HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 75 OF 2004 Umesh Chandra Mishra. ……Plaintiff/Appellant. Versus Hari Singh ……..Defendant/Respondent. 7.4.2008 Hon’ble Rajesh Tandon, J. Heard Sri R.C. Upadhayay, counsel for the appellant and Sri P.C. Bisht, counsel for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 2.9.2004 passed by the District Judge, Almora in Civil Appeal No. 3 of 2004 Umesh Chandra Vs. Hari Singh arising out of judgment and decree dated 28.4.2004 passed by the Civil Judge (Senior Division) Fast Track Court, Almora in Original Suit No. 4 of 2000 Umesh Chandra Mishra Vs. Hari Singh. 3. Present second appeal has been admitted on the following substantial questions of law: “1. Whether, the courts below have erred in law in dismissing the suit on the ground of vagueness, after rejecting the application for amendment to clarify the particulars in the plaint? 2. Whether, the courts below have erred in law in dismissing the suit, ignoring the registered sale deed relied by the plaintiff?” 2 4. Briefly stated, a suit was filed by the plaintiff / appellant being Original Suit No. 4 of 2000 Umesh Chandra Mishra Vs. Hari Singh praying to the following effect: “fygktk vtZ gS fd fMdzh cgd oknh f[kykQ izfroknh bl izdkj nh tk;% ¼v½ fd izfroknh ds f[kykQ LFkkbZ fu"ks/kkKk tkjh dk tk; fd og oknh dh [kjhnh Hkwfe xzke nqxky[kksyk iV~Vh [kklitkZ vYeksM+k tks [k0[kk0 la0 92 esa ntZ gS esa fdlh fdLe dh eqtkger o n[kyUnkth djus ls ges’kk ds fy, ckt jgsA ¼c½ fd [kpkZ eqdnek ftEes izfroknh gksAÞ 5. According to the plaint averments, plaintiff / appellant by a registered sale deed dated 25.2.2000 purchased One Nali and Four Mutthi land frokm Khatauni Khata No. 92 situated in Village Dugalkhola, Patti Khas Parja, Almora. According to the plaint averments, Harish Singh, Ratan Singh, Bhim Singh, Rajendra Singh and Sandeep Singh, sons of late Pan Singh were Bhumidhar of aforesaid Khata and Sri Mahesh Parihar, Advocate was their registered Mukhtare Aam. The sale deed was executed by Mukhtare Aam Mahesh Parihar on behalf of Khata Holders and from the date of the sale deed, the plaintiff became the owner in possession of aforesaid area of One Nali Four Mutthi of Khata No. 92. He demarcated the land by barbed wire, but on 4.3.2000, the defendants uprooted the angels destroyed the barbed wire and threatened to dispossess the plaintiff. Hence, the plaintiff filed the suit for permanent injunction with respect to One Nali Four Mutthi land of Khatauni Khata No. 92. 6. The defendants have contested the suit on the ground that the plaint is vague, plaintiff did not possessed the alleged area because the same was already in possession of 3 others and in the garb of the sale deed, he wanted to take over possession of defendant’s Plot Nos. 8718, 8719 and 8720. It has further been stated that the defendants gave a notice to the plaintiff, but he filed this suit with false allegations. 7. On the pleadings of the parties, the trial Court has framed the following issues: “1& D;k oknh fookfnr Hkwfe dk ekfydk dkfct ,oa n[khy gS\ 2& D;k nkoh Hkwfe dk nkos ls Li"V fooj.k u gksus ds dkj.k nkok [kkfjt fd;s tkus ;ksX; gS\ 3& D;k oknh dks okn dkj.k izkIr gS\ 4& oknh fdl vuqrks"k dks izkIr djus dk vf/kdkjh gS\Þ 8. Plaintiff has filed copy of Khatauni of Plot No. 92, map of Village Dugalkhola, his registered sale deed in original, copy of notice, his registered sale deed in original, copy of notice, its registry receipt. The plaintiff has also filed thecopy of the statement of Har Singh and report of Kanoongo dated 24.3.2000 and has examined himself as P.W.1 and Sri Mahesh Parihar as P.W.2. 9. On the other hand, the defendant has examined one Amin Sheri Ram as D.W.1, himself as D.W.2 and one labourer Veer Singh as D.W.3 and has filed copy of notice besides other documents like Khatauni etc. 10. While deciding the issue no. 1 as to whether the plaintiff is owner in possession of the land in dispute, the trial Court has recorded the finding that the plaintiff has failed to prove his case as to which land he had purchased by sale deed, therefore, no question arises as to who is in possession of the 4 land in dispute. This issue has been decided against the plaintiff. 11. While deciding the issues no. 2 and 3 as to whether the suit is liable to be dismissed on account of unidentification of the land of the plaintiff, the trial Court the trial Court has placed reliance on the statement of P.W.1 and has recorded the finding that there is contradictory stand taken by the plaintiff and nothing has been said regarding the disputed plots in question. Relevant portion of the finding is to the following effect: “oknh }kjk tks vius c;kuksa esa [kjhn’kqnk tehu esa tks pkSgnh fn[kk;h x;h gS og Hkh Hkzfer gS dHkh oknh [kjhn’kqnk tehu ds Åij dh vksj eksVj jksM vkSj nwljh vksj edku nqxky[kksyk esa crkrk gS fQj dgk fd edku eky xkao esa cuk gSA tehu dh nf{k.k dh vksj dqN ugha gS fQj dgk fd nf{k.k dh vksj dqN edku cus gSa bl izdkj oknh dks Lo;a bl ckr dh tkudkjh ugha gS fd mlds }kjk tfj;s c;ukek [kjhnh x;h tehu dh pkSgnh D;k gS Li"V :i ls oknh u rks vius okn i= esa vkSj u gh vius c;kuksa esa fookfnr tehu ds iS0 ua0 dk gh mYys[k fd;k gSA nh0iz0 la0 vkns’k &7 fu;e 3 ds vuqlkj tgka okn gh fo"k;oLrq vpy lEifRr gS ogka okn i= esa lEifRr dk ,slk vfHko.kZu vUrZn`"V fd;k tkuk pkfg, tks mldh ifgpku ds fy, i;kZIr gks ;fn ,slh lEifRr dh ifgpku Hkwfe ifjeki cUnkscLrh vfHkys[k esa lhekvksa ;k la[;kvksa }kjk dh tk ldrh gS rks okn esa ,slh lhekvksa ;k laLFkkvkas dk mYys[k fd;k tkuk pkfg;s oknh fookfnr tehu dks tfj;s fodz; i= fd;k tkuk crkrk gS vkSj oknh }kjk fodz; i= 10d i=koyh esa layXu fd;k x;k gSA fodz; i= esa mfYyf[kr fookfnr tehu dh tks iSekb’k uEcj gS mldk mYys[k oknh }kjk vius okn i= esa ugha fd;k x;k gSa vkSj u gh vius c;kuksa esa Li"V :i ls mfYyf[kr fd;k gS fd mlus 5 fookfnr tehu dks fdl iSek;’kh uEcj dks tfj;s fodz; i= [kjhnk x;k gSA bl izdkj oknh }kjk fookfnr lEifRr dk Li"V :i ls u rks vius okn i= esa vkSj u gh vius lk{; esa of.kZr fd;k x;k gSA bl izdkj oknh dk nkok vLi"V gSA vr% ;g okn fcUnq ,rn~uqlkj izfroknh ds i{k esa fuf.kZr fd;k tkrk gSAÞ 12. The trial Court has recorded a finding that since the plaintiff has failed to prove his case regarding the land in dispute. This issue has been decided accordingly. 13. Against the aforesaid judgment and decree, the plaintiff preferred an appeal being Civil Appeal No. 3 of 2004 Umesh Chandra Mishra Vs. Hari Singh. 14. The appellate Court has confirmed the findings recorded by the trial Court and has dismissed the appeal. Relevant finding recorded by the appellate Court is to the following effect: “26. In these circumstances, even if a remand order is passed with direction to appoint fresh Survey Commissioner, no purpose would be served. Since the sale deed is vague, the plaint was drafted vaguely without any scope, to remove the vagueness in view of the vague basis of suit itself, the decisions referred to by the learned counsel for the appellants is of no help to the plaintiff either. 27. The matter may be examined from another angle also. One of the ways to adjudge the vagueness of the plaint is if the entire plaint’s averment is accepted whether an executable decree could be passed? If not then certainly the plaint is vague. In the case under hand, since length and width of the area marked in the map attached to the sale deed has not been given and how much area was takne from individual four plots 6 numbers referred to is not given, the decree if passed on the basis of such map attached to the sale deed then the decree would not be executable. Thus, from this angle also, the plaint is vague. As discussed above, the vagueness could not be removed even by evidence available on record. Consequently, the learned Trial Court has rightly decided the issue No. 2 against the plaintiff and in favour of the defendant. 28.………….It is well settled that the purpose of mutation is to identify the person who is liable to pay the land revenue. Thus, the mutation in favour of plaintiff ipso-facto is no evidence of possession. Same is position with other revenue records. Not a single person of the village could be produced by the; plaintiff to prove the possession of his vendor or his own. It is the settled law that on sale, a vendor cannot pass a better title then what he holds. Consequently, if the Mukhatar Aam or for that matter the recorded Bhumdihars were not in actually physical possession of the disputed area, then, they cannot pass a better title or can pass and deliver possession to the plaintiff. On the other hand, there is a positive evidence on record of D.W.2 to the effect that the disputed land is in possession of other persons and he has no concern with disputed land. It further appears from the record that defendant took a Amin to verify his own land and in the process, the Amin also verified the disputed land. But his report Ex. A-1 is of no help to the plaintiff. Although, the learned counsel for the plaintiff placed reliance on the report of Amin. The report of Amin is no help to the plaintiff because the sale deed of the plaintiff has been found vague and Amin D.W.1 gave no evidence in favour of the plaintiff. Therefore, in my view, from the evidence available on record, the learned Trial Court rightly arrived at the conclusion that the plaintiff was not in possession. Since, the suit was for the permanent injunction (not for dispossession of unauthorized occupants), and to get such a relief, plaintiff has to prove himself in possession which he could not, therefore, the learned Trial 7 Court, in my view, rightly decided the issue No. 1 against the plaintiff and in favouir of the defendant.” 15. Counsel for the appellant has submitted that he has sought the amendment before the trial Court to the following effect:- “oknh izkFkZuk djrk gS & ƒ& fd oknh us izfroknh ds f[kykQ mijksDr okn LFkkbZ fu"ks/kkKk gsrq lafLFkr fd;k gS fd izfroknh dh [kjhnlqnk Hkwfe [krkSuh [kkrk ua0 ƒ„ xzke nqxky [kksyk iV~Vh [kkl itkZ vYeksM+k esa tks izLrqr fodz; i= ds layXu uD’ks esa ,] ch] lh] Mh ls fn[kk;h x;h gS] fdlh fdLe dh etkger o n[kyUnkth djus ds ckt jgsA „& fd mijksDr Hkwfe dk lR;kiu U;k;ky; esa tfj;s losZ dfe’uj djok;k gS rFkk nksuksa i{kdkjksa us fookfnr Hkwfe dks rlnhd fd;k gSA …& fd izfroknh }kjk nkSjku cgl ;g eqn~nk mBk;k fd okn i= esa fookfnr Hkwfe ftlds fy, fMdzh eakxh x;h gS mldk gokyk ugha fn;k x;kgSA pwafd ;g ,d rduhfd deh gS vkSj blls i{kdkjksa ds chp fookn ij dksbZ vlj ugha iM+rk gSA gkykafd okn i= esa Li"V gS fd oknh us tks tehu [kjhnh gS mlds fy, gh mlus fu"k/kkKk ekaxh gSA tcfd oknh ds fodz; i= dks nksuksa i{kksa us rlnhd fd;k gS vkSj U;k;ky; }kjk losZa djk dj ;g rF; lkfcr gks pqdk gS fd oknh fdl tehu ds ckor vuqrks"k pkg jgk gSA fQj Hkh rduhfd deh u jg tk; blfy, oknh okn i= esa fuEu la’kks/ku djus dh btktr pkgrk gSA izLrkfor la’kks/ku ls okn dh izd`fr ij dksbZ izHkko ugha iM+rk gSa vr% izkFkZuk gS fd okn i= esa fuEu izdkj la’kks/ku djus dh vkKk iznku dh tk;A ¼v½ fd okn i= iSjk ua0 ƒ ds vUr esa bl izdkj tksM+ fn;k tk;& ßfd oknh dh [kjhnlqnk Hkwfe tks odhy dfe’uj ds ekSdk uD’kk ua0 ƒ fn0 ƒ&„&„00ƒ esa bZ] ,Q] th] ,p] vkbZ ls fn[kk;h x;h gS vkSj ;g uD’kk okn i= dk Hkkx jgsxkA 8 ¼c½ fd vuqrks"k iSjk ¼v½ ds vUr esa bl izdkj tksM+ fn;k tk;& fd oknh dh [kjhnlqnk Hkwfe odhy dfe’uj ds ekSdk uD’kk ua0 ƒ fn0 ƒ&„&„00ƒ esa bZ] ,Q] th] ,p] vkbZ ls iznf’kZr gSA 16. The said application was rejected on the ground that the Advocate Commissioner’s report cannot be made a part of the plaint and application is belated. The revisional Court also rejected the revision on the same grounds. 17. Counsel for the appellant has placed reliance on the judgment of Pankaja & another Vs. Yellappa (D) By Lrs. & Ors. [2004 (2) JCLR 543 (SC)], by which the revision against the order passed under Order 6 Rule 17 was rejected. Relevant observations of the Apex Court are quoted below: “12. So far as the Court’s jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the Court to allow applications in spite of the delay and latches in moving such amendment application. 13. But the question for our consideration is whethner the inc ases hwere the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments? 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be 9 allowed. Discretion ion such cases depends on the facts and circumstances of the case. The jursidcition to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 15. This court in the case of L.J. Leach and Co. Ltd. & Anr. V. Messr. Jardine Skinner and Co., AIR 1957 SC 357, has held: - “It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not attract the power of the Court to order it, if that is required in the interests of justice.” 16. This view of this Court has since, been flowed by a 3 judge bench of this Court in the case of T.N. Alloy Fouindry Co. Ltd. v. T.N. Electricity Board & Ors, 2004 (1) JCLR 786 (SC): 2004 (3) SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice. 17. Factually in this case, in regard to the stand of the defendant that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation 10 Act, the declaration sought for by the appellants in this case sought to have been done within 3 years when the right to sue first accrued, the appellant – plaintiff contents that the same does not fall under the said Entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years, therefore, according to them the prayer for declaration of title is not barred by limitation, therefore, both the Courts below have seriously erred in not considering the question before rejecting the prayer for amendment. In such a situation a dispute as to the bar of limation this Court in the case of Raju Thilak D. John v. S. Rayappan & Ors. (Supra) has held: “The amendment sought could not be declined. The dominant purpose of allowing declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” 18. We think that the course adopted by this Court in Ragu Thilak D. John’s case (supra) applied appropriately to the facts of this case. The Courts below have proceeded on an assumption that the amendments sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the Courts below that the amendments sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that b 11 the amendment the plaintiff will be introducing a different relief. 19. We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entries 64 or 65 of the Limitation Act which question has to be decided in the trial, therefore, in our view, following the judgment of this Court in the case of Ragu Thilak D. John (supra), we set aside the impugned orders of the Courts below, allow the amendment prayed for, direct the trial Court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J. Leach and Co. Ltd. & Anr. (supra). 18. Counsel for the appellant Sri R.C. Upadhyay has further referred judgment of Bachan Lal Vs. State of Uttaranchal 2003 U.D. 513, where this Court has observed as under: “19. It is a settled law that at the time of allowing the amendment, the Court has only to look as to whether the ingredients of Order VI Rule 17 are satisfied or not. Rule 17 is very much clear it provides that amendment can be allowed at any state of proceedings on such terms as may be just, there is not quarrel with the proposition that the amendment was sought at the trial stage and that too without changing the nature of the suit. 20. Order 6 Rule 17 has been interpreted by the Hon’ble Supreme Court in various decisions and the Apex Court has given guide lines for the law courts that the courts while deciding such prayers should not adopt a hypertechnical view. Aforesaid guidelines have been given by the Apex Court in B.K. Narayan Pillai Vs. Parameswaran Pillai and another (2000) 1 SC Cases 712. It has also been emphasized in the 12 aforesaid decision that technicalities of law should not be permitted to hamper the court in administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled multiplicities of litigation. 21. Admittedly in the present case cause of action which the plaintiff has pleaded in cancellation of patta in his favour, either in the original pleadings or in the amended pleadings he is not changing the cause of action. The cuase of action still is the same i.e. cancellation of patta and he wants to get it declared null and void. Therefore, it is fit case where the observations of the Hon’ble Supreme Court that technicalities of law should not be permited to hamper the court in administration of justice and further that in order to avoid uncalled multiplicity of litigation the amendment has to be allowed. 22. The intention behind the amendment is two fold; one to avoid multiplicity of litigation and another to minimize litigation. In the case Raghu Thilak D. John Vs. S. Rayappan And others (2001)2 SC Cases 472 the Apex Court has held as under: “if the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averment made in paras 8(a) to 8(1) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.” 23. The expression ‘cause of action;’ has also been interpreted in the cause of B.K. Narayan Pillai (supra90 where the apex court after referring the judgment of Cooke Vs. Gill 13 (1873) 8 CP 107 has held that the expression “cause of action” in the present context does not mean ‘every fact which is material to be proved to entitle the plaintiff to succeed’. The relevant observations of the apex court are as under: “The expression ‘cause of action’ in the present context does not mean ‘every fact which it is material to be proved to entitle the plaitniff to succeed’ as was said in Cooke Vs. Gill in a different context, for if it were so, no; material fact could ever be amended or added and, of course no one would want to change or add an immaterial allegation by amendment. The expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson Vs. Unicos Property Corpn. Ltd and it seems to us to be the only possible view to take. Any other view would made the rule futile. The words ‘ new case’ have been understood to mean ‘new set of ideas’ Dornan Vs. J.W. Ellis and Co. Ltd; his also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.” 19. In view of the aforesaid taking into consideration the facts and circumstances of the case, the matter is remanded to the trial Court for deciding afresh. However, the respondents/defendants shall be at liberty to raise objection in the form of additional written statement on the merits of the amendment sought. 20. Consequently, Second Appeal is allowed. No order as to