Page No.# 1/8 vs Himani Das
2021 Latest Caselaw 2916 Gua

                                                                           Page No.# 1/8

GAHC010318782019




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

                               Case No. : CRP(IO)/22/2020

            HARMOHAN TALUKDAR AND ANR.
            S/O- LT. NILMANI TALUKDAR, R/O- FATASIL AMBARI, HOUSE NO. 14, P.S.
            FATASIL AMBARI, GHY- 781025, DIST. KAMRUP(M), ASSAM.

            2: ARUP KUMAR SAIKIA
             S/O- SHRI GOPAL SAIKIA
             RESIDENT OF BHAGADATTAPUR
             KAHILIPARA
             P.S.- DISPUR
             GHY.- 781019
             DIST. KAMRUP(M)
            ASSAM
            VERSUS
            HIMANI DAS
            C/O- NIPEN DAS, RESIDENT OF PANDU, SADILPUR, GHY.- 781012, DIST.-
            KAMRUP(M), ASSAM.

Advocate for the Petitioner   : MR. R J BORDOLOI

Advocate for the Respondent : MR. B D DEKA

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (ORAL) Date : 17-11-2021

Heard Mr. R.Ali, the learned counsel appearing for the petitioners and Mr. N.

Chaudhury, the learned counsel appearing for the respondent.

Page No.# 2/8

2. This is an application under Article 227 of the Constitution of India whereby the order

dated 02/10/2019 passed by Court of the Civil Judge, Kamrup(Metro) in Title Suit No.

63/2014 has been put to challenge. Vide the order impugned in the instant proceedings the

prayer for amendment of the plaint has been rejected on the ground that the same has been

filed at a belated stage.

3. The factual matrix relevant for disposal of the instant proceedings are that the

plaintiffs had filed a suit being Title Suit No. 63/2014 claiming to be owners of a plot of land

as described in the Schedule to the plaint sought for cancellation of a purported deed of sale

bearing No. 1312/2002 dated 18/02/2002 on the ground that the said purported Deed of Sale

was executed fraudulently behind the back of the petitioners/plaintiffs. The reliefs claimed in

the suit being relevant for the purpose of the instant lis, the same are here-in-below :-

"a. a decree for cancellation of sale deed No. 1312/02 alleged to have been executed on 18.02.2002 and registered on 20.02.2002 by the plaintiffs;

b. a precept be issued to the Sub-Registra, Guwahati, Sub-Registry for cancellation of the sale deed No. 1312/02;

c. decree for confirmation of the possession of the plaintiffs over the composite plot of land;

d. a permanent injunction restraining the defendant, her man, relative, workers, employees, agents attorneys, or any other person claiming under her from alienating and /or transferring the composite plot of land in favour of any other person and from disturbing the possession of the plaintiffs;

              e.     a temporary injunction ;

              f.     cost of the suit decreed and

              g.      any other relief or reliefs to which the plaintiffs are entitled under law and
                   equity may also be decreed."
                                                                                     Page No.# 3/8

5. The defendant filed her written statement and in her written statement though she

admitted the title of the plaintiff prior to the execution of the deed of sale, but subsequent to

the impugned Deed of Sale denied the title of the plaintiffs. The defendants in their written

statement further denied the statement and allegations as regards fraud as well as also

stated that the suit filed by the plaint was not maintainable both in law and a fact.

6. On the basis of the pleadings as many as five issues were framed, which for the sake

of convenience are quoted here-in-below :-

1. Whether the suit is maintainable in its present form?

2. Whether the suit is barred by limitation ?

3. Whether the Sale Deed No. 1312 dated 18/02/2002 is forged?

4. Whether the plaintiffs are entitled to get the decree as prayed for ?

5. To what relief/reliefs the parties are entitled to ?

7. Pursuant to the issues being framed, evidence being led the suit was fixed at the stage

of arguments when the plaintiffs engaged a new set of counsels. The new set of counsels

upon being engaged advised the plaintiffs that without the prayer for declaration of the right,

title and interest of the plaintiffs over the suit land, may result in a formal defect in the suit

for which the relief of declaration of the right, title and interest in respect to the suit land

ought to be prayed in the said suit. The plaintiffs were also advised that as the Plaintiff No. 1

and the Plaintiff No. 2 were separate owners of two conjoint plots of land forming the land

described in the Schedule to the plaint, it would be better for the Plaintiffs to seek declaration

separately in respect to their own lands thereby substituting the present Schedule with two

Schedules which would enable the identification of the lands in respect to which land each of

the Plaintiffs are the owners. On the basis of the said advise, the application seeking Page No.# 4/8

amendment was filed. The defendant filed a written objection strongly opposing the prayer

for amendment and more particularly questioning the due diligence of the plaintiffs in seeking

the amendment at this belated stage. The Trial Court rejected the said application on the

ground that the said application was filed at a belated stage and fixed the suit for arguments

on 13/02/2019 by imposing a cost of Rs.2,000/-.

9. Feeling dissatisfied and aggrieved, the plaintiffs have approached this Court under

Article 227 of the Constitution of India.

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

11. It is a well established principle of law that for deciding the nature of the suit, the

entire plaint has to be read and not merely the relief portion and the plaint in the present

case does not leave any manner of doubt that the suit has been filed for establishing the title

of the plaintiffs, which stood clouded on the basis of purported deed of sale alleged to be

executed by the plaintiffs in favour of the defendant. In this regard, reference can be made

to the judgment of the Supreme Court rendered in the case of Corporation of the City of

Bangalore Vs. M. Papaiah reported in (1989) 3 SCC 612 and more particularly paragraphs 4

and 5 which is quoted herein below :

"4. So far the scope of the suit is concerned, a perusal of the claim of the plaintiffs is the title which they have pleaded in express terms in paragraph 2 of the plaint. It has been stated that after cancelling the acquisition of the suit property for a burial ground the land was transferred to Guttahalli Hanumaiah under G.O. No. 3540 dated 10.6.1929 on payment of upset price. In paragraphs 3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner-in-possession. It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against Page No.# 5/8

the appellant Corporation. The court fee payable on the plaint has also to be assessed accordingly. It follows that the appellant's objection that the suit is not maintainable has to be rejected. The additional Civil Judge, who heard the appeal from the judgment of the trial court, examined the question of plaintiffs' title and rejected their case. The question of possession was also separately taken up, and it was found that the plaintiffs had failed to prove their possession until 24.8.1973 when they allege that the appellant Corporation trespassed. Accordingly, the appeal was allowed and the suit was dismissed.

5. In reversing the decision of the first appellate court the High Court committed several serious errors of law. The High Court appears to have been confused on the question whether the issue of title to the disputed property was involved in the suit or not. The judgment shows that the High Court has made several inconsistent observations. By way of illustration, the following passage at page 13 of the paper book (of this Court) may be seen:

This Court must accept this argument in view of the circumstance that there was no issue involving the title has been satisfactorily established by the appellants and the respondent has failed to establish its title. Therefore, the first appellate court is wholly wrong in raising issues which did not arise in the case and reaching the conclusion that the suit was bad since the appellants did not seek the relief of declaration of title and possession.

We do agree.................................."

12. Mr. Ali has drawn my attention to the judgment of this Court rendered in the case of

Gautam Das Vs. On the death of Jitendra Gogoi His Legal Heirs and Ors. dated 9/10/2020

passed in CRP (I/O) 280/2019, whereby this Court taking into consideration that the

amendment sought for was only limited to the amendment of the prayer portion permitted

the said amendment holding that if there are any change in the cause of action in the plaint,

the defendants/respondents are required to controvert the same by filing the written

statement. However, if the prayers are allowed to be changed there remains nothing to object

by the defendants. This Court further in the said judgment permitted the said amendment to Page No.# 6/8

seek the additional declaratory relief with a direction to the Court below to direct the Bench

Assistant to introduce the prayer sought for in the plaint as per the amended petition. The

relevant portion of the said judgment is quoted herein below :

" Mr. Alam also argued that if the prayer/prayers are allowed to be amended, then, the defendants/respondents are liable to be given a chance to file their written statement and the court below once the new pleadings are on record is required to go back to the evidence stage. In my considered view, if there are any changes in the cause of action in the plaint, the defendants/respondents are required to controvert the same by filing written statement. On the other hand, if the prayers are allowed to be changed, their remains nothing to object by the defendants. Already it has been held that the plaintiff laid the foundation in his plaint in respect of the derivation of the suit land. Further if the required pleadings are made, the court has the power to mould the relief under Order VII Rule 7 of the C.P.C. Accordingly, the parties know very well the requirement and the evidence to be adduced which they had already led. For the said reason also there is no point in further framing issues inasmuch there are no factual changes in the cause of action in the plaint.

In view of the aforesaid discussion and the findings I am constrained to interfere with the impugned order thereby setting aside the same subject to deposit of a cost of Rs.10,000/- in the court below. It is further stated that after the plaint is allowed to be amended, the learned court below shall go ahead with the argument and dispose of the suit on merit. It is submitted by the learned counsel that 21.10.2020 is fixed for appearance of the parties and necessary order. Accordingly, the petitioner shall submit the copy of this order and only on deposit of Rs. 10,000/- by the petitioner/plaintiff the learned court below shall direct the Bench Assistant to introduce the prayers sought for in the plaint as per the amendment petition."

13. From the above proposition of law as laid down by the Supreme Court as well as by

this Court and taking into consideration the facts of the instant case more particularly where Page No.# 7/8

there is a denial about the title of the plaintiffs subsequent to the execution of the purported

deed of sale and it is specifically claimed in the plaint that the plaintiffs are the owners of the

schedule land, it would be in the interest of justice to permit the amendment insofar the relief

as regards the right, title and interest of the plaintiffs over the Schedule land is concerned.

14. The amendment which has been sought for substituting the original Schedule with

Schedule A and B cannot be allowed in the facts and circumstances of the instant case

inasmuch as the said amendment is not required for determining the real question in

controversy more so when the purported Deed of Sale challenged is in respect to the

Schedule as mentioned in the plaint. Consequently, in view of not permitting the amendment

as regards the substitution of the original Schedule with Schedule A and Schedule B, the

counsel for the Petitioner submits that the relief as was sought to be incorporated seeking

declaration of the right, title and interest of the Plaintiff No. 1 as regards Schedule A and

Plaintiff No. 2 as regards Schedule B is required also to be read as "declaration of right, title

and interest of the Plaintiffs in respect to the land described in the Schedule to the Plaint."

Accordingly, it is directed that the relief to be incorporated to the Plaint would read as -

"declaration of the Plaintiffs as regards their right, title and interest in respect to

the land described in the Schedule to the Plaint."

15. In view of the above, I interfere with the order impugned in the instant proceeding

partly and direct the parties herein to appear before the Court below on 30/11/2021 and the

petitioners herein shall submit the copy of this order to the Court below and the Court below

shall thereupon direct the Bench Assistant to introduce the prayer as given hereinabove.

15. The petitioners/plaintiffs shall deposit a cost of Rs. 25,000/- before the Trial Court and Page No.# 8/8

the respondent/defendant shall be at liberty to collect the same. The suit thereafter shall

proceed with the arguments as already fixed by the Court below.

16. Interim order passed earlier stands vacated.

JUDGE

Comparing Assistant