Case: Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha &amp; Others

appellant on the facts of this case. In the last case this Court said:"If in dealing with a question of fact that first appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure under Section 100 (1)(c). The same view has been expressed in Ladli Prasad Jaiswal, v. Karnal Distillery Co. Ltd. (1964) 1 SCR 270 = (AIR 1963 SC 1279 ). In this case the High Court has upset a finding of fact recorded by the lower appellate court inter alia on the ground that the burden of proof was wrongly placed on the plaintiff. Shah J., while affirming the judgment of the High Court, said:"A decision of the first appellate court reached after placing the onus wrongly...is not conclusive and a second appeal lies to the High Court against that decision. 9. In Jai Krishna v. Babu, AIR 1933 Nag 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant. 10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement."12 (a) that the gift deed dated 18-1-1954 was executed by Smt. Rajrani who was a limited owner having a widows estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No. 5. The plaintiff can- not have any rights in the suit lands after the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff. (b) that the genealogy of the family is as under. "12(c) that the deceased Smt. Rajrani could not transfer the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer is not binding on the defendant after he death. 11. He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statement. Sri Tarkunde has submitted that if the assertions made in the new paragraph 12 are accepted by the Court, the respondents suit will have to be dismissed. It is also said that the new situation arising on the death of Smt. Rajrani during pendency of the appeal can be considered by the Court in order to mould the decree in the suit out of which this appeal has arisen. In our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties. (See Rai Charan v. Biswanath, AIR 1915 Cal 103). 12. Sri Chagla counsel for the respondent, has submitted that the application for amendment of the written statement should not be allowed. It is said that the appellant has alleged in his written statement that Smt. Rajrani could not transfer the disputed land as she was a limited owner having a widows estate. The trial Court had framed a specific issue on this aspect and recorded a finding against the appellants. The trial Court said:"Smt. Rajrani is a Jain widow and therefore she is competent to transfer the suit lands for religious and charitable purposes. The trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation. 13. Sri Chagla has also pointed out that the respondent has acquired new rights under the Land reform measures passed by the Madhya Pradesh Legislature. It will be open to the respondent to file a reply to the amendment when the case goes back to the trial Court and raise any plea which according to it is likely to defeat the appellants new claim.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. The first appellate court has held that Shikharchand was in possession over the disputed land since 1937 and has become the owner thereof by adverse possession before Smt. Rajrani transferred the land to the plaintiff. Sri Tarkunde, counsel for Shikharchnd, says that it is a finding of fact and that accordingly the High Court could not interfere with it in second appeal. It appear that the High Court was aware that it was interfering with a finding of fact in a second appeal. So the High Court has explained7. The High Court has considered afresh the entire evidence on record and has held that Shikharchand has failed to establish by positive evidence his adverse possession for more than 12 years. The appellant could not show to us that the finding is not sustainable on the evidence on record. It is not necessary for us to reappraise that evidence again, but we may point out two circumstances which heavily tell against the appellant. Assuming that his adverse possession started in 1937 and continued till 1949, he became the owner of the land in dispute in 1950. Nevertheless he did not move the appropriate revenue authority for the correction of the entries in the record of rights. He did not get the name of Smt. Rajrani expunged from the record and his name entered therein. Again, Beni Ram, one of his witnesses, has admitted that Shikharchand had been paying rent of the sir land of Smt. Rajrani on behalf of Smt. Rajrani until 1958-59. Had he become an-owner by adverse possession in 1950, he would never have paid rent on behalf of Smt. RajraniIn our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties9. In Jai Krishna v. Babu, AIR 1933 Nag 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement"12 (a) that the gift deed dated 18-1-1954 was executed by Smt. Rajrani who was a limited owner having a widows estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No. 5. The plaintiff can- not have any rights in the suit lands after the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff(b) that the genealogy of the family is as under"12(c) that the deceased Smt. Rajrani could not transfer the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer is not binding on the defendant after he death.He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statementIn our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the. (See Rai Charan v. Biswanath, AIR 1915 Cal 103)The trial Court had framed a specific issue on this aspect and recorded a finding against the. The trial Court said:"Smt. Rajrani is a Jain widow and therefore she is competent to transfer the suit lands for religious and charitable purposes.trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation.