IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.256 of 2004 alongwith CMPMO No.257 of 2004. Reserved on: 5.4.2011 Date of decision: 7.4.2011 CMPMO No.256 of 2004 Ramneesh Kumar & ors. …. Petitioners Versus Tripta Devi & ors. ….. Respondent CMPMO No.257 of 2004 Padma Devi & ors. ….. Petitioners. Versus Tripta Devi & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioners: Mr.Ajay Sharma, Advocate. For the respondents: Mr.Neeraj Gupta, Advocate. _____________________________________________ Deepak Gupta, J. 1. These two petitions are being disposed of by a common judgment since similar questions of fact and law are involved in the same. 2 2. Briefly stated the facts of the case are that the respondents herein filed two separate Civil Suits, one against Om Parkash and the second against Ramneesh Kumar and others. In both the suits, the prayer made was that the plaintiffs be declared to be owner in possession of the suit land comprised in Khata No.58. The Khatauni numbers and Khasra numbers in the suits were different but we are not concerned with the same. 3. The suits were contested on various grounds and the defendants denied that the plaintiffs are the owners of the suit land and claimed that the entry showing the plaintiffs to be owners is a mere paper entry and they have got no title on the suit land. It was also averred that the defendants have become owners by way of an adverse possession. 4. During the pendency of the suit, one Sh.Ved Parkash who was also a co-owner filed an application for correction of the settlement record and the objections were mainly with regard to the ‘Karunkans’ i.e., measurements and these objections were accepted and part of land comprised in Khata No.58 was transferred to Khata No.59. Ved Parkash filed 3 another application for being impleaded as party in the suit on the ground that his rights were likely to be affected. This application was rejected by the learned Trial Court and thereafter, the Revision Petition filed by Ved Parkash was rejected, though it was clarified that any decree passed in the present suit would not bind the aforesaid Ved Parkash. This application was rejected on 4.1.2002 and on 9.1.2002, application under Order 6 Rule 17 was filed before the learned Trial Court and this application is stated to be prepared on 7.1.2002. 5. By means of this application, the defendants sought to amend the written statement and bring in two amendments; firstly that on the application of Ved Parkash some land forming part of Khata No.58 had been transferred to Khata No.59 and secondly that the plaintiff No.4 Sh.Mool Raj while appearing in the witness box had stated that he had purchased the suit land by means of an oral sale by entry of mutation. On these two grounds, the written statement was sought to be amended firstly to show that some part of the suit land had been transferred to Khata No.59 and secondly that the sale in favour of 4 plaintiff No.4 was not a valid sale in the absence of any registered document. The application for amendment was rejected by the learned Trial Court in both the suits. Hence the present petitions. 6. The learned Trial Court has been swayed by 3 factors. Firstly that the order of the settlement Officer making the correction was not final; secondly that the application filed by Ved Parkash had been rejected upto this High Court and thirdly that the defendants were withdrawing their implicit admission that the plaintiffs were owners of the suit land since they had claimed ownership by way of adverse possession. First amendment sought was rejected as being pre- mature and the second amendment was rejected on the ground that the admission cannot be permitted to be withdrawn. 7. I have heard Sh.Ajay Sharma, learned counsel for the petitioners and Sh.Neeraj Gupta, learned counsel for the respondents-plaintiffs. 8. Sh.Ajay Sharma urges that the order of the Settlement Collector has now become final and even this Court had rejected the petition challenging the correction in CWP No.899 of 2006 titled Mool Raj Vs. 5 State. His next contention is that the law with regard to amendment of the written statement is very liberal and the written statement can be permitted to be amended even when inconsistent grounds are taken. 9. In support of his contention, Sh.Sharma has placed reliance on the judgment of the Apex Court in Gajanan Jaikishan Joshi Vs. Prabhakar Mohan Lal Kalwar 1990 (1) SCC 166. In this case, the Apex Court held as follows:- “In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the plaintiff- appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only one averment required under Section 16(c) of the Specific Relief Act to be made in a plaint in a suit for specific performance which was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustice to the respondent on that account arose. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would 6 cause him an injury which could not be compensated in costs.” 10. Sh.Sharma has also placed reliance on Estralla Rubber Vs. Dass Estate (P) Ltd. 2001 (8) SCC 97 wherein the apex Court held as follows:- “It has not been shown how the proposed amendment prejudiced the case of the plaintiff. It is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. The proposed amendment is to elaborate the defence and to take additional plea in support of its case. Assuming that there was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendment, it is clear that it is required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. From the records, it cannot be said that any new defence was sought to be introduced. Even otherwise, it was open for the defendant to take alternative or additional defence. Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to the plaintiff so as to take away any accrued right, the application could not be rejected. At any rate, it cannot be said that allowing the amendment caused irretrievable prejudice to the plaintiff. Further, the plaintiff can file his reply to the amended written statement and fight the case on merits.” 7 11. As far as the first amendment sought is concerned, the learned Trial Court erred in not allowing the amendment. Even if the order of the Settlement Officer had not attained finality, it was an order operating at that time. In any event, the said order has become final and, therefore, this amendment should have been allowed. 12. It would also be pertinent to mention that this amendment is necessary for a proper adjudication of the dispute between the parties since the identity and area of the land which is the subject matter of the litigation must be clear and unambiguous. Once the correction had been made and the land of Khata No.58 reduced, this change would affect all the share holders of that khata number and the amendment should have been allowed. 13. As far as the second amendment sought is concerned, the approach of the learned Trial Court is totally erroneous. It is the plaintiffs who have come to the Court claiming that they are owners in possession of the suit land. The defendants have denied their ownership or possession over the suit land. It was for the plaintiffs to prove their case and if while 8 appearing in the witness box, they made a statement which prima facie shows that the manner in which they acquired the land is not legal then the defendants cannot be prevented from raising such an objection by way of amendment of the written statement. The basic dispute which is to be decided is whether the plaintiffs are owners in possession of the suit land. Merely because the defendants have not filed any counter-claim is no ground to reject such prayer. 14. In view of the above discussion, I am of the considered view that the learned Trial Court erred in rejecting the application for amendment. The amendment was necessary to decide the controversy between the parties. Hence the amendment is allowed. The parties through their counsel are directed to appear before the learned Trial Court on 9.5.2011. The learned Trial Court shall make an endeavour to decide the matter at the earliest and in any event not later than 31st March, 2012. The Registry is directed to send the record of the learned Trial Court back so as to reach well before the date fixed. 9 15. Both the petitions are disposed of in the aforesaid terms. No order as to costs. April 7, 2011 ( Deepak Gupta ) (m) Judge