Jagbir Singh vs Ajmer Singh

B.S. Yadav, J.

The facts giving rise to this revision petition are that the present respondent Ajmer Singh had filed a suit for preempting a sale effected on 9th July, 1980 in respect of land measuring 7 Bighas 7 Biswas. In the plaint it was stated that the said land was comprised in Khewat/Khatauni No. 113/173, Khasra Nos.1155/1 and 1307/3 and Khewat/Khatuani No. 114/175, Khasra No. 1308/2. On 18th September, 1982 the vendee defendants filed written statement in which they stated the Khasra numbers of the land purchased by them and took up the plea that the suit was for partial preemption. The plaintiff filed replication on 5th October, 1982 controverting that allegation of the vendees. The case was fixed for evidence on 2nd September, 1983 on which date the plaintiff filed an application for amendment of the plaint. In the application it was alleged that while describing the khasra numbers, inadvertently Khasra No. 1307/3 was written instead of Khasra No. 1307/1 because in the Jamabandi supplied by the Halqa Patwari Khasra No. 1307/3 was mentioned. It was also stated that the plaintiff came to know about this mistake when the defendants filed an application dated 24th August, 1983 for setting aside the exparte order and produced copy of Jamabandi wherein Khasra No. 1307/1 was mentioned. The plaintiff prayed that he be allowed to substitute Khasra No. 1307/1 in place of Khasra No. 1307/3.

The above application was opposed by the vendees. However, vide impugned order the learned trial Court allowed it. Feeling aggrieved, the vendees have filed this revision petition.

The main argument of the learned counsel for the petitioner was that in the written statement the defendants had specifically described the Khasra numbers in which the land sold to them was comprised but instead of taking any action at that time the plaintiff in the replication controverted that allegation and the application for amendment of the plain was filed after about a year of the filing of the written statement. The substance of the argument was that the plaintiff cannot be said to have acted with due diligence or care. In support of his arguments reliance has been placed upon Smt. Gurdip Kaur v. Kehar Singh and another, 1971 PLR 384. In that case the property sold was 50 Kanals 16 Marlas of land situated in village Pakhana alongwith all rights appurtenant thereto and a Kacha house situated in the abadi. The preemptor claimed possession of the land sold with all other rights mentioned in the sale deed. However, there was no mention of the Kacha house which was included in the sale deed. The vendee pleaded that the Kacha house situated in the abadi also formed part of the property sold and as it had not been included in the plaint for preemption, the suit was liable to dismissal for partial preemption. Issues were framed in the case on 16th September, 1965 and one of the issues was :

"Whether the suit is bad for partial preemption."

While the evidence was being examined, on 24th February, 1966 the preemptor applied to the Court for amendment of the plaint so as to include the kacha house situated in the village abadi both in the relief clause and paragraph 1 of the plaint. The learned trial Court disallowed proposed amendment. No attempt was made to challenge that order by way of revision. After the trial, the Court dismissed the suit solely on the finding that it was for partial preemption, the kacha house stated in the sale deed having been left out. Against that decree dated the 27th April, 1966 the pre emptor filed an appeal to the Court of District Judge. In the grounds of appeal no grievance was made to the facts that the application for amendment had been wrongly disallowed. During the pendency of the appeal, the preemptor filed an application for amendment of the plaint. The appellate Court accepted the appeal and directed the trial Court to allow the amendment and remanded the case for proceeding with the trial of the suit on merits. The vendee came to this Court in second appeal. Gurdev Singh J. remarked as follows :

"As had been observed earlier, the learned trial judge rejected this prayer pointing out that the application for amendment was belated and if the amendment was allowed it would take away a valuable right that had accrued to the opposite party. Even thereafter the correctness of this order was not challenged and no grievance was made even in the grounds of appeal to the District Court that the amendment was wrongly refused. It was not even asserted in the memorandum of appeal that the omission to include the kacha house in the plaint was due to any mistake. In these circumstances when the plaintiff had persisted all along in contesting the issue regarding partial preemption and had not even alleged that the mistake was inadvertent or unintentional, his subsequent plea which has been accepted by the lower Appellate Court that the mistake was unintentional was untenable. It is again significant that even in the application made in the lower appellate Court for amendment it is not explained how the mistake occurred and by whom it was committed. The plaint was drafted by a counsel. It is signed by him and he has not come forward to explain why the house was not included in the property in respect of which the right of preemption was claimed."

The amendment was disallowed and the appeal was accepted. It may be mentioned here that after noticing the various authorities the learned judge had remarked as follows :

"The principles that should guide the Courts in the questions of amendment of the plaints have been reiterated by their Lordships of the Supreme Court recently in A.K. Gupta and Sons Limited v. Damodar Valley Corporation, AIR 1967 S.C. 96. Among these principles are that no amendment is to be allowed if its effect is to take away a valuable right that has accrued to the opposite party. It is apparent that if the suit of the plaintiff as framed originally is for partial preemption and the period of limitation has expired, valuable right has accrued to the vendee because it is not disputed that the suit for partial preemption cannot succeed. The case in hand stands on a stronger footing than the one with which Dua, J. was dealing and even if we accept the test laid down by the Division Bench of the Chief Court in Jalal Din''s case (supra) I am of the opinion that the amendment in this case should not have been allowed. In this connection what has to be inquired into is whether it was a case of inadvertent mistake or omission."

In the present case it is to be noted that in the application made for amendment, the preemptor has explained how the mistake occurred. The order of the learned trial Court does not show that in that Court it was urged on behalf of the vendees that the explanation given by the preemptor was in any way incorrect.

The learned counsel for the petitioners also relied upon Bhawani Dass v. Kaushalya Rani, AIR 1981 P&H 196. In that case only one vendee was impleaded as a defendant. After the expiry of the period of limitation, application for amendment of the plaint for impleading covendee as defendant was made. The trial Court disallowed the amendment. The preemptor filed revision petition in this Court. The revision was dismissed with the following observations :

"Reverting back to the facts of the present case, we find that there were two angular expressions in the copy of the sale deed to the effect that the land had been sold in equal shares and the possession had been given to the vendees. These expressions, if read in a contrary trend would have put the plaintiff to alert that there was likelihood of more than one vendee and the name of the sole vendee mentioned in the certified copy of the sale deed, could be misleading. If the plaintiff became wiser by the name of one vendee from the sale deed, it is difficult to reconcile that the suspicious expressions used therein would have escaped his notice. The plaint was filed on 6th June, 1979, hardly a week before the expiry of the period of limitation. The objection had been taken in the written statement on 8th February, 1980. Despite that the amendment was sought on 4th April, 1980. By the time the amendment was sought, the period of limitation of the suit had expired. It is thus neither a case in which the amendment sought for was to supply omission of a detail of property comprised in the sale or to clarify a misdescription of the name of a party already sued as defendant. The details of the omitted defendant could easily be gathered, if the certified copy of the sale deed had been read with due care and attention putting the plaintiff to the run, to get it corrected from the office of the Sub Registrar, or to verify the names of the vendees from the revenue records with regard to possession or ownership or both over the suit land." It is to be noted that in that case also the Full Bench reiterated the principle that if there was a bona fide mistake the amendment could be allowed. It was remarked :

"The golden streak which permeates the case law on the subject is to the effect that the amendment sought to be allowed by a party must be on account of bona fide mistake and as a result of inadvertence."

I may also quote here Munshi Ram v. Narsi Ram, 1983 PLJ 166 (SC). In that case the name of one of the vendees was omitted in the array of defendants. The vendees on the record filed written statement on 17th May, 1978 and one of the objections taken was that since all the vendees who had purchased the land had not been impleaded and since on that account the suit had become one for partial preemption, it was liable to be dismissed. On 14th June, 1978. the preemptor filed replication in which by way of reply to the above contention of the vendees, it was stated that it was untenable as all the vendees had been impleaded. It may be mentioned here that in the certified copy of the sale deed supplied to the plaintiff, the name of one of the vendees was missing. Before issues were framed in that case, in answer to the averments made by the counsel for the plaintiff that there was no basis for the above plea of nonjoinder of necessary parties, the counsel for the vendees on record read out the original sale deed in which it had been written that one Muni Devi was also a vendee alongwith the vendees on the record. On the next day the preemptor filed an application for impleading Muni Devi. The trial Court dismissed the amendment application and also the suit. The appeal filed by the preemptor in the Court of District Judge was also dismissed. The second appeal filed by the plaintiff was dismissed by this Court at the stage of motion hearing. The plaintiff appealed by special leave to the Supreme Court. The appeal was accepted and the case was remanded to the trial Court for disposal in accordance with law. Their Lordships remarked :

"In the written statement which was cleverly drafted, the name of Muni Devi was not mentioned. It merely stated that all the vendees had not been impleaded as defendants. The original sale deed which was with respondents 1 and 2 was not produced in Court along with the written statement. The appellant who had looked into the certified copy of the sale deed asserted that the plea that the suit should be dismissed for nonjoinder of necessary parties was untenable as all the persons who were shown as vendees in the certified copy had been impleaded. He had no reason to suspect that there was an error in the certified copy until the original sale deed was read out in the trial Court by the counsel for respondents 1 and 2 on June 14, 1978. It cannot be presumed that the appellant must have known that Muni Devi was also a vendee because the vendor was his father. In fact the appellant had nothing to gain by not impleading Muni Devi also as a defendant when he filed the suit and there could be no motive for doing so. It must, therefore, be held that the omission to implead her as a defendant was due to a mistake. If such mistake is made in good faith, the proviso to section 21(1) of the Act would be attracted. The meaning of the expression ''good faith'' is explained in section 2(h) of the Act thus : 2(h) " good faith" nothing shall be deemed to be done in good faith which is not done with due care and attention."

In the present case, it cannot be said that the plaintiff had any motive to give wrong description of one of the Khasra numbers sold or he was to gain anything by giving such description.

In fact, the learned counsel for the petitioners did not seriously dispute the proposition that if the preemptor had applied for amendment soon after the written statement was filed, there could not have been serious challenge to the proposed amendment. The main argument was based on "good faith". As noticed earlier, the plaintiff''s case was that in the jamabandi supplied to him Khasra No.1307/3 had been mentioned and only when the vendees filed the jamabandi, he came to know that the correct Khasra number was 1307/1. The learned counsel for the respondent pointed out, and it was not disputed by the learned counsel for the petitioners, that the area of both these Khasra numbers is 7 Marlas. On account of the wrong description of the Khasra numbers in the jamabandi, the preemptor might be under the belief that Khasra No. 1307/1 has been wrongly mentioned in the sale deed. There is no dispute on the point that the plaintiff filed the suit for preempting the whole land. In such circumstances the only inference that can be drawn is that the plaintiff laboured under a foolish mistake. He was not to gain anything by describing one of the Khasra numbers wrongly.

The learned counsel for the petitioners has also relied upon Banta Singh and others v. Shrimati Harbhajan Kaur and others, 1974 PLJ 328, in support of his argument that amendment of plaint should not be allowed if it takes away a valuable right that has accrued to the opposite party by lapse of time. According to him, in the present case when the application for amendment was made in a lower Appellate Court, the time for filing the suit for preemption had already expired and thus a valuable right had accrued in favour of the vendees. I need not discuss the above case in detail as there is no dispute with this proposition. However, every case has to be decided on its own facts and as noticed earlier, the main thing to be considered is whether the plaintiff applying for amendment in a preemption suit is acting in good faith or not. In the present case I have already discussed above that no ulterior motive can be attributed to the plaintiff for not applying for amendment before the date he actually did.

Now I may take some of the authorities where description of the property sought to be preempted was allowed to be corrected by way of amendment. In Hakam Chand and others v. Sham Lal and others, 1979 PLJ 186 the plaintiffs sought to preempt some land. The total area of the land sought to be preempted was correctly given. While mentioning in the plaint the Killa numbers in which the land sold was comprised, in place of Killa No. 9, Killa No. 8 was written. The vendees contested the suit. One of the objections taken was that the suit was bad for partial preemption, the plaintiffs having not sought possession of Khasra No. 9. After recording evidence of the parties, the trial Court upheld the said objection of the vendees and dismissed the suit. The preemptors went in appeal against the decree of the trial Court and during the pendency of the appeal they filed an application for permission to amend the plaint so as to delete Killa No.8 and substitute Killa No. 9 instead thereof. The Additional District Judge allowed the application. The vendees came to this Court in revision. On behalf of the petitioners reliance was placed upon Banta Singh''s case (supra). Goyal, J. who rendered the judgment in the revision petition remarked as follows :

"I am, however, unable to agree with the contention of the learned counsel. In the Full Bench decision, the disputed sale apart from agricultural land, included six rooms whereas in the plaint only five rooms were entered. The vendees took the plea of partial preemption and in spite of that plea the plaintiffs never cared to amend the suit till it was dismissed by the trial Court because of partial preemption. In the present case, on the facts stated, it cannot be said that suit was bad for partial preemption. The sale was of 23 Kanals of land and the plaintiff filed a suit to preempt the whole of the land but while describing the land, instead of Killa No. 9 Killa No. 8 of rectangle No. 59, was entered. This mistake had occurred because in the certified copy of the sale deed obtained by the plaintiffs Killa No. 8 was entered. In a similar situation in Sodhi Singh and others v. Basant Singh and another, 1962 PLR 633, where the extent to the land had been correctly entered in the plaint but one of the Killa numbers was omitted, the amendment was allowed even after the expiry of the limitation for filing the suit for preemption. In the Full Bench case of Banta Singh (supra) it was observed that in Sodhi Singh''s case, the total area of the land had been correctly mentioned in the suit but one of the Khasra numbers was omitted inadvertently. This observation of the Full Bench clearly shows that the contention that the suit was bad for partial preemption was not accepted. The present case is on a better footing than Sodhi Singh''s case (supra) because here the petitioners have not omitted any Killa number but have only wrongly described one Killa number as Killa No. 8 instead of Killa No. 9. As the order allowing the amendment was approved by the Full Bench in Sodhi Singh''s case (supra), it cannot be said in the present case that the lower appellate Court acted illegally in allowing the amendment on the analogy of said Full Bench decision."

The revision petition was accordingly dismissed. In Karam Singh v. Charan Singh and another, AIR 1972 P&H 295 and Teja Singh and others v. Bhagwan Singh, 1970 PLR 669, also the preemptor was allowed to correct the description of the property sold.

In Ajay Kumar v. Kishori Lal and others, 1983 Revenue Law Reporter 418, which was a preemption suit, there were 7 vendees. On 8th October, 1982 three vendees filed a joint written statement without taking an objection that any of the vendees was left out from the array of defendants. On 28th October, 1982 a separate written statement was filed by 2 more vendees in which inter alia an objection was taken to the effect that Bhim Singh son of Gopal was also one of the vendees and he was a necessary party to the suit and as he had not been made a party, the suit was bad for nonjoinder of the parties. The case was adjourned to 2nd November, 1982 on which date the plaintiff filed an application for amendment of the plaint to correct the name of defendant No. 6, whose name in the plaint was given out as Chiman Singh son of Gopal son of Dev Shai, to be read as Bhim Singh son of Gopal son of Devi Shai on the ground that the name of the said vendee had been wrongly typed in the plaint due to inadvertence. That application was contested by the vendees on the ground that valuable right had accrued to them by lapse of time. The trial Court dismissed that application for amendment on the ground that the mistake was not bonafide as the name of Bhim Singh, one of the vendees, had been clearly mentioned in the copy of the sale deed obtained by the pre emptor. The preemptor came to this Court in revision. G.C. Mital, J. allowed that revision petition.

As noticed earlier, in the present case there is no dispute about the fact that the plaintiff had correctly given in the plaint the area of the land sought to be preempted. This land was comprised in three Khasra numbers. The plaintiff mentioned three Khasra numbers in the plaint. However, he misdescribed one Khasra number. The plaintiff is said to have come to know about his mistake on 24th August, 1983. Soon thereafter he filed the application for amendment. In the circumstances of the present case, the learned trial Court rightly allowed the amendment.

For the forgoing reasons I do not find any force in the present revision petition and dismiss the same leaving the parties to bear their own costs.