Pramod Kumar Jain & Anr vs Ramesh Kumar Jain
2011 Latest Caselaw 2689 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Pronounced on: 19.05.2011

+             IA No. 187/2011 (Order 6 Rule 17) in
                     CS(OS) No. 2179/2010


PRAMOD KUMAR JAIN & ANR                           ..... Plaintiffs

                               - versus -

RAMESH KUMAR JAIN                                  ..... Defendant

Advocates who appeared in this case:

For the Plaintiff:      Mr. A.K. Singla, Sr. Adv. with
                        Mr. J.K. Sharma, Adv.

For the Defendant: Mr. Navin Chawla, Mr. Gaurav Kaushik
                   and Mr. Tushar Singh, Advs.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                             No

2. To be referred to the Reporter or not?                      No

3. Whether the judgment should be reported                     No
   in Digest?

V.K. JAIN, J. (ORAL)

1. This is an application filed by the defendant for

amendment in the written statement. The defendant wants to

add the following paragraph to the written statement:-

"5A. That in any case, the present suit is

barred by the law of limitation as it has been instituted 12 years after the possession of the defendant through his predecessor-in-interest namely Shri J.R. Jain became adverse to the plaintiffs."

2. The case of the plaintiffs is that they are the co-

owners of the property no. 26, Friends Colony (West), New

Delhi-110065 along with Smt. Niti Jain and Smt. Ram Kali

Jain. This is also their case that Late Shri J.R. Jain, father of

the defendant was appointed as attorney of the plaintiffs in

respect of the aforesaid property and power of attorney has

since been cancelled. This is also their case that the defendant

is in occupation of a portion of the suit property as a family

member of another co-owner Smt. Ram Kali Jain and this was

admitted by him in a suit for partition of the suit property filed

by another co-owner Smt. Niti Jain. It is also alleged that that

the licence of the plaintiff has been terminated by the plaintiffs

and therefore, he cannot continue in possession of the portion

occupied by him in the suit property.

3. A perusal of the written statement would show that

the case of the defendant is that the suit property i.e. property

no. 26, Friends Colony (West), New Delhi-110065 was

purchased by the joint family consisting of his father Late Shri

J.R. Jain and his three brothers namely Late Dr. R.N. Jain,

Late Shri S.R. Jain and Shri N.L. Jain. A number of other

properties are stated to have been purchased by the aforesaid

joint family consisting of Late Shri J.R. Jain and his three

brothers. It is also alleged that in order to avoid disputes

between the families, it was orally decided amongst Late Shri

J.R. Jain and his brothers and with the blessing of their father

Late Shri Uddham Singh Jain, that the property no. 26,

Friends Colony (West), New Delhi shall be occupied and shall

belong to Shri J.R. Jain and his family; the house at 14, Alipore

Road, Delhi shall be owned and enjoyed by Dr. R.N. Jain and

Shri S.R. Jain and their families; and the property at Kolkata

will be enjoyed by Shri N.L. Jain and his family.

It is further alleged that the above referred family

settlement was duly implemented and the four brothers and

their families continue to enjoy the properties in terms of the

said settlement. It is also claimed that as far as the family of

Shri J.R. Jain is concerned, a further oral family settlement

took place whereby it was decided that in the property at

Friends Colony, Smt. Ram Kali Jain (wife of Late Shri J.R. Jain

and mother of the defendant), Shri Raj Kumar Jain (elder

brother of the defendant), Shri Ramesh Jain (the defendant

himself) and Late Shri Mukesh Jain (brother of the defendant)

and Shri Rakesh Jain (another brother of the defendant) would

have an equal share.

It is also alleged that since formal recording of transfer

of titles would have required lot of documentation and

expenditure, the oral family settlement was given effect to in

various forms like exchange of gift deeds between Smt. Ram

Kali Jain with regard to the property at Alipore Road in favour

of Smt. Sushila Jain (wife of Shri S.R. Jain) and the one

executed by Shri Sushil Kumar Jain (son of Shri S.R Jain) in

favour of Smt. Ram Kali Jain in respect of the suit property at

Friends Colony. Similar transactions are pleaded in respect of

various companies like Jain Export Pvt. Ltd., Ajanta Tubes and

Pasupati Spinning and Weaving Mills Ltd. It is also claimed

that Late Shri J.R. Jain was dealing with all authorities

including MCD in respect of the suit property.

4. It is thus evident that the case of the defendant, as

pleaded in the written statement, is that he is one of the co-

owner of the suit property, which had fallen to the share of the

branch of his father Late Shri J.R. Jain in the family settlement

which took place amongst Shri J.R. Jain and his three

brothers. By way of the proposed amendment, the defendant

wants to claim that the suit is barred by limitation having been

filed more than 12 years after the possession became adverse

to the plaintiffs. Thus, on the one hand, the defendant is

pleading co-ownership of the suit property whereas on the

other hand, by way of proposed amendment, he wants to claim

that his possession was adverse to the plaintiffs meaning

thereby that the plaintiffs were the owners and his possession

was hostile and adverse to them.

5. The law of amendment of pleadings in our country is

rather liberal in nature the legal proposition being with an

amendment should ordinarily be allowed unless it is likely to

prejudice the opposite party or is likely to take away a vested

right which has accrued to the opposite party provided the

opposite party can be compensated in terms of cost. Errors or

mistakes, if not fraudulent, should not be made a ground for

rejecting the application for amendment of plaint or Written

Statement. If there is no undue delay, no inconsistent cause of

action is introduced and no vested interest or accrued legal

right is affected and the application for amendment is not mala

fide or will not prejudice the opposite party, the amendment

should ordinarily be allowed.

6. The question as to whether such a plea can be taken

by way of amendment to the written statement came up for

consideration before the Division Bench of this court in FAO

(OS) No. 634/2009. In that case, a Will executed by Smt.

Abnash Kaur was set up by the plaintiff. In his written

statement, the appellant did not dispute the Will. He however

claimed superior rights as a subrogatee mortgagee in

possession of the property and as a tenant with a right of

subletting in the property. He thus claimed possession of the

property as a co-owner, as a subrogatee-mortgagee in

possession and as a tenant.

The defendant sought amendment in the written

statement in order to plead that he has been in adverse

possession of the property for a period of more than 12 years

before the filing of the suit and therefore, title of the plaintiff

had been extinguished by virtue of limitation and he was its

absolute owner. The amendment was disallowed by a learned

single Judge of this court.

Rejecting the appeal filed by the defendant, the

Division Bench of this Court relying upon the decision of the

Supreme Court in L.M. Aswathama vs. P. Prakash (2009) 13

SCC 229, held that the plea of adverse possession sought to be

taken by the defendant was mutually destructive to the plea of

possession as co-owner, as a subrogatee-mortgagee and as a

tenant. It was noticed that the adverse possession does not

begin to operate until title is renounced and unless the person

possessing the property has the requisite animus to possess

the property hostile to the title of the true owner.

7. In Steel Authority of India vs. Union of India,

2006 (12) SCC 233, the workmen before the labour court had

taken a stand that they had been working under the

contractors, they also wanted to plead that they were also the

workmen of the principal employer. Supreme Court was of the

view that to raise such a mutually destructive plea is

impermissible in law and such a mutually destructive plea

should not be allowed to be raised even in industrial

adjudication.

8. In Sarva Shramik Sangh vs. Indian Oil

Corporation Ltd. and Ors., AIR 2009 SC 2355, the Supreme

Court observed that mutually repugnant and contradictory

pleas, destructive of each other may also not be permitted to be

urged simultaneously by a plaintiff/petitioner, though

alternative plea can be taken when there is no inconsistency in

the facts alleged.

9. In the case before this court also, since the defendant

has already pleaded co-ownership. Plea of ownership and the

plea of adverse possession now sought to be taken by way of

proposed amendment are mutually destructive and both of

them cannot be allowed to stand together. Law permits the

defendant to set up alternative and in some cases even

inconsistent pleas, but, not the pleas which are mutually

destructive of each other. The application therefore, is liable to

be dismissed on this short ground alone.

10. The learned counsel for the defendant states that the

plea of adverse possession has been necessitated on account of

the case of the plaintiffs that one of them had revoked the

power of attorney in favour of Mr. J.R. Jain in the year 1995

whereas the other plaintiff revoked the same in the year 2005.

I fail to appreciate how this could be a material consideration

while considering the amendment sought to be made by the

defendant. What is material is that the defendant having

already pleaded co-ownership of the suit property, it is not

open to him to simultaneously claim possession adverse to that

of the plaintiff.

The application is accordingly dismissed.

CS(OS) 2179/2010, IA No. 14351/2010 (Order 39 Rule 1 and 2), IA No. 14549/2010 (Order 15A), IA No. 188/2011 (Section 10 CPC) and IA No. 189/2011 (Order 6 Rule 16)

The learned counsel for the defendant seeks an

adjournment on the ground that he is not ready with the

arguments on these applications.

Hence, list for disposal on 14 th September, 2011.

(V.K. JAIN) JUDGE

MAY 19, 2011 SD