Dev Raj vs Piar Singh

Deepak Gupta, J.—This petition by the Defendant is directed against the order dated 30th April, 2011, passed by the learned Civil Judge (Junior Division), Barsar, whereby the learned trial Court rejected the application filed by the Defendant seeking amendment of the written statement.

Briefly stated, the facts of the case are that the Respondent (hereinafter referred to as the Plaintiff) filed a suit for possession by way of demolition of structure over land comprised in khata No. 214, khatauni No. 216, khasra No. 3549/74, measuring 2 kanals 1 marla, situate in village Jajri, Tappa Dadwal, Tehsil Barsar, District Hamirpur. The Plaintiff alleged that he is the absolute owner of the suit land and the Defendant had encroached upon the same.

Defendant filed written statement claiming that he had become owner of the suit land by way of adverse possession as he was cultivating the same since 1974 and the house was constructed in the year 1990. Thus, impliedly the title of the Plaintiff was admitted. It would be appropriate to mention that the Defendant''s case was that his mother, Smt. Sukhan Devi, had purchased some land from Smt. Proju Devi and some portion of the said land was inherited by the present Petitioner and at that time the possession of the suit land was also taken and, therefore, he was in adverse possession of the suit land. The suit of the Plaintiff was decreed in the year 2008. Thereafter, an appeal was filed and the matter was remanded to the learned trial Court. A Local Commissioner was appointed and after the commissioner submitted his report and the matter was fixed for arguments, this application for amendment was filed.

By means of this amendment application, the Defendant wants to withdraw the allegations made in para 4 of the preliminary objections in the written statement, whereby he claimed to have become owner of the suit land by way of adverse possession. In fact, now the case being set up is that his mother, Smt. Sukhan Devi, had, in fact, purchased 17 kanals 9 marlas of land and the suit land is part of this 17 kanals 9 marlas of land. It is alleged that in the sale deed, which was executed by Smt. Proju Devi in favour of Smt. Sukhan Devi, mother of the Defendant, 17 kanals 9 marlas of land was sold. However while mentioning the share of Smt. Proju Devi, the same was mentioned as 7/218, whereas it should have been mentioned as 7/128.

The total joint land was 319 kanals. If the share of Smt. Proju Devi was 7/218, then she would have owned only 10 kanal 41/2 marlas of land and could not have sold 17 kanals 9 marlas. On the other hand, if her share was 7/128, then it works out to 17 kanals 9 marlas.

The law is well settled that amendment after the trial cannot be allowed unless the party shows that it had acted with due diligence. Reference in this behalf can be made to Vidyabai and Others Vs. Padmalatha and Another, It is contended by Mr. J. R. Poswal, learned Counsel appearing on behalf of the Respondent that not only has the trial commenced, but the Defendant is now trying to withdraw his admission that the Plaintiff is the owner of the suit land.

Normally, this Court is strict with regard to amendments made after commencement of the trial and an admission is not allowed to be withdrawn. However, in this case, as is apparent from the facts stated hereinabove, though the Defendant had set up the plea of adverse possession, he had also clearly stated that some portion of the land had been purchased by his mother and some inherited by him. Now, he wants to restrict his claim by stating that the suit land forms part of the land which was purchased by his mother.

I have gone through the sale deed and I find that in the sale deed, it is specifically mentioned that 17 kanals 9 marlas of land has been sold. If the share of Smt. Proju Devi was 7/218, it could not work out to 17 kanals 9 marlas, whereas if the share is 7/128, it would work out to exactly 17 kanals 9 marlas.

At this stage, this Court is not going into the merits of the respective case of the parties. The only question is whether the amendment should be allowed or not. The law with regard to amendments of written statements is much more liberal than in respect of plaints. Even an admission can be withdrawn if it is shown that the admission has been made in certain circumstances. In the present case, as pointed out above, the Defendant, even in the original written statement, had stated that part of the land was purchased by his mother. Now, he has restricted his claimed by stating that the land in question forms part of the land purchased by his mother and, therefore, gives up his right of claiming adverse possession of the suit land.

In my view, this application should have been allowed by the learned trial Court, since whether the share was 7/128 or 7/218 is a question which can only be decided after leading evidence and which question has a material bearing on the decision of the case itself. No doubt, the Defendant had filed the application at a highly belated stage, but it appears that the mistake was due to the wrong mentioning of the share holding in the sale deed, even though the area mentioned in the sale deed was 17 kanals 9 marlas. This is a case where the Plaintiff can be compensated by way of costs for the delay in filing the application for amendment of the written statement.

The amendment, in my view, is necessary to decide the dispute between the parties. If the mother of the Defendant had actually purchased 17 kanal 9 marlas of land and the Plaintiff''s possession is only over this area, then obviously he has not encroached upon any land. These questions have to be decided after evidence has led.

In view of the above discussion, the petition is allowed and the Defendant is permitted to amend the written statement subject to payment of Rs. 5,000/- as costs. In case, the costs are not paid on or before the next date, the present petition shall be deemed to have been dismissed.

Parties through their counsel are directed to appear before the learned trial Court on 19th October, 2011, on which date the costs will be paid and the amended written statement, if not already filed, should be filed.

The petition is disposed of in the aforesaid terms.