Allahabad High Court
Sri Thakur Rangji Maharaj Virajman ... vs Sri Om Swaroop on 9 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:83766
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 9597 of 2016
Petitioner :- Sri Thakur Rangji Maharaj Virajman Mandir Thru Manager/Secy
Respondent :- Sri Om Swaroop
Counsel for Petitioner :- H.P. Pandey,Amit Saxena,Raghuvansh Misra
Counsel for Respondent :- S.C.,Ramendra Asthana
Hon'ble Ajit Kumar,J.
1. Heard Sri Devansh Mishra, learned counsel for the petitioner and Sri Chandra Prakash Kushwaha, learned Advocate holding brief of Sri Ramendra Asthana, learned counsel for the respondent.
2. The petitioner before this Court is the sole plaintiff in O.S. No.274 of 1999 pending in the Court of Civil Judge (S.D.), Agra. The suit was instituted for a relief of mandatory injunction for removal of all existing constructions upon the suit land and then restoration of possession of the petitioner being the original title holder. The pleadings raised in the plaint case was in respect of plot No.149 measuring a total land area of 668 sq.yard situate at Mauja Basai Mushtaquil, Tehsil and District- Agra. The written statement was filed in the suit contesting the plaint allegations on the ground that defendant had permissive possession upon the suit land and that constructions were raised as a hotel and further residential accommodations on account of permission granted to the father of the defendant by the plaintiff way back in the year 1970.
3. Thus, it was claimed that defendant started running a school over the parts of property besides hotel and other residential accommodations. In a nutshell, defendant claimed to be licencee. However, defendant did not disclose any area of land of which they claimed to be licencee. In the additional plea, similar stand was taken.
4. The written statement in the suit came to be filed by the defendant only when an order to proceed ex parte came to be recalled by the trial court on 29.10.2009 as the written statement was filed thereafter on 10.03.2010 and 13.04.2010 was fixed for framing of issue.
5. It is worth noticing from the order sheet, while the suit proceedings were going at the stage ofex parte evidence, an order came to be passed on 19.08.2008 accepting the application of the plaintiff petitioner bearing No.60-C for Amin Commission report for the spot situation of the land in dispute. The Amin Commission report was submitted on 17.12.2008 and was taken on record.
6. It transpires further that after the Amin Commissioner conducted survey, the defendants geared up to approach the Court by filing an application for recalling of the ex parte proceedings order. The issues came to be framed on 14.11.2011. It is at this stage that defendant applied for framing of issues as per the pleadings raised in the written statement and so certain more issues came to be framed on 08.11.2012. While the parties had yet not led evidence in the matter that plaintiff-petitioner moved an amendment application stating that certain more areas fall in respect of plot No.149, as has come to be mentioned in the report of the Amin Commissioner and surprisingly the Amin Commissioner has not given any measurement in respect of Plot No. AFGH. It is from the report, as claimed, that it transpires that area upon which the construction has been raised and the disputed land falls in an area north to the disputed property.
7. In other words, the Shyam Hotel place and the residence upon plot no.149 in respect of which the licence is claimed, as an appertinent land, in the form of disputed land is in the south to it. The pleadings to the effect are that the entire land was in the title of the plaintiff and defendants' own pleading is only of a licencee. This amendment application came to be rejected by the trial Court only on the ground that period of limitation is 12 years for dispossession and this extension of pleading would amount to a time barred relief in respect of the extended portion. The order passed by the trial court came to be affirmed in revision.
8. The submission advanced by learned counsel for the petitioner is that land marked as AFGH is the part of the main property and therefore, if the part of the property is sought to be included in the plaint, the relief cannot be held to be time barred. He has placed reliance upon the authorities of the Supreme Court in the case of Harcharan v. State of Haryana; (1982) 3 SCC 408 and the judgment in the case of A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation; (1966) 1 SCR 796.
9. It is further contended by learned counsel for the petitioner that if the suit is prior to the amendment in Civil Procedure Code in 2002, then the amended provision under Order 6 Rule 17 CPC would not be attracted. In this regard, he has placed reliance upon a judgment of Supreme Court in the case of Sumesh Singh v. Phoolan Devi & ors; (2009) 12 SCC 689.
10. Per contra, it is argued by learned Advocate appearing for the contesting defendant-respondent that by virtue of amendment, time barred claim cannot be revived. In this regard he has relied upon a judgment in the case of South Konkan Distilleries & anr v. Prabhakar Gajanan Naik & ors; 2008 14 SCC 632.
11. Having heard learned counsel for the respective parties and their arguments advanced raised across the bar and the pleadings raised before the trial court as well as before this Court, I find that sole issue is, whether by way of amendment application in question petitioner wants to revive a time barred claim.
12. I have perused the plaint allegations as noted above and find that whatever land was there in plot no.149 was claimed to be in possession of the defendant, was claimed by the plaintiff as his own property and defendant only claimed rights as a licencee in his written statement. He claimed to have raised construction because of the permission granted to his father. Thus, it is clear that defendant neither owned a property, nor it was a valid transfer in absence of any document being pleaded in the written statement. It was all claimed to be permissive possession and defence set up so is of a licencee. Whatever area plot no.149, upon which the constructions have been raised, according to the defendants' case, originally belonged to the plaintiff. So, except the plea of licence, the defendants do not have any other defence to set up any title over and above a particular area of plot no.149. The Khatauni that has been brought on record showed the area of plot no.149 to be a very large one and the Amin Commission report does state that the disputed land as originally pleaded in the plaint case, falls south to the Shyam Hotel and the residential area developed by the defendant. This Shyam hotel and resident is marked as AFGH falling in Khasra/plot no.149. No measurement has been given of this land.
13. Now coming back to the pleadings raised in the written statement, I find it to be clearly stated that having obtained licence in the year 1970, defendatns raised constrictions and started doing hotel business in the year 1995 over a part of the said property. Thus, it is clear that the defendant claimed to be licencee not only in respect of the property adjacent to the hotel but also the hotel property and the residential accommodation that has been raised. This plea has also been taken in paragraph 3 of the written statement.
14. It , therefore, can safely be concluded that the property now set up to be incorporated by way of amendment is part and parcel of the disputed property in respect of which title has been set up by the plaintiff and licencee right has been set up by the defendant. Thus, if the property in respect of which amendment is sought to be made in the plaint is part and parcel of the suit property, I do not see any prejudice is going to be caused to the defendant because whatever evidence is to be led, is to be led in respect of the pleadings raised by the respective parties in the suit as no declaration of right is involved and the amendment sought is nothing but relating to the rights in issue to set up by the two rival parties. No separate evidence is required to be led. As a matter of fact, in my considered view, if the property is taken as a suit property by way of amendment also, then it will invite a conclusive adjudication between the parties as to the claim of title by the plaintiff and licencee rights claimed by the defendants.
15. It is well settled law that if the amendment is allowed and it leads to a complete and conclusive adjudication of controversy between the parties, such an amendment should be welcomed. The judgment that has been cited by learned counsel appearing for the respondent is about the time barred claims. Looking further from this point of view, I find that Amin Commission report came to be prepared only on 31.01.2012. Petitioner moved immediately an amendment application on 11.09.2012, therefore, looking to the knowledge part in respect of the suit property, I do not find it to be a time barred claim.
16. Besides above, the suit being of the year 1999, having been instituted on 17.04.1999, the amendment made in Civil Procedure Code in the year 2002, amending the Order 6 Rule 17 of CPC, will not be attracted. This aspect has been dealt with extensively in the judgment of the Supreme Court in the case of Sumesh Singh (supra).
17. Still further I find that the parties have yet not led their evidence because of their own conduct. Defendant filed written statement only in the year 2010 and issues were just framed in 2012. So if the amendment application is allowed, no prejudice is going to be caused to the defendant.
18. Accordingly, order dated 08.10.2012 passed by the Additional Civil Judge (S.D.), Court No.8, Agra as well as order dated 30.07.2014 passed by the court sitting in appeal namely Additional District Judge, Court No.8, Agra are hereby set aside. Amendment application is allowed. Necessary amendment are directed to be carried out by the plaintiff within a month of production of certified copy of this order. Additional issue, if any, be framed within a further period of thirty days.
19. In the given facts and circumstances of the case, as the suit is one of the oldest categories, this Court considers it appropriate to direct for disposal of the suit in following manner:
A) The court concerned shall ensure to frame additional issue, if any, within a further period of 30 days.
B) After the issue is framed, the plaintiff shall conclude his evidence within a further period of two months and the defendants shall cooperate in recording of evidence of plaintiff within the time prescribed by this Court without seeking any unnecessary adjournment and every such adjournment should be visited with the cost, as may be assessed reasonable and appropriate by the court concerned.
C) After evidence of plaintiff is concluded, the Court will proceed to record evidence of the defendants and defendants shall conclude their evidence within the next two months' time and plaintiff shall cooperate in conclusion of the evidence of the defendants within the time prescribed by this Court without seeking any unnecessary adjournment and every such adjournment should be visited with the cost, as may be assessed reasonable and appropriate by the court concerned; and
D) Soon after the conclusion of evidence by the respective parties to the suit, the trial court shall proceed to decide the suit as expeditiously as possible, preferably within next one year.
20. With the aforesaid observations and directions, this petition stands allowed.
Order Date :- 9.5.2024
P Kesari
