Page No.# 1/5 vs Somra Munda And 5 Ors
2021 Latest Caselaw 3562 Gua

                                                                      Page No.# 1/5

GAHC010006262021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : CRP(IO)/9/2021

         MD. ABUL BASAR AND ANR
         S/O MD. SIRAJUL, R/O VILL-SATIPUKHURI, P.O.-BARSOLA, DIST-
         SONITPUR, ASSAM, PIN-784118

         2: MD. JAKIR HUSSAIN
          S/O MD. ABUL BASAR
          R/O VILL-SATIPUKHURI
          P.O.-BARSOLA
          DIST-SONITPUR
         ASSAM
          PIN-78411

         VERSUS

         SOMRA MUNDA AND 5 ORS
         S/O LATE GOBAI MUNDA, R/O VILL-SATIPUKHURI, P.O.-BARSOLA, DIST-
         SONITPUR, ASSAM, PIN-784118

         2:JOHAN MUNDA
          S/O LATE GOBAI MUNDA
          R/O VILL-SATIPUKHURI
          P.O.-BARSOLA
          DIST-SONITPUR
         ASSAM
          PIN-784118

         3:KINOO MUNDA
          S/O LATE GOBAI MUNDA
          R/O VILL-SATIPUKHURI
          P.O.-BARSOLA
          DIST-SONITPUR
         ASSAM
          PIN-784118
                                                                                Page No.# 2/5

            4:ILLIYAS MUNDA
             S/O LATE ANU MUNDA
             R/O VILL-SATIPUKHURI
             P.O.-BARSOLA
             DIST-SONITPUR
            ASSAM
             PIN-784118

            5:AMRUSH MUNDA
             S/O LATE GOBAI MUNDA
             R/O VILL-SATIPUKHURI
             P.O.-BARSOLA
             DIST-SONITPUR
            ASSAM
             PIN-784118

            6:RAKISH MUNDA
             S/O LATE GOBAI MUNDA
             R/O VILL-SATIPUKHURI
             P.O.-BARSOLA
             DIST-SONITPUR
            ASSAM
             PIN-78411

Advocate for the Petitioner   : MR A D CHOUDHURY

Advocate for the Respondent : MR. S K SINGH (R1-R3)




                                    BEFORE
                     HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                            ORDER

Date : 21.12.2021

Heard Mr. D. Choudhury, the learned counsel appearing on behalf of the petitioners and Mr. A. Ganguly, the learned counsel appearing on behalf of the Respondent Nos. 1, 2 & 3.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 24/02/2020, whereby the First Appellate Court had permitted the amendment to incorporate the relief of declaration in appeal.

3. I have heard the learned counsels for the parties at length.

Page No.# 3/5

4. A perusal of the copy of the plaint enclosed as Annexure-1 to the instant proceedings clearly goes to show that the plaintiffs have alleged that they have their rights over the suit land on the basis of their inheritance and the defendants have got the suit land mutated in their name illegally. In fact, in the nomenclature of the suit it is also mentioned that the suit was for declaration of right, title and interest and consequential relief. However, no relief was specifically mentioned in the plaint seeking declaration of right, title and interest of the plaintiffs over the suit land. Subsequent thereto, upon pleadings being complete, issues were framed. Amongst the various issues which were framed, the issue No. (v) was as to whether the plaintiff have right, title and interest over the suit land. The Trial Court vide a judgment and decree dated 18/02/2019 by deciding the issue No. 5 has held that the plaintiff had right, title and interest over the suit land but while deciding the issue No. 8 as to whether the plaintiff was entitled to a decree as prayed for, the relief sought for in the plaint was not granted because the plaintiffs have not sought for relief regarding declaration of their right, title and interest over the suit land.

5. Being aggrieved and dissatisfied, the Respondent Nos. 1, 2 & 3 preferred an appeal before the Court of the Civil Judge at Tezpur, which was registered and numbered as Title Appeal No. 12/2019. In the said appeal the Respondent Nos. 1, 2 & 3 filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, whereby the amendment was sought for to insert a relief in the plaint, which for the sake of convenience is quoted herein below :

" (i) For that the suit be decreed declaring the plaintiffs' joint right, title and interest in the suit land with the proforma defendants and for grant of consequential relief of eviction of the defendants from the suit land along with their men and materials."

6. The petitioners herein filed an objection on the ground of maintainability as well as denying to the statements and averments made in the said application.

7. The First Appellate Court vide an order dated 24/02/2020 permitted the said amendment with a cost of Rs. 5,000/- and it is against the said order, the petitioners have approached this Court under Article 227 of the Constitution.

Page No.# 4/5

8. The law as regards amendment of pleadings or amendment of reliefs are no longer res-integra. As and when an amendment of pleadings are sought for, it has the affect of bringing on new facts which may be required to be controverted by the adversary party. On the other hand, as reliefs are to be granted on the basis of pleadings in as much as it is well established for deciding the nature of the suit the entire plaint has to be read and not merely the relief portion. In that view of the matter a relief can be granted in the suit provided there are pleadings which permits such relief can be granted. Further to that the observations of the Supreme Court in the case of Santokh Singh & Anr. Vs. Mahant Iqbal Singh reported in (2000) 7 SCC 215 may be referred to and more particularly paragraph 7 which is quoted herein below :

"7. It is correct that such a declaration should have been sought. Normally in the absence of such a declaration such a suit would not be maintainable. However, in this case we find that even though there was no prayer to the effect that the Lease Deed was not valid and/or void and/or are not binding, the necessary averments are there in the plaint. The Appellants thus knew that the lease deed was being challenged. They met the challenge in their written statement. Thereafter Issues namely, Issues Nos. 4 & 5 had been framed. Evidence was led by the parties on those Issues. Arguments were advanced on those Issues. Therefore, this question has been agitated by the parties in all the Courts. Thus even though there was no formal prayer was asked for, no prejudice has been caused to the Appellants inasmuch as he has not been prevented from leading evidence on this aspect and has not been precluded from raising contentions in this behalf. In our view, all that was necessary to cure the defect was an amendment by incorporating one prayer. This could have been done at any stage. In this view of the matter and particularly in view of the fact that we are in agreement with the findings that the property is a Trust property and that the lease in question was not for consideration or for legal necessity, we see no reason to interfere."

9. A perusal of the plaint as aforementioned would show that the plaintiffs have alleged that they have right over the suit land on the basis of their inheritance and the defendants have taken such actions on the basis of which the rights of the plaintiffs in respect to the suit land have been denied. The Trial Court had also taken note of the said assertions and the denials and framed an issue as to whether the plaintiff have right, title and interest over the suit land. In that view of the matter, the amendment which were being sought for was only for the purpose of amending the reliefs in the plaint, in my opinion, therefore has been rightly permitted by the First Appellate Court, and as such, the said impugned order dated 24/02/2020 does not call for any interference.

Page No.# 5/5

10. It is further directed by this order that as the records of the Trial Court are already before the First Appellate Court, the First Appellate Court shall direct its Sheristedar to make necessary correction in the plaint by incorporating the relief as permitted by the amendment and thereafter the First Appellate Court shall proceed with the disposal of the appeal in accordance with law.

9. This Court vide an order dated 25/02/2021 had stayed further proceedings of Title Appeal No. 12/2019 pending before the Civil Judge, Tezpur, and the said stay order stands vacated in view of the disposal of the instant proceedings and the parties are directed to appear before the First Appellate Court on 18/01/2022.

JUDGE

Comparing Assistant