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

1. It the defendants appeal. The plaintiff Digamber Jain Praband Karini Sabha, Panagar, instituted a suit against the defendant Shikharchand Jain for recovery of possession over certain agricultural lands situate in mauza Imlai, Smt. Rajrani, fifth defendant (now dead) was the proprietor of a Patti in mauza Imalai. The land in dispute fell in that Patti. It was her sir. The area of the land is 12.86 acres. Smt. Rajrani became malik maqbooza of the land on the abolition of the proprietary rights in the State in 1951.On January 18, 1954, she gifted the land by a registered gift deed in favour of the plaintiff (which is registered under the Madhya Pradesh Public Trust Act, 1951). Ram Das and Ballu, the third and fourth defendants were cultivating the land. The plaintiff instituted a suit against them on July 15, 1954. In the said suit they pleaded that Shikharchand had sub-let the land to them. The suit was decreed. Their appeals were dismissed on May 4, 1957, Shikharchand and also instituted a suit on November 3, 1955 against the plaintiff and Smt. Rajrani for a declaration that the gift made by her would be void after her death. We are told that the suit has been dismissed in default. As the aforesaid defendants are disputing the plaintiffs title, the suit was instituted. All the defendants except. Smt. Rajrani filed a joint written statement. They denied the plaintiffs title to the land. Smt. Rajrani held a limited estate in the land and the gift deed would be ineffective after her death. She could not gift the entire property. Shikharchand has been in possession over the land since 1937 as an owner thereof and has acquired rights of an owner by adverse possession for more than 12 years. Smt. Rajrani filed a separate written statement. She has supported the case of the plaintiff.2. Issue No. 1 was answered in favour of the plaintiff. Issue No. 4 was answered against Shikharchand. The trial Court held that he was in possession for and on behalf of Smt. Rajrani and not in his own right. The trial court granted a decree for possession to the plaintiff3. Defendants Nos. 1 to 4 went in appeal. The first appellant court allowed the appeal and set aside the decree of the trial court and dismissed the suit. The plaintiff then filed a second appeal in the High Court of Madhya Pradesh. The High Court has reversed the decree of the first appellate court and restored that of the trial court. Hence this appeal by Shikharchand

Reasoning: 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.