Raj Kishore(Dead)By Lrs vs Prem Singh And Ors

2. Late Shri Raj Kishore the predecessor-in-interest of the plaintiffs-appellants herein owned jointly with his brother defendant-respondent no.2 Shri Jugal Kishore agricultural land situate in different survey numbers of village Morasa, Tehsil Kurwai in the State of Madhya Pradesh. In terms of a sale-deed executed and registered on 6th July, 1974 by Shri Raj Kishore an extent of 14 bighas and 15 biswas of the land aforementioned from out of survey nos. 436, 439/1 and 441 was transferred to the defendant-respondent no.1 for a sum 3 of Rs.6,000/- only. The plaintiff's case is that the transfer was only by way of security for the repayment of Rs.6,000/- which according to the plaintiff was taken only as a loan. The plaintiff's further case is that return of the loan amount by the 6th July, 1981 would result in the land in question being transferred back to the plaintiff to which effect an agreement was also executed between the parties to the transaction on the 6th July, 1974 itself. The plaintiff alleged that the possession of the land in question continued with him and defendant no.2 as agreed. It was also agreed between the parties that defendant no.1 shall not get the disputed land mutated in their name till 6th July, 1981, the date by which the plaintiff could repay the amount of loan and secure the return of their land.

6. Aggrieved by the dismissal of the suit the plaintiff appealed to the District Judge, Vidisha, M.P. During the pendency of the said appeal the plaintiff filed an application 6 for permission to amend the plaint to add an alternative prayer to the effect that in case the sale-deed in favour of defendant no.1 was held to be validly executed, the plaintiff be given a decree for specific performance by execution of a sale-deed for the transfer of the suit property in his favour. This application was allowed by the Trial Court but in revision the same was set aside and the amendment application directed to be considered along with the main appeal.

7. The First Appellate Court accordingly heard the appeal and the application for amendment together and by its judgment and order dated 19th July, 1995 dismissed both. The First Appellate Court held that the prayer for amendment of the plaint to seek a decree for the transfer of the land in question in favour of the plaintiffs-appellant was time barred and that the amendment would in any case alter the nature of the suit.

9. Aggrieved by the judgment aforementioned the plaintiffs-appellants filed second appeal No.230 of 1995 before the High Court of Madhya Pradesh, Gwalior Bench. The High Court held that the dismissal of the application for amendment by the First Appellate Court on the ground that the prayer sought to be incorporated by the amendment was barred by limitation was not correct. All the same the proposed amendment would make no material difference unless the plaintiff also pleaded that he was ready to perform his part of the contract so as to entitle him to any relief based on the agreement executed between the parties. The dismissal of the application was on that ground upheld.

345), Bismillah Begum (Smt) Dead by Lrs. v.

23. In the result this appeal fails and is hereby dismissed but in the circumstances without any order as to costs.