Prem Singh vs Virendra And Anr
2022 Latest Caselaw 4643 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Civil Writ Petition No. 10197/2015

1. Prem Singh s/o Shri Budhi Singh, aged about 48 years, R/o
Village Dahara, Tehsil Kumher, District Bharatpur.
2. Devi Singh S/o Shri Budhi Singh (since deceased).
                                                       ----plaintiff-petitioners
                                  Versus
1. Virendra S/o Shri Tarachand, Aged about 50 years.
2. Bhole S/o Shri Dharmi, aged about 59 years.
Both are R/o Village Dahara, Tehsil Kumher, District Bharatpur.
                                                ----defendant-respondents

Connected With S.B. Civil Writ Petition No. 10154/2015

1. Prem Singh s/o Shri Budhi Singh, aged about 48 years, R/o Village Dahara, Tehsil Kumher, District Bharatpur.

2. Devi Singh S/o Shri Budhi Singh (since deceased).

----plaintiff-petitioners Versus

1. Virendra S/o Shri Tarachand, Aged about 50 years.

2. Bhole S/o Shri Dharmi, aged about 59 years. Both are R/o Village Dahara, Tehsil Kumher, District Bharatpur.

----defendant-respondents S.B. Civil Writ Petition No. 10393/2015

1. Prem Singh s/o Shri Budhi Singh, aged about 48 years, R/o Village Dahara, Tehsil Kumher, District Bharatpur.

2. Devi Singh S/o Shri Budhi Singh (since deceased).

----plaintiff-petitioners Versus

1. Virendra Singh S/o Shri Tarachand, Aged about 50 years.

2. Bhole S/o Shri Dharmi, aged about 59 years. Both are R/o Village Dahara, Tehsil Kumher, District Bharatpur.

----defendant-respondents

S.B. Civil Writ Petition No. 10471/2015

1. Prem Singh s/o Shri Budhi Singh, aged about 48 years, R/o Village Dahara, Tehsil Kumher, District Bharatpur.

(2 of 9) [CW-10197/2015]

2. Devi Singh S/o Shri Budhi Singh (since deceased).

----plaintiff-petitioners Versus

1. Virendra Singh S/o Shri Tarachand, Aged about 50 years.

2. Bhole S/o Shri Dharmi, aged about 59 years. Both are R/o Village Dahara, Tehsil Kumher, District Bharatpur.

                                                   ----defendant-respondents


For Petitioner(s)        :     Mr.Ashish Kumar Upadhyay
For Respondent(s)        :     Mr.JK Moolchandani



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

08/07/2022

SB Civil Writ Petition No.10393/2015 has been filed by the

plaintiff-petitioners challenging the order dated 21 st April, 2015,

whereby the application, filed by the petitioners, under Order 6

Rule 17 CPC has been dismissed.

SB Civil Writ Petition No.10197/2015 has been filed by the

plaintiff-petitioners challenging the order dated 19 th January,

2015, whereby the application, filed by the petitioners, under

Order 6 Rule 17 CPC, for amending the temporary injunction

application, has been dismissed.

SB Civil Writ Petition No.10471/2015 has been filed by the

plaintiff-petitioners challenging the order dated 21 st April, 2015,

whereby the application, filed by the petitioners, under Order 1

Rule 10 CPC has been dismissed.

SB Civil Writ Petition No.10154/2015 has been filed by the

plaintiff-petitioners challenging the order dated 21 st April, 2015,

whereby the application, filed by the petitioners, under Order 1

(3 of 9) [CW-10197/2015]

Rule 10 CPC to implead the parties in temporary injunction

application has been dismissed.

This Court finds that the petitioners had filed a suit for

declaration and permanent injunction against the defendant-

respondents - Virendra Singh and Bhole, wherein it was prayed

that the property in question may be declared to be in the

exclusive ownership of the petitioners and further, permanent

injunction was required to be issued against the respondents for

not creating any hindrance in use of the property and further, they

were required to be restrained to make any construction.

Learned counsel for the petitioners submitted that after filing

of the suit, it came to notice of the plaintiff-petitioners that in

respect of the same property, which was subject-matter of the

suit, few persons, in clandestine manner, got one adopted deed

dated 6th July, 2011 executed without paying any consideration

and the land in question was given to one Rakesh, adopted son of

Shrichand and mother of adopted child, namely, Hemlata sold the

said property to wife of the defendant - Bhole.

Learned counsel submitted that in view of the changed

circumstances, where these transactions took place, the plaintiff-

petitioners moved an application under Order 6 Rule 17 CPC for

making amendment in the suit and prayed that subsequent

developments were required to be brought on record and the sale

deed and transfer of property were required to be set aside by the

Court.

Learned counsel for the petitioners submitted that the

application under Order 1 Rule 10 CPC was also filed in the main

suit as well as in the application for temporary injunction, as the

(4 of 9) [CW-10197/2015]

subsequent transferees, in the land in question, were required to

be added as a party defendant in the suit.

Learned counsel submitted that the Court below, by the

impugned order dated 21st April, 2015, has dismissed both the

applications, filed by the petitioners.

Learned counsel submitted that the Court below has wrongly

came to conclusion that by making amendment in the suit, the

nature of suit will be changed and further, the parties, who are

already there as defendant, will together be clubbed as

subsequent purchaser-transferees of land and as such, the Court

below, without considering the nature of amendment, has rejected

the application filed by the petitioners.

Learned counsel submitted that the petitioners had filed a

suit for declaration and if the subsequent developments were null

and void, the same could have been decided by the Court by

further passing a decree of declaration.

Learned counsel submitted that subsequent developments

and transfer of land were not changing the nature of suit in any

manner and the Court below further failed to consider that in

order to avoid multiplicity of the proceedings, the petitioners had

made an application for amendment of the pleadings.

Learned counsel submitted that at the time of filing of suit,

the petitioners were not aware as what has transpired between

Shrichand, who allegedly gave the property to his adopted son

and further, the adopted son and the mother sold the property.

Learned counsel submitted that the moment, the petitioners

came to know about all these illegal transactions and subsequent

developments, immediately an application was filed.

(5 of 9) [CW-10197/2015]

Learned counsel for the petitioners submitted that the very

purpose of making amendment in the pleadings will be frustrated,

if the property changes the hands during pendency of litigation

between the parties and if the defendants in the suit, in

connivance with other persons, transfer the land then the

subsequent transferees/purchaser of the land are required to be

brought before the Court as defendants and thereafter, in

presence of all the proper parties, such dispute can be decided.

Learned counsel submitted that the Court below has not

considered that title of the petitioners was never disputed by the

original defendant and only by taking a plea while moving an

application under Order 1 Rule 11 CPC, it was pleaded that the

property in question has been transferred and as such, the

contesting defendants did not have anything in their hands.

Learned counsel for the petitioners places reliance on the

following judgments :

(i) Abdul Rehman & Anr. Vs. Mohd. Ruldu and Ors. [(2012)

11 SCC 341]

(ii) Varun Pahwa Vs. Renu Chaudhary [2019 LawSuit (SC)

(iii) Gadamsetty Veeranjeneyulu Vs. Pokuru Ramaiah &

Anr. [2018(4) Civil Court Cases 175 (T&A)

(iv) Chandra Prakash Agarwal Vs. Ridhkaran Parasrampuria

& Ors. [2016 LawSuit (Raj.) 483.

Learned counsel for the respondents - Mr.JK Moolchandani

submitted that the Court below has rightly came to conclusion that

by permitting amendment in the pleadings, the nature of suit will

be changed and as such, if the real controversy, involved in the

suit, was declaring the petitioners-plaintiff as title holder and if the

(6 of 9) [CW-10197/2015]

property in the question has been transferred to different persons,

the same would not be in the form of reiteration and as such, if

the petitioners had any grievance then the proper course was

available for them.

Learned counsel for the respondents submitted that the issue

of transfer might be there if proposed amendment is allowed and

as such, the Court below has not committed any error in rejecting

the application.

Learned counsel for the respondents has also placed reliance

on the judgments passed by this Court in the case of LR's of Late

Kheta Lal & Ors. Vs. LR's of Late Bhikha Lal [2018(2) DNJ

(Raj.) 486] as well as in the case of Manju Lata Sharma Vs.

Prahlad Tamboli & Ors. [2018(1) DNJ (Raj.) 209].

On the strength of said judgments, learned counsel for the

respondents submitted that the parties, who seek to be cooperate

the amendment has to act with due diligence and if such fact is

already in the knowledge of the party concerned then

subsequently such amendments cannot be allowed.

I have considered the submissions made by learned counsel

for the parties and perused the record of the case.

This Court has gone through the plaint, which has been filed

by the petitioners and finds that the petitioners pleaded in their

plaint that the land in question has been used by them from last

so many years and their ancestors were using the said land for

their personal use and they were keeping their several articles and

as such, there was exclusive possession of property in question

with the petitioners. The said plaint also further reveals that

allegation was levelled against the defendants that they, in illegal

(7 of 9) [CW-10197/2015]

manner, wanted to have possession of land and they also wanted

to dispossess the petitioners-plaintiff.

This Court finds that the petitioners, in their suit, have also

pleaded that one Shrichand had expired without any issue and he

had sought permission to make construction in the land in

question and the permission, so obtained by him, was in order to

deprive the present petitioners from use of their property.

This Court, on bare reading of the suit filed by the

petitioners, finds that the petitioners had sought declaration in

their favour to declare them as exclusive owner of the property

and further, they wanted injunction against the defendants of not

taking any hindrance in their use.

This Court finds that the amendment application, which was

filed by the petitioners, had mentioned that late Shrichand had

adopted one Rakesh and the adoption deed was executed on 23 rd

July, 2005 and in clandestine manner, without paying any

consideration, a registered sale deed was executed on 8 th July,

2011.

This Court finds that the petitioners had filed the suit on 18 th

July, 2011 and in the suit, they have not mentioned anything

about adoption, being made or any sale deed, being executed.

This Court further finds that the amendment, which has been

sought by the petitioners, will now result into considering the

adoption of one Rakesh by Shrichand validly or not and thereafter,

the issue of registered sale deed will further be considered as

whether the sale deed was rightly executed or not?

This Court, considering the facts of this case, finds that the

prayer, which was made by the petitioners, will not be in same

(8 of 9) [CW-10197/2015]

continuation or having any relevance with the prayer, which has

been sought by the petitioners in their main suit.

This Court finds that the purpose of making amendment in

the pleadings is to decide the real question in controversy

between the parties. The real question in controversy between the

parties should also not cause injustice or prejudice to other side.

This Court finds that if the petitioners were having grievance

only in respect of alleged threat by the respondents to dispossess

them and further to seek declaration to be exclusive owner, the

subsequent declaration or development, which had taken place

prior to filing of suit will now be if allowed or to be taken by way of

amendment, the very nature of controversy between the parties

will be changed and as such, the prayer made by the petitioners in

the amendment application has rightly been declined by the Court

below.

The submission of learned counsel for the petitioners that

the Court should be liberal to allow the amendment and the Court

should make an endeavour to avoid multiplicity of the proceedings

between the same parties, this Court finds that the purpose of

allowing amendment is to determine the question involved in the

suit, which is filed by the plaintiff-petitioners and if the subsequent

developments have relevance with the controversy, which is

already raised, the Court is required to allow such amendment.

This Court finds that in the case of Abdul Rehman & Anr.

(supra), the Apex Court, after considering the scope of the Order

6 Rule 17 CPC, found from the facts of that case that there was

factual matrix in the suit filed by the plaintiffs, which were clearly

made out about the averments in the un-amended plaint and

thereafter, amendment was sought for cancellation of sale deed.

(9 of 9) [CW-10197/2015]

The Apex Court, in view of such factual aspects of the matter,

found that challenge to the sale deed was required to be permitted

by way of amendment and as such, the judgment relied upon by

learned counsel for the petitioners is of no assistant to him.

This Court has also gone through the other judgments, cited

by learned counsel for the petitioners, wherein the Apex Court as

well as this Court has been consistently holding that the

amendment, which has relevance and importance in the real

controversy between the parties, needs be allowed, however, this

Court finds that in the present case, the nature of controversy,

involved between the parties, cannot be connected in any manner

with the subsequent events or the events, which the petitioners

want to bring on record to let out the adoption and sale deed.

This Court finds that the Court below has not committed any

error in passing the order.

Accordingly, the writ petitions stand dismissed having no

force therein.

A coy of this order be separately placed in each file.

(ASHOK KUMAR GAUR),J

Preeti Asopa /38-40

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