Sri Joynarayan Shaw And Ors vs Sri Raj Kumar Shaw
2022 Latest Caselaw 6530 Cal

14.9.2022

Ct. no. 652 sb C.O. 1215 of 2021

Sri Joynarayan Shaw and ors.

Vs.

Sri Raj Kumar Shaw

Mr. Ayan Banerjee Ms. Debjani Sengupta ...for the petitioners

Mr. Dhananjoy Banerjee Ms. Oindrila Ghosh Ms. Ankita Maji ...for the opposite party

Being aggrieved and dissatisfied with the order no.

27 dated 28.5.2021 passed by learned Additional District

Judge, Chandannagar, Hooghly in title appeal no. 21 of

2016, the present application under Section 227 of the

Constitution of India has been preferred.

The petitioner contended that the opposite party

instituted a suit for recovery of khas possession, damage

and injunction against the petitioners which was

registered as title suit no. 97 of 2011, before the learned

Civil Judge, Junior Division, 1st Court, at

Chandannagar. In the said suit the plaintiff/opposite

party herein claimed himself to be absolute owner in

respect of 'kha' schedule property by dint of a deed of gift

dated 21.2.1989 executed by one Sundari kanu and

their right aleady declared in T.S. 22 of 1994 and T.S.

275/1995. The opposite party herein as plaintiff alleged

that the petitioners herein had forcibly illegally

trespassed upon the southern part of the suit property

described as ka-1 property to the plaint and in spite of

several request, the petitioners refused to vacate the suit

property and as such the opposite party herein had

instituted the aforesaid suit. The petitioners herein as

defendants contested the said suit by filing written

statement. In the written statement it was averred by the

petitioners herein that the suit property was erroneously

recorded in the name of Sundari Kanu and that she had

no right title or interest in the suit property and as such

the deed of gift executed by Sundari Kanu in favour of

opposite party is invalid. Additionally they have pleaded

that the petitioner and their predecessors are in

possession of the suit property for more than 90 years

and therefore they have acquired title in the suit

property alternatively by way of adverse possession.

By judgment and decree dated 31st July, 2015, the

learned Civil Judge, Junior Division, 1st Court,

Chandannagar decreed the suit in favour of the

plaintiff/opposite party. Being dissatisfied with the

judgment and decree, petitioner herein preferred title

appeal no. 21 of 2016 challenging the judgment and

decree dated 31st July, 2015, before the court of learned

Additional District Judge, Chandannagar, Hooghly where

it is pending for adjudication.

During the course of hearing of the said appeal,

the petitioners contended that it is now brought to their

knowledge, that the previous lawyer of the petitioners

has misguided them and the vital documents were not

brought on record and as the petitioners being illiterate

and was ignorant about the state of affairs, could not

take appropriate steps during pendency of the suit.

Now the petitioner's contention is that the suit

property was indeed previously owned and possessed by

Sundari Kanu and her name was rightly recorded in RS

record of rights and on 9th June, 1979, by virtue of

registered sale deed being no 784 of 1979, Sundari Kanu

transferred the entire suit property comprising of RS dag

no 101, under khatian no. 43, in favour of Saraswati

Kanu being the predecessor in interest of the petitioner

no. 2. Thereafter, the petitioner obtained certified copy of

the above-mentioned deed on 18th March, 2020 and it is

clear therefrom that Saraswati Kanu was the owner of

the entire property by virtue of sale deed and upon her

demise the property devolved upon her legal heirs. The

bona fide omission of the pivotal fact in the written

statement has deprived the petitioners of a fair

opportunity to prove their ownership and caused

irreparable loss and injury to the petitioner/defendants.

Accordingly, the petitioner herein filed an application

under Order 6 Rule 17 of the Code of Civil Procedure in

the aforesaid pending appeal before the additional

District Judge, Chandannagar praying for giving them

permission to amend the written statement to bring

them that pivotal fact on record which is very much

crucial. The petitioner has also filed an application under

Order 41 Rule 27 of the Code for marking the said

certified copy of the sale deed as exhibit by way of

additional evidence but unless the said fact of transfer

by original owner Sundari Kanu in favour of the

Saraswati Kanu is brought on record by way of

amendment, the appellants/defendants are not in a

position to adduce the additional evidence to prove the

certified copy of the said deed.

Mr. Banerjee , learned counsel appearing for the

petitioners submits that such amendment is very much

essential to adjudicate the real dispute involved in the

matter and thus, it goes to the very root of the case.

Learned trial judge erred in exercising the jurisdiction

vested upon him by not allowing the petitioner to carry

out the necessary amendment to incorporate the factum

of exercise of a prior title which is necessary and

interlinked with the defence of the defendant and he was

erred in holding that if the proposed amendment if

allowed, it would amount to withdrawal of admission and

such defence may be inconsistent. Learned trial court

further failed to appreciate that the defence of adverse

possession may be inconsistent with a defence of

absolute ownership but they are not mutually

destructive and as such there is no bar in allowing the

amendment to incorporate alternative case by the

appellant. Learned court below also failed to appreciate

that the implication of the sale deed is very much

relevant for determination of the ownership of the parties

and existence of such instrument is not a new defence

being created by the petitioners but an act of bringing

the fact to this case. Trial court also failed to appreciate

that sale deed was not within the knowledge of the

petitioner and in any case, the discovery of such

document being a subsequent event, the amendment

should have been allowed because it is settled position of

law that bona fide omission of necessary amendment

ought to be brought on record if it is required to

determine the real question in controversy and if allowed

it will no way displace the case of the plaintiff. In this

context, he relied upon case laws reported in (2006) 6

SCC 498, (1998) 1 SCC 278 and (1976) 4 SCC 328 in

support of his contention that even an inconsistent plea

can be allowed if it is required to determine the real

controversy between the parties.

Learned counsel for the opposite party Mr.

Dhananjay Banerjee submits that proposed amendment

if allowed it would amount to withdrawal of admission

which was made by the defendants in their written

statement. In this context, he has pointed out the

averment made by the petitioners/defendants in their

written statement in para-7 wherein the petitioner

plaintiff has categorically stated that the Sundari Kanu

was not an absolute owner of the suit property and she

had no right to execute or register the deed of gift in

favour of the plaintiff. Moreover, in para-8 the petitioner

defendant has contended that one Bharti Kundu (Saha)

got settlement of 5 kattas of land and he constructed

straw shaded rooms and started living therein and

"Patta" and "kabulati" were granted. Furthermore in

para-9 they have also contended that the name of

Sundari Shaw has been erroneously recorded in the

record of rights and she has not acquired any right title

and interest in the suit property .

Now by way of amendment they want to

incorporate the completely in consistent new case which

discloses that the Sundari Kanu was absolute owner of

the suit property and her name was correctly recorded in

the record of rights and said Sundari Kanu sold the suit

property by registered sale deed being 784 of 1979 in

favour of Saraswati Kanu at a considerable price of Rs.

3,000/- and put her in possession of the same and said

Saraswati Kanu is residing there along with her family

members till date. He contended that said amendment

cannot be allowed at the appellate stage and in this

context, he has relied upon the case laws reported in

AIR 2008 SCW 4113 and AIR 2009 SC 2544 and also

AIR 1998 SC 618 in support of his contention that the

admission made in the written statement cannot be

allowed to be withdrawn specially when the defendant

has taken the plea in the written statement that Sundari

Kanu was not the owner of the suit property and her

name was erroneously recorded in the record of rights.

He further submits that the defendants/petitioners

earlier filed suits being no. 22 of 1994 and 275 of 1995

for declaration of their title which were dismissed by

judgment and decree passed in those suits, against

which the defendant/petitioners preferred appeal, which

is still pending for disposal.

      In   view   of   the   judgment   reported    in   M/s.

Revajeetu     Builders       and   Developers      vs.   M/s.

Narayanaswamy and Sons and ors. reported in (2009)

10 SCC 84 the apex court had laid down the factors to

be taken into consideration while dealing with the

applications for amendment after critically analysing

both the Indian cases and English cases. The factors

may be reproduced below:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

In view of the aforesaid observation made by the

apex court let us see whether the proposed amendment

can be allowed or not.

In response to the question as to whether the

amendment sought for is imperative for proper and

effective adjudication of the case, answer is "yes" simply

because the issue in controversy is whether plaintiff

became owner by way of deed of gift executed by Sundari

Kanu in the year 1989 or defendants predecessor

become owner by way of registered purchase deed in the

year 1979. Unless the amendment is incorporated the

real question in controversy as to who is the owner of the

suit property cannot be adjudicated.

Now whether the application for amendment is

bona fide or mala fide, learned counsel appearing on

behalf of the plaintiff/opposite party has not brought

anything in the record to show that the proposed

amendment is not bona fide or mala fide .Moreover from

the conduct of the defendants/ petitioners, it appears

that the application for amendment was made bona fide

because if it was known to the petitioners that their

predecessor has become owner of the property by way of

sale deed in the year 1979, they must not have initially

taken the defence in the written statement that they

have acquired title in the suit property by way of adverse

possession. As regards the next point that is whether the

amendment would cause such prejudice to the other side

which cannot be compensated adequately in terms of

money, does not arise in the present context because the

proposed amendment is required to determine the real

controversy between the parties and as such causing

prejudice to the other side which cannot be compensated

adequately in terms of money does not arise. On the

contrary refusal of proposed amendment may lead to

multiplicity of proceedings because the trial court has

already held on the basis of plaintiff's deed that the

plaintiff is the owner of the property. Now defendants

alleged earlier deed if not brought on record in this suit

or appeal by way of amendment, obviously it would lead

to multiplicity of proceedings.

Now as regards the point as to whether the

proposed amendment would fundamentally change the

nature and character of the case, the answer still is "no",

because proposed amendment if allowed suit will remain

suit for determination of title in the suit property that is

whether the plaintiff is the owner of the suit property or

defendant has become owner of the suit property prior to

the plaintiff. The question of barring the proposed

amendment by way of limitation does not arise in the

present case.

Considering the aforesaid factors, which are

necessary to be taken into consideration while disposing

of the application for amendment, it appears to me that

though defendant by way of amendment wants to

incorporate inconsistent plea namely initial plea that

Sundari Kanu was not owner and her name was wrongly

recorded to a plea that Sundari Kanu was real owner

and her name was correctly recorded, but such

inconsistent plea is required to be allowed for the

adjudication of the real controversy between the parties

as stated above.

Having considered the aforesaid facts, the

impugned order no. 26 dated 28.5.2021 is hereby set

aside. Prayer for amendment of the written statement as

sought for by the defendants/petitioners is allowed. The

defendant is directed to amend the written statement as

per schedule of the amendment petition and to file

amended written statement before the court below within

a period of four weeks from the date of the

communication of the order.

Accordingly, C.O. 1215 of 2021 is disposed of.

Urgent Photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)