decade on 12/3/1993 and against that judgment and decree first appeal was preferred by the defendant-appellants in the year 1993 which was admitted and after a lapse of about another a decade, on 6/2/2003 this belated application for amendment in the written statement was filed. Though normally application for amendment in the pleadings is not liable to be dismissed solitary on the ground of delay as has also been held in Andhra Bank's case (supra) but it is also equally settled that along with other factors, delay and latches in filing the application is also a relevant factor as has been held in Union of India and another's case CFA 69/93 (11) (supra). 14. At this juncture, it would also be appropriate to have a glance over the provisions of Rule 17 of Order 6 of the Code which was amended and substituted by the amendment of 22 of 2002 w.e.f. 1/7/2002 which reads as under :- “17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 15. According to the aforesaid provision, the amendment in the pleadings can be allowed at any stage of the proceedings but in a case where trial has commenced, the amendment could only be allowed if the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before CFA 69/93 (12) commencement of the trial. 16. Here in the instant case, as stated here-in-before, the defendant-appellants were fully aware about the documents Ex.4, Ex.5 and Ex.6 from the initial stage of the proceedings but they did not take the plea of tenancy nor any objection of jurisdiction in that regard was raised and contrary to this they claimed right over the disputed property by way of adverse possession in their written statement, therefore, after about two decades by way of this amendment they cannot introduce an inconsistent and contradictory pleading in their written statement at this appellate stage, specially in the circumstances where it was nobody's case that the disputed property was on rent, therefore, amendment sought does not appear to be necessary for decision of real controversy between the parties, as such the contention raised by the counsel for defendant-appellants in this regard is devoid of any merit and the application filed by the defendant-appellants under Order 6 Rule 17 of the Code is hereby dismissed. 17. So far the case of the defendant- CFA 69/93 (13) appellants of adverse possession is concerned, the same is demolished from their statements. Appellants Mohammad Naeem DW1 and Kanhaiya Lal DW2 clearly stated in their statements recorded on 30/3/1990 that they were in possession since last 16 years on the disputed land. The suit was filed on 18/12/1984, therefore, even according to them they were in possession from 10 years of filing of the suit and as such they cannot claim adverse possession, otherwise also the defendants did not state that they were in hostile possession from the plaintiff, therefore, the stand of the defendant-appellants whereby they claimed their right by way of adverse possession is also not found sustainable. 18. So far ownership of the plaintiff- respondent over the disputed land is concerned, it has been amply proved not only by the statement of the plaintiff Bhanwar Lal PW 1 but also from the sell certificate Ex.1A, map Ex.2 and Ex.3 permission of construction by Municipal Board, Bundi. Further Prithvi Singh PW5 who was a UDC in the office of District Collector, Bundi proved that Rs.8,000/- were sanctioned as a loan CFA 69/93 (14) in favour of Bhanwar Lal plaintiff-respondent on 30/3/1970 and as a first installment Rs.1600/- were given to him whereas the defendant- appellants do not claim title except by way of adverse possession and this claim was not found sustainable. 19. Keeping in view the above discussion in the light of entire material available on the record, I do not find any illegality, infirmity or impropriety in the impugned judgment and decree. 20. Consequently, this appeal fails having no merit and the same is dismissed with costs. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.