Uttarakhand High Court
Unknown vs Dayanand Anglo Vedik Inter ... on 17 August, 2023
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ-Petition (M/S) No.2319 of 2023
Doon Vihar Sehkari Awas Samiti, Dehradun
... Petitioner
Vs.
Dayanand Anglo Vedik Inter College and Another
... Respondent
Advocate: Mr. Ramji Srivastava, learned Standing Counsel for the
petitioner.
Hon'ble Sharad Kumar Sharma, J.
The suit, being Suit No.367 of 1991, stood
instituted as back as 04.06.1991 for the following
relief:-
"9. That the Plaintiff Society prays for a decree
against the defendants with the following reliefs:
(A) That the defendants, their agents,
employees, workmen and all claiming title
through the defendant be restrained by a decree
of permanent injunction from interfering in any
way in the possession of Plaintiff Society over
the land in suit.
(B) That full cost of the suit be awarded against
the defendants.
(Amended vide (B) That it be declared that the plaintiff Society,
amendment dated
09.08.2007) is the exclusive owner of the land in dispute.
(C) That any other relief which the learned court
may deem fit and proper be also granted."
2. Relief number - (B) was amended to be
incorporated by an order of 09.08.2007 thereby
seeking a declaration over the property as to be an
exclusive owner of the land. On the basis of the
amended plea, the learned trial Court has framed
the issues and, particularly, the issue with which we
will be concerned with is issue no.6. Issue no.6, as
framed by the trial Court, reads as under:-
"6- D;k oknh dks oknxzLr lEifRr ij izfrdwy dCts ds vk/kkj ij LokfeRo dk
vf/kdkj izkIr gks x;k gS?"
3. In a nutshell, the issue no.6 dealt with as
to whether the plaintiff could claim a right and title
over the disputed property on the basis of an
adverse possession. At the relevant point of time,
the law as it was prevailing, it was being governed
by the ratio laid down by the Judgment of the
Hon'ble Apex Court in the case of Gurudwara
Sahib Vs. Gram Panchayat Village Sirthala, as
reported in (2014) 1 SCC 669, which has
observed, that though a person, who is in
occupation of a land by way of an adverse
possession, can continue to occupy, but he cannot
seek a declaration of rights, by virtue of an adverse
possession.
4. Consequently, based on which, the suit
was partially decreed on 12.11.2015 and, as a
result thereto, there were two appeals filed, one by
the plaintiff and one by the defendant, being Civil
Appeal No.77 of 2017 and Civil Appeal No.144 of
2017.
5. It is that at the appellate stage, that the
application (Paper No.33A1) was filed by the
petitioner seeking to amend the pleadings in the
body of the appeal whereby, by virtue of the
amendment, the grounds of appeal was sought to
be amended to the following effect:-
""(fl) BECAUSE the Trial Court vide Judgment dated
22.04.2010 wrongly rejected the amendment
application paper no.202A & wrongly held that
amendment sought for shall change nature of suit
and lead to various complications.
iii) That subsequent to para (fl) a new para (f2) be
added to be read as "(f2) Because the Learned Trial
Court failed to decide title of the Plaintiff Society on
the basis of adverse possession in alternative against
Defendant No. 2."
6. The justification, which was attached to
seeking the amendment by the present petitioner,
who is an appellant in Appeal No.77 of 2017, was
because of the changed legal scenario and because
of the fact that judgment, as referred to by the trial
Court in paragraph no.52 i.e. Gurudwara
Sahib(supra) has been overruled subsequently by
the Hon'ble Apex Court in (2019) 8 SCC 729,
Rarinder Kaur Grewal and Others Vs. Manjit
Kaur and Others; (2020) 3 SCC 220, Narendra
Kumar Tripathi Vs. Karuna Auddy and Others;
(2020) 12 SCC 244, Krishnamurthy S. Setlur
Vs. O.V. Narasimha Setty; and (2020) 10 SCC
264, Mohammade Yusuf and Others Vs.
Rajkumar and Others.
7. In view of the changed legal scenario, the
amendment was sought, which has been rejected
by the Appellate Court, on the ground, that it will
be changing the nature of the case.
8. The plea taken by the applicant, which
was being sought to be incorporated by way of an
amendment, in fact, no specific plea was required
to be taken by way of a ground to be added by
amendment, because it was absolutely a question
of law, which was required to be argued, based
upon the changed ratio, laid down by the Hon'ble
Apex Court, whereby the trial Court's judgment,
which was exclusively based upon the judgment of
Gurudwara Sahib(supra), which was overruled, it
would be open for the appellant to argue the same
on the basis of the subsequent judgments, as
referred to hereinabove, that a declaration of right
over the property in question could be sought by
virtue of an adverse possession.
9. As such, no formal amendment was
required to be carried in the memo of appeal,
because the said question, being absolutely a
question of law, could be argued, even without
pleading and which stands fortified by the opposite
party to the appeal in their objections taken to the
amendment application.
10. In that view of the matter, no formal
amendment is required, since the issue being pure
question of law, based under the changed legal
situation, the writ-petition would stand disposed of,
leaving it open for the petitioner to argue the
matter on these grounds, in the light of subsequent
judgments as rendered by the Hon'ble Apex Court
as referred to hereinabove, qua its effect on the
judgment of Gurudwara Sahib(supra) pertaining
to the claim of right over the immoveable property
by way of an adverse possession.
11. So far as the second ground, which was
being sought to be amended, it would yet again
entail consideration of a legal question, which would
be permitted to be argued by the appellant by the
Appellate Court when the appeal itself is decided on
merits, in the light of the provisions contained
under Section 105 of the CPC.
12. Subject to the aforesaid exception, as
carved out to the order of rejection of the
amendment application, the writ-petition would
stand disposed of.
(Sharad Kumar Sharma, J.)
17.08.2023
Sukhbant/
