Narasilal Rajabai Patel vs M. Sathish M. Bhonsle

C.R. Kumaraswamy, J.—This Regular First Appeal is filed under Section 96 read with Order XLI Rule 1 of CPC against the judgment and decree dated 31.07.2012 passed in O.S. No. 4355/1997 on the file of the XI Additional City Civil Judge, Bangalore City, dismissing the suit for permanent injunction.

Parties will be referred with reference to the status in the Trial Court.

The case of the plaintiffs in the Trial Court is as under:

"The plaintiffs have executed a Power of Attorney dated 20.05.1997 in favour of the Power of Attorney Holder. The Power of Attorney Holder is competent to represent the plaintiffs in the above suit. Plaintiff No. 1 is the absolute owner of the property bearing No. 9, Corporation Division No. 29/1, 1st Main Road, Attiguppe, Jodi Kempapura Agrahara, Bangalore-560 040, referred to as ''A'' schedule property. Plaintiff No. 1 has purchased the schedule property from its earlier owners Sri. Umapathi, S. Ramakrishna, S. Shakunthala, S. Lalitamba and S. Kanta by virtue of registered sale deed dated 26.03.1992. Subsequent to the purchase, plaintiff No. 1 has paid betterment charges to the Corporation and also applied for change of khatha in his name in respect of schedule ''A'' property.

The plaintiffs state that prior to the purchase of the property by the first plaintiff, the property was managed by Sri. Umapathi, its earlier owner. He has paid property tax in respect of the said property. The Encumbrance Certificate pertaining to schedule ''A'' property confirms the uninterrupted title in respect of the property. Presently, the khatha of the property stands in the name of Umapathi. The application filed by the first plaintiff for change of khatha to his name is pending for consideration. Since the date of purchase, the first plaintiff has been in exclusive and uninterrupted possession of schedule ''A'' property. The defendants have no right, title or interest in respect of W schedule property.

The plaintiffs state that the second and third plaintiffs are the absolute owners of the property bearing No. 8, Corporation Division No. 29/A situated at 1st Main Road, Attiguppe Village, Bangalore-560040 having purchased the same by virtue of registered sale deed dated 26.03.1992. The properties purchased by the second and third plaintiffs by virtue of two sale deeds are referred to as schedules ''B'' and ''C.

The khatha of the said property continues to be in the name of the earlier owners Sri. Doddaiah and Sri. Akkappa. The erstwhile owner has paid the property tax in respect of the property. The second plaintiff has paid betterment charges to the Corporation and also filed an application for transfer of khatha to his name. The second and third plaintiffs have been in exclusive and uninterrupted possession of the suit schedule property from the date of its purchase. The defendants herein have no manner of right or title over the suit property.

The plaintiffs state that even though the plaintiffs have been in continuous and exclusive possession of the respective suit schedule properties, the defendants with dishonest and ulterior intention to make unlawful gain, attempted to interfere with the possession of the plaintiffs, on 05.06.1997 along with their henchmen. Due to timely interference by the neighbourers and well-wishers, the defendants did not succeed in their attempt. The act of the defendant is unlawful and illegal and is opposed to all cannons of law. Hence, they are liable to be restrained by the equitable order of injunction. In fact, the defendants threatened to dispossess the plaintiffs.

The plaintiffs state that the cause of action for the above suit arose on 05.06.1997 and it is still subsisting continuously. Therefore, the plaintiffs prayed to pass judgment and decree and an order of permanent injunction restraining them, their agents, henchmen or anybody claiming through them from interfering with the peaceful possession and enjoyment of the suit schedule properties and from dispossessing the plaintiffs from the suit schedule properties."

In the Trial Court, defendant Nos. 2 and 3 remained absent, inspite of service of summons. Therefore, they were placed ex-parte.

Defendant No. 1 has filed written statement as under:

"The suit as brought is not maintainable either in law or on facts. The suit as brought for bare injunction without seeking the relief of declaratory decree is not maintainable.

It is incorrect to state that the plaintiffs have executed a Power of Attorney dated 20.05.1997 in favour of Shashindra S.K. who has filed this suit. It is also false to state that plaintiff No. 1 is the absolute owner of the property bearing No. 9, Corporation Division, No. 29/1, 1st Main Road, Attiguppe, Jodi Kempapura Agrahara, Bangalore-560 040, which is described in Schedule - A of the plaint. It is also false to state that the same was purchased by plaintiff No. 1 from its earlier owners, Sri. Umapathy, S. Ramakrishna, S. Shakunthala, S. Lalithamba and S. Kantha under a registered sale deed dated 26.03.1992. The documents which are referred and produced by the plaintiffs in para-6 of the plaint are irrelevant in so far as the suit schedule property is concerned.

It is absolutely false to state that plaintiff No. 1 has been in exclusive and uninterrupted possession of ''A'' schedule property ever since from the date of alleged purchase. The averments made in para-8 of the plaint were denied as false. The tax paid receipts, the khatha certificate and encumbrance certificate do not pertain to the property belonging to the defendant and the said documents have no value. It is false to state that the khatha of the property continue in the name of Sri. Doddaiah and Akkappa. It is false to state that the defendants have no right, title and interest over the suit ''B'' and ''C schedule properties.

The description of the properties as described in ''A'', ''B'', ''C and TT schedules have nothing to do with the realities. The said properties do not tally with the property belonging to this defendant. The boundaries mentioned in the plaint schedule is not at all tallying with the sites situated in the said survey number. It is further stated that there is dispute with regard to identity of the property and the description given by the plaintiffs pertains to the revenue sites which does not exist at all.

This defendant states that he is a member of second defendant Association which is a registered Association. The second defendant has purchased the land to an extent of 12 acres and 22 guntas in survey Nos. 142 and 143 of Kempapura Agrahara, Bangalore North Taluk and the same is acquired by the City Improvement Trust Board, Bangalore, in lieu of some other lands in Sy. Nos. 333/1 to 5, 334/1 and 2, part of Sy. No. 335 measuring 12 acres and 22 guntas in Kempapura Agrahara, which has been allotted by B.D.A., Bangalore, vide No. AL.PR.2/1178/74-75 dated 16.09.1974 subject to payment of conversion charges of Rs. 51,079/-.

The Bangalore Development Authority has delivered the possession of the allotted lands as per their letter No. AL.PR.1178/74-75 dated 16.09.1974. Thus, the second defendant became the absolute owner of the lands bearing Sy. Nos. 333/1 to 5, 334/1 and 2, part of Sy. No. 335 (12 acres and 22 guntas) in Kempapura Agrahara. The said society has formed a layout.

The Bangalore Development Authority approved the said layout vide resolution No. 028 of 23.07.1984 and letter No. BDA/TPM/DSY/503-84-85 dated 24.11.1984. After formation of the layout by the second defendant, the first defendant who is the member of the second defendant society has allotted a site bearing No. 215 and this defendant had purchased the said site from the second defendant for a sum of Rs. 30,360/- and the second defendant has delivered possession of site bearing No. 215 and ever since from the date of purchase by this defendant, he is in possession and enjoyment of the said site, as absolute owner thereof and the plaintiffs have no right, title or interest over the same. The khatha of the said property is standing in the name of the first defendant. The first defendant has paid the tax in respect of the suit schedule property and the first defendant has been in uninterrupted and exclusive possession of the property mentioned in the written statement. The possession certificate issued by the said society is produced. An endorsement issued by the B.D.A., Revenue Office, West Range, Vijayanagar, Bangalore, dated 31.12.1999 is also produced. The Registered Sale Deed dated 23.01.1985 is also produced along with the survey sketch and approved layout plan. The first defendant has also produced the Xerox copy of Karnataka Gazette Part-III Section 3 dated December, 1976 and Mysore Gazette dated 05.08.1971. When the first defendant applied for change of khatha in his name to the Corporation, the officials have delayed to transfer the khatha in his name. Hence, the first defendant has filed W.P. No. 35453/1998 before this Court. This Court directed the Corporation to consider the case of the first defendant for affecting khatha in his name within six weeks from the date of the order i.e. 19.07.1999. Accordingly, khatha was transferred in the name of the first defendant.

When the plaintiffs made attempts to interfere with the schedule property, defendant No. 1 approached the jurisdictional police and obtained protection.

It is stated that the land has already been converted from revenue land to non-revenue land i.e. the land was acquired by the Bangalore Development Authority. Then, sites were formed by the second defendant which were approved by the Bangalore Development Authority. Therefore, the very suit as framed is not maintainable either in law or on facts and the same is liable to be rejected. When once the land in question was acquired by the Bangalore Development Authority much earlier to the purchase by the plaintiffs from a person who had no title over the same, the plaintiffs cannot have a better title than this vendor and the plaintiffs cannot be in lawful possession and enjoyment of the suit schedule properties under any circumstances."

Based on the above pleadings, the trial Court has framed the following issues:

"1) Whether the plaintiffs prove that as on the date of filing of the suit, they were in lawful possession of the suit schedule properties?

2) Whether the plaintiffs prove that the defendants tried to interfere with their peaceful possession of the suit schedule properties?

3) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?

4) What order or decree?"

The trial Court has answered the above issues as under:

"Issue No. 1: In the negative

Issue No. 2: In the negative

Issue No. 3: In the negative

Issue No. 4: As per final order"

The sum and substance of the finding of the trial Court is as under:

"The trial Court at para-9 of the judgment has observed that plaintiff No. 1 purchased plaint "A" schedule property, plaintiff No. 2 purchased plaint "B" schedule property and plaintiff No. 3 purchased the plaint "C" schedule property under separate sale deeds dated 26.03.1992, which are marked as Exs.P18, P2 and P3 respectively.

The trial Court at para-10 of the judgment has observed that on perusal of Exs.P2 and P3, it could be seen that one Narasamma mother of the vendors Doddaiah and Akkappa, (died on 24.11.1977) and she was the owner of the plaint "B" and "C" schedule properties. As per Ex. P.18, one N. Siddaiah, father of the vendors, Sri. Umapathy, Sri. Basavaraju, Sri. S. Ramakrishna, S. Shakuntala, S. Lalitamma and Miss. S. Kantha (died on 29.10.1991) and he was the owner of plaint "A" schedule property. The khatha in respect of plaint "B" and "C" schedule properties still stand in the name of the vendor Doddaiah and Akkappa and the khatha in respect of plaint "A" schedule property is still standing in the name of the vendor Sri. Umapathy.

The trial Court at para-11 has mentioned that it is the case of the 1st defendant that 2nd defendant Association had purchased 12 acres 22 guntas of land in Sy. No. 142 and 143 of Kempapura Agrahara and the same was acquired by CITB, Bangalore and in lieu of it, it granted 12 acres 22 guntas of land to 2nd defendant in Sy. Nos. 333/1 to 5, 334/1 and 2 and part of Sy. No. 335 of Kempapura Agrahara and later, Bangalore Development Authority has allotted the said lands to the 2nd defendant Association, which formed sites and one among such sites bearing No. 215 has been allotted to the 1st defendant and that the plaintiffs are claiming that the said site belonged to them. Ex. D5- Gazette Notification reveals that the lands bearing No. 333/1 to 5, 334/1 and 2 and part of Sy. No. 335 of Kempapura Agrahara were acquired by the Government. Ex. D6-letter dated 14.02.2000 addressed by the Bangalore Development Authority to the Deputy Commissioner (South), BBMP, Bangalore indicates that the said lands were allotted to the 2nd defendant Association and it has formed sites therein and site Nos. 210 to 216 are carved out in Sy. No. 333/1 to 5 of Kempapura Agrahara. Ex. D7-letter dated 23.11.1999 addressed by the BBMP, Bangalore, to the Bangalore Development Authority reveals that Site No. 215 has been allotted to the 1st defendant. Ex. D8-letter dated 31.12.1999 addressed by the Revenue Officer, BBMP, indicates that katha is made in the name of 1st defendant in respect of Site No. 215. Ex. D9 is the approved layout plan in respect of Sy. No. 333/1 to 5, 334/1 and 2 and part of Sy. No. 335 of Kempapura Agrahara and it discloses that site Nos. 212 to 222 are carved out in the said lands. Ex. D10 is the sale deed dated 23.01.1985 executed by the 2nd defendant Association in favour of the 1st defendant conveying site No. 215. Ex. D11 is the possession certificate dated 28.02.1986, according to which, possession of site No. 215 was given to the 1st defendant. Ex. D13-Katha certificate and Ex. D14-Katha extract disclose that katha in respect of site No. 215 is made out in the name of the 1st defendant. The first defendant has paid taxes upto date as could be seen from the tax paid receipts at Exs.D15 to D21. Thus, the 1st defendant has placed sufficient materials on record to establish his title and possession over site No. 215 carved out in Sy. No. 333/1 to 5, 334/1 and 2 and part of Sy. No. 335 of Kempapura Agrahara.

The trial Court at para-13 of the judgment has observed that it is relevant to note that PW1-Tyagaraju, Power of Attorney Holder of the plaintiffs has admitted in his cross-examination that the application filed by the plaintiffs for change of katha in their names in respect of suit schedule properties came to be dismissed by the Revenue Officer, against which, they preferred Review Petition before the Addl. Commissioner, BBMP, and the same came to be dismissed. Ex. D1 is the certified copy of Review Petition dated 31.03.2004 filed by the plaintiffs before the Deputy Commissioner (South), BBMP, in para-4 of Ex. D1, it is stated as under:

"By common order dated 13.08.2001, the respondent rejected the applications of the petitioner herein by stating that the boundaries shown in the sale deed of the petitioner do not tally with the actual boundaries on the ground. He further stated that one Sri. Satish Bonsle''s had made an application for change of katha in his name and the boundaries in Satish Bonsle sale deed tallied with the actual boundaries on the ground. Therefore, the applications filed by the petitioners for change of katha came to be rejected."

The trial Court at para-14 of the judgment has mentioned that the plaintiffs have filed petition seeking an order for cancellation of the katha made in the name of defendant Nos. 1 and 3 and others to effect the katha in respect of the plaint schedule properties in their names. The learned Joint Commissioner after hearing arguments of both sides was pleased to dismiss the petition filed by the plaintiffs and directed them to approach Civil Court to establish their title over the suit schedule properties. The plaintiffs have challenged the said order in WP No. 46061 of 2004 before this Court and vide order dated 19.07.2006, this Court has observed that the sale deeds are executed in favour of the 1st defendant and 3 others in 1985 and on the basis of the said sale deeds, katha has already been made out in their names and katha is standing in their names for nearly 10 years and they have been paying the taxes. It is further observed that there is a serious dispute regarding title in respect of the plaint schedule properties and the question whether the properties claimed by the plaintiffs are acquitted, layout is formed and sites are allotted to D1 and three others are to be gone into and this Court has concurred with the finding of the learned Joint Commissioner in directing the plaintiffs to approach the Civil Court for adjudication of their title and finally dismissed the writ petition. The plaintiffs have challenged the said order in Writ Appeal No. 1441/2006 before the Division Bench of this Court and vide judgment dated 26.03.2008, which is produced at Ex. D22, the said appeal came to be dismissed.

The trial Court has further observed that it is clear that the plaintiffs and defendant Nos. 1 and three others are fighting for one and the same properties. Further more, during the cross-examination of DW1, it is suggested that the plaint schedule properties are unacquired lands in Sy. Nos. 333/1 to 5, 334/1 and 2 and part of Sy. No. 335 of Kempapura Agrahara. According to Ex. D6, entire Sy. Nos. 333/1 to 5 and 334/1 and 2 are acquired by the Government. Thus, according to the suggestion given to D.W.1, the properties are the part of Sy. No. 335, which is left out from acquisition proceedings. But, as per Ex. D6, site Nos. 210 to 216 are formed in Sy. No. 333/1 to 5. Therefore, even according to the suggestion put to DW1 on behalf of the plaintiffs, the plaintiffs and the 1st defendant are litigating for the same properties. The trial Court has come to a conclusion that it has no hesitation to reach the conclusion that the plaintiffs on one hand and defendant No. 1 and 3 others on the other hand are claiming right over one and the same properties.

The trial Court at para-15 of the judgment has mentioned that from the documents at Exs.D1 to D3 and D22, it is made clear that there is a serious dispute regarding title of the plaintiff over the suit schedule properties. Further, they have not produced any acceptable evidence either oral or documentary to show that they are in possession of the suit schedule properties as on the date of the suit. On the other hand, the 1st defendant has placed convincing documentary evidence to show that he has acquired site No. 215 by virtue of the sale deed executed by the 2nd defendant Association and he is in possession of the same.

The trial Court at para-16 of the judgment has observed that for the reasons best known to them, they have not filed any suit for declaration of their title in respect of the suit schedule properties nor got the plaint amended in this suit for the relief of declaration of their title over the suit schedule properties.

The trial Court at para-17 of the judgment has observed that Ex. P47 is the certified copy of the judgment in OS No. 4098/2000 and Ex. P48 is the certified copy of the decree in OS No. 4098/2000. Learned counsel for the plaintiffs put forth the contention that the plaintiffs are in possession of the suit schedule properties. It is relevant to note that the said suit was filed only against BBMP, Bangalore, and none of the defendants is party to the said suit. Therefore, it cannot be said that the judgment and decree passed in OS No. 4098/2000 is binding on the 1st defendant. Therefore, the trial Court was not able to accept that the plaintiffs are in possession of the plaint schedule properties.

The trial Court has observed at para-18 of the judgment that in the case on hand, there is serious dispute regarding the very existence of the suit schedule properties as described in the plaint schedule, because the 1st defendant has taken contention that the survey number of lands in which the suit schedule properties are formed is not mentioned in the plaint and further according to 1st defendant, the land in which, the suit schedule properties are formed were acquired by the CITB, Bangalore and allotted to the 2nd defendant. There is no essential averments in the plaint regarding these aspects.

The trial Court at para-20 of the judgment has mentioned that the plaintiffs have failed to prove their possession much less lawful possession over the plaint schedule properties as on the date of the suit.

The trial Court at para-21 of the judgment has mentioned that since the plaintiffs have failed to prove their possession over the suit schedule properties as on the date of the suit, the question of interference by the defendants with the plaintiffs'' possession of the suit schedule properties does not arise. Therefore, the trial Court came to a conclusion that the plaintiffs are not entitled for the relief of permanent injunction."

Feeling aggrieved by the same, the plaintiffs have preferred this appeal.

I have heard Sri. Shaker Shetty, learned counsel appearing for the appellants, Sri. Udaya Holla, learned Senior Counsel appearing for respondent No. 1 and the learned counsel for respondent Nos. 2 and 3.

Learned counsel Sri. K. Shaker Shetty appearing for the appellants submits as under:

"Identity of the property is disputed. There is no proof of acquisition. They are not claiming the properties of the defendants. The properties of the defendants cannot be identified. BDA has granted land to them on 16.09.1974. BDA was not in existence during 1974. The BDA Act came into force during 1975. The society is not owner of the schedule property. Suit schedule properties are not one and the same. Ex. D10 is the sale deed. That on 22.03.1993 possession was handed over.

He further submits that there is an error apparent on the face of the record and same is contrary to the oral and documentary evidence adduced by the appellants. The Court below has failed to consider that total extent of property of the appellants is measuring 12,703 Sq. Ft., whereas the 1st respondent claims less than 2,500 Sq. Ft. 2nd respondent and 3rd respondent did not contest the matter. In spite of the said fact, conclusion of the Court below is that the property of the appellants and the 1st respondent are one the same. The said conclusion is erroneous and dismissing the suit of the appellants only the on the said ground is illegal and arbitrary. The Court below has further failed to consider that no proper issues are framed pursuant to the written statement filed by the 1st respondent in respect of acquisition of the land belonging to the plaintiffs by the BDA and regarding claiming of the same land by the plaintiffs and 1st respondent. Without framing such issues, the court below came to the conclusion that the plaintiffs and 1st respondent are claiming the same property. Further, the Court below erroneously held that the documents produced by the appellants are not proper and the documents produced by the 1st respondent is proper, without framing any issue in that respect. The first respondent himself admitted in his cross-examination that he cannot identify his site. Further, he has admitted that schedule W, ''B'' and ''C land is covered by single compound. In spite of the said fact, the Court below came to the conclusion that the 1st respondent herein is in possession of the property in question and the appellants have not proved their lawful possession over the property in question.

He further submits that the finding given by this Court and the Deputy Commissioner, BBMP in the proceedings in respect of change of katha under Section 114 of the Karnataka Municipal Corporation Act has nothing to do with the proceedings before the Civil Court in the injunction suit. The finding given by the Corporation in the proceedings relating to change of katha and the proceedings before the trial Court are entirely different. In the injunction suit, issues are different. Merely because katha is not changed in favour of the appellants from the previous owner, it cannot be treated that the appellants are not in lawful possession of the suit schedule property. The Court below failed to consider that the appellants and 1st respondent have produced similar set of documents in respect of possession of the property in question. Since the property in question is a vacant land, they could not have given better documents to establish their possession. However, the Court below accepted the documents produced by the 1st respondent and believed the statement of the 1st respondent. The documents produced by the appellants and the evidence given by the appellants are not accepted by the court below. Therefore, the finding of the Court below is highly discriminatory in nature. Katha was not transferred in the name of the appellants due to the objection raised by the respondents. Under those circumstances, the Corporation came to the conclusion that the said dispute ought to be resolved in the Civil Court. The said finding was upheld by this Court. Dismissing the injunction suit solely on the said ground is erroneous and illegal.

The Court below has further failed to consider that the appellants had produced the sale deed in respect of the Schedule W, ''B'' and ''C properties are concerned, document regarding payment of betterment charges and tax paid receipts in respect of the said property. The appellants have also produced the evidence to show that the 1st respondent and his men were disturbing the peaceful possession of the appellants in respect of the schedule property. In spite of such evidence, the Court below erroneously came to the conclusion that the appellants are not in lawful possession and disturbance by the 1st respondent are not proved. The Court below has further failed to consider that the appellants are still in possession of the schedule property. The first respondent is claiming less than 2500 Sq. Ft. out of 12,703 Sq. Ft."

Learned counsel for the appellants has relied on the following rulings:

"1. In the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, ; the attention of this Court was invited to Head Notes ''A'' and ''B'' and Paragraph Nos. 12, 13 and 14, which reads as under:

"(A)Civil P.C.(5 of 1908), O.6, R. 17-amendment of pleading-Sought after substantial delay-Can be allowed-Amendment sought after relief is barred by limitation-Can even be allowed in appropriate cases if that subserves cause of justice and avoids further litigation.

(B) Civil P.C. (5 of 1908), O.6, R. 17-Amendment of pleading-Addition of new relief-Suit for permanent injunction restraining interference with possession- Amendment seeking declaration of title-Dispute between parties on question whether declaration sought was barred by limitation-Rejection of amendment without considering question of limitation is incorrect-Moreover, factual details as regards title were already mentioned in plaint-It cannot, therefore, be said that by amendment new relief was being claimed.

So far as the Court''s jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.

But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments?

The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disavowing an amendment of pleadings. Each case depends on the factual background of that case."

In the case of T.P. Palaniswami and Another Vs. Deivanaiammal and Others, ; the attention of this Court was invited to Paragraph Nos. 3 and 7, which reads as under:

"3. On going through the fair order the court below as well as keeping mind the principles governing amendments. I am obliged to sustain the submissions made by the learned counsel for the petitioners. The court below has declined to accept the explanation offered by the plaintiffs for non-inclusion of the well earlier in the suit items, pointing out certain commissions and omissions which, according to the court below, would disentitle them from seeking the amendment at this stage. I am not able to appreciate and accept this reasoning of the court below. If, in fact the plaintiffs were aware of the existence of the well, in the concerned survey number, it would be highly improbable that they would have consciously and willfully omitted to include the same the suit items. Negligence or carelessness, or belatedness need not be put against a party seeking amendment if facts and circumstances of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in, the same lis. The explanation offered appears to be a plausible one and deserves acceptance. The rules of procedure are nothing but handmaids of substantive law and justice and the intention must be to dispense justice in the real sense and pure technicalities at the level of procedure shall not stand in the way of courts to recognize rights of parties, which they are otherwise entitled to. It is true, there are limitations on the wide powers of the court to amend the pleadings, but I do not find that any such limitation comes into play on the facts of the present case.

Under Order 6 Rule 17 of the Code, the court may at any stage of the proceedings, allow either party, to amend his pleadings and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties. In a suit for partition, the quantum of the estate is a question in issue and if there had been inadvertence or omission to include a particular item, the court is duty bound to allow the amendment and while doing so, it will inappropriate to adjudicate upon the questions which would arise, on the amendment being allowed and that stage will come only later after the amendment is allowed, issues are framed and the parties placed their evidence and made their submissions through arguments. If these principles are kept in mind, I am not able to spell out a support for the order of the court below."

In the case of A.K. Gupta and Sons Vs. Damodar Valley Corporation, the attention of this Court was invited to Paragraph Nos. 7 and 8, which reads as under:

"7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neale, (1887) 19 QBD 394 . But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see AIR 1921 50 (Privy Council) and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., .

The principal reasons that have led to the rule last mentioned are first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith, (1884) 26 Ch D 700 (710-711)) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended ( Kisandas Rupchand and Others Vs. Rachappa Vithoba Shilvant and Others, at p.651, approved in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, ."

In the case of Suraj Prakash Bhasin Vs. Smt. Raj Rani Bhasin and Others, the attention of this Court was invited to Paragraph Nos. 3 and 5, which reads as under:

"3. The trial court, in exercise if its discretion, allowed the amendment and the High Court in revision, refused to interfere. In the view of the courts below there was not such a total transformation of the nature of the litigation as to deny the prayer for amendment. On the other hand, the facts were substantially the same; the case of partnership was already present in embryonic form in the original plaint and multiplicity of suits would be avoided by grant of the amendment. "Thus, there is no basis whatsoever for interference and this revision application is hence liable to be dismissed". Concluded the High Court.

The arguments urged with vigour by counsel for the appellant were calculated to make out the gross delay on the part of the plaintiff-respondent in seeking amendment, the dubious device of developing a case of partnership and seeking relief thereon while leaving such a cause dormant in the original plaint and the utter untenability of the newfangled version of a partnership. Granting these grounds for the sake of argument, we are far from satisfied that the trial court has been guilty of such misexercised of discretion as to call for this court''s intervention. It is well known that amendments of pleadings are within the discretion of the court although judicial discretion is not wild humour. Justice Cardozo, with juristic accuracy and literary felicity, expressed exquisitely the principles governing judicial discretion: The nature of the Judicial Process Yal University Press (1921)

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a (discretion) disciplined by system, and subordinated to ''the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains."

In the case of B.K.N. Narayana Pillai Vs. P. Pillai and Another, the attention of this Court was invited to Paragraph No. 5, which reads as under:

"5. In the appeals the appellant-defendant wanted to amend the written statement by taking a plea that in case he is not held a lessee, he was entitled to the benefit of Section 60(b) of the Indian Easements Act, 1882. Learned counsel for the appellant is not interested in incorporation of the other pleas raised in the application seeking amendment. The plea sought to be raised is neither inconsistent nor repugnant to the plea already raised in defence. The alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent-plaintiff and rebuttal to the issue regarding liability of the appellant of being dispossessed on proof of the fact that he was a licencee liable to be evicted in accordance with the provisions of law. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent-plaintiff could be compensated by costs. We do not agree with the finding of the High court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent."

In the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., the attention of this Court was invited to Head Notes ''A'', ''B'', ''C and ''D'', which reads as under:

"(A) Civil P.C. (5 of 1908), O.6, R. 17 -Amendment of written statement - Question of limitation can be allowed to be raised by way of an amendment of written statement.

Civil Revn. Nos. 1750, 1572 of 2005, D/-7-4-2005 (P and H), Reversed. (Para 13)

(B) Civil P.C. (5 of 1908), O.6, R. 17 -Amendment of Written Statement - Raising of alternative plea - Suit for declaration of ownership filed by plaintiff - Application for amendment of written statement stating that plaintiff did not have any income to pay consideration money of suit property and in fact parents of plaintiff had sufficient income to pay sale price; that after death of their parents, the suit property was mutated in the joint names of plaintiff and defendants in equal shares - Application for amendment was in fact an elaboration of defence case - And not withdrawal of earlier admission - Amendment incorporating an alternative plea of ownership - Can be allowed.

Civil Revn. Nos. 1750, 1572 of 2005, D/-7-4-2005 (P and H), Reversed. (Paras 13, 14)

(C) Civil P.C. (5 of 1908), O.6, R. order 6 rule 17, O.8, R. order 8 rule 1 - Amendment of written statement -Inconsistent pleas can be raised by defendant in written statement although same may not be permissible in case of plaint - That cannot be ground to refuse amendment.

Civil Revn. Nos. 1750, 1572 of 2005, D/-7-4-2005 (P and H), Reversed. (Para 16)

(D) Civil P.C (5 of 1908), O.6, R. 17, Proviso (as inserted by Act of 2002) -Amendment of written statement - Shall not be allowed when trial of suit has already commenced - ''Commencement of trial'' as used in proviso must be understood in limited sense as meaning final hearing of suit, examination of witnesses, filing of documents and addressing of arguments."

In the case of Tharayil Sarada and Another v. Govindan and Another reported in (1933) 2 Supreme Court Cases 276; the attention of this Court was invited to Head Note, which reads as under:

"Civil Procedure Code, 1908 - Order 6, Rule 17 and Order 8, Rule 1 - Where plaintiff in second appeal allowed to amend his plaint, held, defendant must also be given opportunity to file an additional written statement, before passing a decree or order."

In the case of Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani, wherein it is held as under:

"It is well settled that the Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. We find no such grounds in this case."

In 1972 MYSORE LAW JOURNAL, the attention of this Court was invited to Item No. 45, which reads as under:

"Item No. 45: Civil Procedure Code. -O.6, R.17 - Suit for declaration and injunction - Deletion of relief for declaration - Does not change the nature of the suit.

The Judge was wholly wrong in taking the view, that the nature of the suit is altered. The suit is for declaration of title and also for injunction. Therefore, if the prayer for declaration goes, the only prayer that remains is for injunction. I am not able to see any change in the nature of the suit if the amendment is allowed. So both the reasons stated by the Judge are not correct and it has to be held that the order dismissing the application is not proper."

In the case of S.H. Kelkar and Others v. Mandakini Bai and Another reported in 1969(2) MYS.L.J; wherein it is held as under:

"Held (1) Although the reliefs were struck off, the original averments in the plaint were left in tact and hence the reliefs sought to be reinstated flowed from the averments already in the plaint and therefore the amendment was not open to objection."

In the case of Alum Sumangalamma by L.Rs. v. G. Veera Reddy and Another reported in 1969(2) MYS.L.J; the attention of this Court was invited to Head Note, which reads as under:

"CPC. (5 of 1908), Or. 7, R. 11 - Suit without notice under S. 80 against one defendant - Suit withdrawn and dismissed -Subsequent notice and addition of defendant - Right to and effect - Limitation Act (36 of 1963), S. 21(1) proviso."

In the case of Monnappa v. Chief Secretary, Govt. of Karnataka and Another reported in 1977 (2) KAR.L.J.; the attention of this Court was invited to Head Note, which reads as under:

"Held: The amendment sought was not such as to convert the suit into one which must needs be in a representative capacity and therefore the amendment should be granted."

In the case of E.K. Govindaraj v. Naria Bee and Others reported in VOL.XXIII 1973 Karnataka Series 1264; wherein it is held and attention of this Court was invited to paragraph No. 3, which reads as under:

"Held: The suit being one for injunction, what is primarily sought to be protected thereby is the possession of the suit property. Ordinarily, therefore, in majority of cases, the factum of possession on the date of plaint is practically the only matter which arises for adjudication by Courts. But it is not as if it that could make a general, absolute and unqualified statement that the question of title should never be gone solo at all or that should be become necessary to do so for a satisfactory disposal of a suit for injunction, one should necessarily insist upon a prayer for declaration of title or that an application made for the purpose of including such a prayer should necessarily be rejected.

The suit being one for injunction, what is primarily sought to be protected thereby is the possession of the suit property. Ordinarily, therefore, in majority of cases, the factum of possession on the date of plaint is practically the only matter which arises for adjudication by courts. But it is not as if that one could make a general absolute and unqualified statement that the question of title should never be gone into at all or that should it become necessary to do so far a satisfactory disposal of a suit for injunction, one should necessarily insist upon a prayer for declaration of title or that an application made for the purpose of including such a prayer should necessarily be rejected. The law governing the amendment of pleading is that all amendments must be allowed which are necessary to finally and satisfactorily adjudicate upon all controversies that may arise between the parties with reference to the subject matter of the suit. Refusal of amendments, therefore, circumstances where the question sought to be brought up for adjudication by way of amendment which is necessary for a satisfactory disposal of the suit it is, in my opinion, an error of law of sufficient seriousness standing in need of being corrected even in second appeal."

In the case of State Bank of Hyderabad Vs. Town Municipal Council, the attention of this Court was invited to Head Note, which reads as under:

"Code of Civil Procedure, 1908 - Order VI, Rule 17, Proviso (As inserted w.e.f. 1.7.2002 by 2002 amendment) read with Section 16(2) of Amending Act of 2002 -Amendment of Pleadings - Amendment of Plaint allowed by First Appellate Court -Proviso to Rule 17 - Applicability - Suit filed in 1998 - Proviso not application in view of Section 16(2) of amending act of 2002 - High Court committed illegality in relying on said proviso - impugned judgment set aside -matter remitted to High Court for consideration of appeal afresh."

Learned Senior Counsel, Sri. Udaya Holla, appearing for respondent No. 1, submits as under:

"Title of the property in question is not forthcoming. CITB has acquired the land. The successor of CITB is BDA. BDA handed over the actual possession to the society. Ex. D9 is the layout plan, wherein site number in question is mentioned as 215. Ex. D10 is the sale deed and Ex. D11 is the possession certificate. Notification is issued by CITB (predecessor in interest and title of Bangalore Development Authority (BDA)) for acquiring several lands including the lands bearing Sy. No. 333/1 to 333/5, 334/1, 334/2 and part of 335 of Kempapura Agrahara. The Bangalore Development Authority has allotted land bearing Sy. Nos. 331/1 to 333/5, 334/1 and 334/2 and part of Sy. No. 335 of Kempapura Agrahara in favour of the 2nd respondent, a registered society, namely Chamarajpet. Area Silk Handloom, Weavers and Exporters Association (for short '' Association'') in lieu of the acquisition their lands measuring 12 acres 22 guntas in Sy. Nos. 142 and 143 of Kempapura Agrahara Village. The Association formed layout and the same was approved by the BDA. Letter of BDA stating that layout is formed in Sy. Nos. 331/1 to 333/5, 334/1 and 334/2 and 335 is marked as Exs.D.8. Respondent No. 1 was allotted site bearing No. 215, measuring 60'' X 40'', totally measuring 2400 sq.ft. respondent No. 3 was allotted the site No. 214, situated in Kempapura Agrahara in the layout formed by the Association in Sy. No. 333/1 to 333/5, 334/1 and 2 part of Sy. No. 335 of Kempapura Agrahara. Possession was handed over to the 1st respondent vide possession certificate issued by the Association. Thereafter, khatha in respect of the above site was transferred in the name of the 1st respondent in the BDA records and respondent No. 1 was paying the applicable property tax. It is noticed and recorded by this Court in W.P. No. 35453/1998 that as the Bangalore City Corporation delayed transferring the khatha, this Court vide order dated 19.07.1999 in WP No. 35453/1998 directed the Corporation to consider the case of the 1st respondent to transfer the khatha in his name. Subsequently, khatha was issued in the name of the respondent No. 1 by BBMP and respondent No. 1 is paying the applicable property tax to the BBMP. Khatha certificate and Khatha extract are produced at Exhibits-D13 and 14 and latest tax paid receipts is produced at Exhibits-D15 to D21. The Bangalore Development Authority issued the certificate to the Bangalore Mahanagara Palike stating that site bearing No. 215 has been allotted in favour of 1st respondent and further BDA has issued the khatha Certificate in the name of the 1st respondent. Layout plan is approved by the Bangalore Development Authority showing the existence of Site No. 215 belonging to respondent No. 1 is produced at Exhibit -D8. Exs.D6, D7 and D8 are produced to prove that before the BBMP transferred khatha in the name of the 1st respondent in respect of site No. 215, BDA has confirmed the existence of site No. 215 and further, the khatha stands in the name of the 1st respondent. The appellants filed a review petition before the Joint Commissioner, Bangalore Mahanagara Palike seeking cancellation of khatha in the name of the 1st respondent. BBMP rejected the review petition filed by the appellants and directed the parties to approach the Civil Court to determine their title. The appellants preferred W.P. No. 46061/2004 before this Court and this Court dismissed the said petition and affirmed the order of BBMP. This Court specifically held that the BBMP was justified in directing the appellant to approach the competent Court for adjudication of their title. The appellants challenged the order passed in the said petition by filing an appeal in WA No. 1441/2006 before the Division Bench of this Court. The Division Bench of this Court dismissed the said appeal and affirmed the order of BBMP. The appellants filed a suit for bare injunction claiming that they are the owners of site Nos. 8 and 9 of Attiguppe village purchased under three registered sale deeds dated 26.03.1992 from their previous owners, Sri. Doddaiah and Sri Akkappa instead of filing a suit for declaration of title as directed by this Court. Sale deeds of the appellants are at Exs.P2, P3 & P18. In the sale deeds, nowhere survey number is mentioned. The site of respondent No. 1 is situated at Kempapura Agrahara village and not in Attiguppe as claimed by the appellants. Hence, the properties claimed by the appellants are totally different. No Khatha certificate, tax paid receipts are produced and the documents produced by the appellants do not relate to the property owned by the 1st respondent. Respondent No. 1 has filed detailed written statement denying the allegations made in the plaint and further reiterated that site owned by him is site No. 215 in the layout formed by the Association and that he is in peaceful possession of the same. The trial Court dismissed the suit of the appellants holding that the appellants have failed to prove their possession. Despite repeated directions by this Court, the appellants continued the suit for bare injunction and the suit of the appellants came to be rightly dismissed by the trial Court. This Court and the Hon''ble Supreme Court have time and again held that in a suit for injunction, the only question to be considered is regarding possession and the question regarding title is beyond the scope of enquiry. The appellants have failed to prove their title as well as possession."

Learned counsel for respondent No. 1 has relied on the following rulings:

"1. In the case of Bruce v. Silva Raj and Others reported in 1987 (supp) SCC 161; the attention of this Court was invited to Head Note, which reads as under:

"Civil Procedure Code, 1908-Order 39 Rule, 1 - Injunction can be granted in favour of a person only if he has possession of the property-If he has no possession, the possession of the adversary having been confirmed, no injunction can be granted."

In the case of E.K. Govindaraj v. Naria Bee and Others reported in Vol. XXIII 1978 Karnataka Series 1264; wherein it is held as under:

"In a suit for injunction only question is one of possession."

In the case of Shankaralingappa v. Nanje Gowda by LRs. reported in 1981 (1) Kar.L.J. 217; wherein it is held as under:

"What is decided in a suit for permanent injunction is only the fact of possession and nothing else.

In a suit for permanent injunction a finding on title is beyond the scope of the inquiry and cannot be sustained."

In the case of B.V. Subbachari and Others v. B.K. Joyappa and Another reported in 1994 (4) Kar.L.J. 364; wherein it is held as under:

"In a suit for permanent injunction, factor relevant for granting injunction, possession of plaintiff on the date of suit is relevant."

In the case of Tamil Nadu Housing Board Vs. A. Viswam (Dead) by Lrs., wherein it is held as under:

"A tress passer cannot claim injunction against the owner nor can the court issue the same."

In the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, wherein it is held as under:

"Suit for injunction simpliciter-Maintainability-plaintiffs claim for possession purely based on title through R who claimed to be owner in pursuance of oral gift in year 1961 without property being mutated in her name-Whereas defendant claimed title from original owner who was registered as owner in revenue records-Complicated question of title involved-Could be examined only in a title suit, for declaration and consequential reliefs, and not in a suit for injunction simpliciter."

In the case of Vishwambhar and Others Vs. Laxminarayana (Dead) through L.Rs. and Another, the attention of this Court was invited to Head Note ''B'', which reads as under:

"B. Civil Procedure Code, 1908- Or. 6 R. 17-Amendment of plaint -Effect on limitation vis-�-vis the original plaint-Held, amendment though properly made cannot relate back to the date of filing of the suit and cure the defect of limitation-Where the amendment changed the basis of the suit itself, the suit would be taken to have been filed on the date of the amendment for purposes of limitation."

In the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, wherein it is held as under:

"Amendment of pleadings cannot be allowed if it materially alters or substitutes cause of action."

In the case of Arundhati Mishra (Smt) Vs. Sri Ram Charitra Pandey, the attention of this Court was invited to Paragraph No. 3, which reads as under:

"3. It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisites are that the delay in making the application; the reason therefore should be given any considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted."

In the case of Radhika Devi Vs. Bajrangi Singh and others, the attention of this Court was invited to Head Note, which reads as under:

"Civil Procedure Code, 1908 - Or. 6 R. 17 - Amendment of pleading - seeking to take away right of the opposite party acquired by bar of limitation cannot be allowed - Gift deed executed and registered in favour of respondents (16 to 20) - Suit for partition filed by appellant in 1988 - WS filed by the respondents specifically stating about the gift made in their favour - But no steps taken by appellant to file application for amendment for 3 years thereafter - Ultimately application under Or. 6 R. 17 filed by appellant in Nov. 1992 seeking declaration that the gift deed was obtained by respondents illegally and fraudulently and therefore, it was ineffective and not binding on the appellant - By that time the suit for declaration within 3 years from the date of knowledge becoming time-barred - Held, appellant not entitled to amend the plaint - Registration of the gift deed was a notice to everyone and even after filing of the WS no steps having been taken for 3 years to amend the plaint, the accrued right in favour of the respondents would be defeated by permitting the amendment of plaint."

In the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, the attention of this Court was invited to Head Note, which reads as under:

"Civil Procedure Code, 1908- Or. 6 R. 17 & proviso and Or.41 R. 33-Amendment of pleadings - Discretion of court in regard would as a rule involved in exercise of - Limitation-Held, the court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application-However, this is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it-Held further, the appellate court has a coextensive power of the trial court."

In the case of Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and Others, the attention of this Court was invited to Head Note ''A'' and Paragraph Nos. 11 and 16, which reads as under:

"A. Civil Procedure Code, 1908-Or. 6 Rr. 7 and 17-Right of plaintiff to introduce a time-barred claim -Need of satisfactory explanation/bonafides of plaintiff-Suit for eviction-Plaintiff seeking amendment on the ground that defendant raised a new plea and changing his stand that he was not a tenant but owner of property-Claim of plaintiff barred by limitation-Whole amendment application not showing any explanation for substantial delay (from 1987 to 11-12-2004) in filing the amended claim -Held, the plaintiff was not entitled to introduce the said claim-Limitation Act, 1963, Ss. 5 and 3.

We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, at least regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.

Under the circumstances we would not permit the plaintiffs now at this stage to introduce a time-barred claim under the peculiar facts and circumstances of this case where we find a complacent negligence on the part of the plaintiffs apart from the towering delay of more than 15 years. We, therefore, allow this appeal and set aside the orders of the High Court as well as the trial court and dismiss the application for amendment dated 11-12-2004."

In the case of The Special Land Acquisition Officer, UKP, Bagalkot v. Malakajayya Mallayya reported in ILR 1996 KAR 1639; the attention of this Court was invited to Head Note ''B'' and Paragraph No. 3, which reads as under:

"(B) Limitation Act, 1963 (Central Act No. 36 of 1963) Section 3(1) - not only power but duty of Court to reject suit etc., after prescribed period.

In Special Land Acquisition Officer v. Gurappa Channabasappa Paramaj this court has held that a reference made by the Land Acquisition Officer under Section 18 of the Land Acquisition Act (as amended by Karnataka Land Acquisition (Amendment) Act, 1961) after the right of the claimant to make an application before the Civil Judge praying for a direction to call for reference Under Section 18 of the Act had become time barred, is invalid. It is further held that the Court has not only the power but also the duty to consider as to whether reference is time barred and, therefore, invalid: From Section 3(1) (of the Limitation Act) also, it is clear that it is the duty of the Court to decide whether the proceedings instituted before it was barred by time, even if the plea of limitation is not taken by the opposite party."

The points that arise for consideration in this appeal is as under:

"i) Whether any ground is made out to interfere with the impugned judgment?

ii) Whether the application filed under Order VII Rule 17 read with Section 151 of the Code of Civil Procedure seeking amendment deserves to be allowed?"

My answer to the above points is as under for the following reasons.

In Anand & Aiyer''s Commentary on the Specific Relief Act, 1963, 12th Edition, 2010 Publication, at page-1222, it is mentioned that Sub-section (3) of Section 38 lays down the conditions under which the defendants may be permanently injuncted from invading, or threatening to invade the plaintiff''s right to or enjoyment of the property. The law has detailed the four categories of cases specified in sub-clauses (a) to (d) of sub-section (3) of this section. They are,

"i) where the defendant is the trustee for the plaintiff;

ii) where there exists no standard for measuring the damages caused, or likely to be caused, by the actual invasion;

iii) where compensation in money would afford no adequate relief to the plaintiff;

iv) where the injunction is necessary to prevent multiplicity of judicial proceedings."

The injunction granted upon final trial is called perpetual injunction. In other words, the perpetual injunction is one that is granted by the judgment, that is during final disposal of the injunction suits. The perpetual injunction can be granted only by the decree made upon hearing on merits of the suit. The defendant is thereby perpetually injuncted from commission of an act in contrary to the rights of the plaintiff.

The ownership of immovable properties may be in the following three forms.

"i) the right of possession,

ii) the right of enjoyment,

iii) right of dispossession, alteration, destruction or alienation."

The grant or refusal of perpetual injunction is within the judicial discretion of the Court. The exercise of the discretion by the Court should be in accordance with the principles of justice, equity and good conscience.

When the plaintiff brings a suit for perpetual injunction for restraining the defendant from disturbing his possession over the land and applies for temporary injunction, the Court has to see whether the plaintiff was in possession of the land in dispute on the date of filing the suit. Possession is more relevant than the title.

Normally, the Court will refuse to grant injunction when there is delay, latches, and the applicant did not come to the Court with clean hands or has suppressed the material facts or when monetary compensation is the adequate relief. In this background, the Court will examine the overall aspects of the case and decide whether to grant injunction or not. In the instant case, the case of the plaintiffs is that he has acquired the land by virtue of three different sale deeds. The case of the first defendant is that he was allotted Site No. 215 by the Association. The CITB has acquired Survey Nos. 333/1 to 333/5, 334/1, 334/2 and part of Sy. No. 335. These lands were handed over to the Association by the Bangalore Development Authority, successor of CITB. A Notification under Section 16(2) of the Land Acquisition Act was published on 15.7.1975 in Mysore Gazette dated 9.12.1976.

The lands were acquired vide G.O. HMA 42 MNJ 71 dated 22.7.1971 published in Mysore Gazette on 5.8.1971. The particulars of the acquisition and date of taking possession as mentioned in Ex. D.4 are as hereunder:

Thereafter, these lands have been handed over to the Association, who in turn, have formed sites and allotted Site No. 215 in favour of defendant No. 1 and Site No. 214 was allotted in favour of defendant No. 3.

Learned counsel for the appellants submits that the identity of the property is in dispute. There is no proof of acquisition. He also submits that he is not claiming the properties of the defendants. The properties of the defendants cannot be identified. The appellants have produced the documents pertaining to payment of betterment charges and the title deeds namely Exs.P.2, P.3 and P.18-sale deeds dated 26.3.1992. The appellants relies on these documents and submits that they have a clear title and they are in possession and enjoyment of the schedule property. The defendants are interfering with their possession. Therefore, they sought injunction. He further submits that the Court at the first instance has granted temporary injunction and that is continued till disposal of the suit. Thereafter, this Court has granted injunction and it is still continuing.

It is also the contention of the learned counsel for the appellants that as on the date of acquisition, Bangalore Development Authority was not in existence. On careful perusal of the acquisition notification, it is clear that the lands in question were acquired by the CITB and later-on, its successor Bangalore Development Authority has transferred the property in favour of the Association. Therefore, the contention of the learned counsel for the appellants that Bangalore Development Authority was not in existence at the time of acquisition has no force and the same cannot be accepted.

One of the contentions urged by the learned counsel for the appellants is that the identity of the property cannot be ascertained. Except contending the same, he has not produced any acceptable evidence to prove that identity of the property of the defendants cannot be ascertained. He relies on paragraph-4 of Ex. D.1-order in review petition, wherein it is indicated that the boundaries shown in the sale deed of the plaintiffs does not tally with the actual boundaries on the ground. Except this, he was not able to establish his case that the sites allotted to defendants 1 and 3 are not one and the same. He also relies on the khatha of their previous vendor to show that the appellants are in possession of the property in question. It is also the contention of the learned counsel for the appellants that the documents produced by the defendants are fabricated. Except making this statement, he was not able to show as to how the documents are fabricated. He has also not filed rejoinder to the written statement filed by defendant No. 1. The learned counsel for the appellants relies on the FIR and charge sheet to point out that the defendants have encroached upon the property belonging to the plaintiffs. The Trial Court has considered these documents and has come to the conclusion that FIR and charge sheet are not the documents on which possession can be determined.

One of the contentions urged by the learned counsel for the appellants is that issues have been improperly framed. The parties proceeded to trial with full knowledge of the rival contentions, lead evidence in support of their respective case and the Trial Court considered the same in coming to the conclusion. Therefore, it cannot be said that the trial conducted by the Trial Court is vitiated. Even omission to frame issue, recasting of issue may not be fatal to trial. It is only an irregularity. It will not go to the root of the case.

At the first instance, the Additional Commissioner, BBMP, has made an observation that there is dispute between the plaintiffs and defendants in respect of the property in question and the Civil Court has to decide this aspect. Feeling aggrieved by the same, the appellants have preferred W.P. No. 46061/2004 before this Court. Even in the order passed by the learned single Judge, it is clearly observed that under Section 114 of the Karnataka Municipal Corporations Act, 1976, the authorities were justified in declining to make out khatha in the name of the petitioners and directed them to approach the competent Civil Court for adjudication of title and then to approach the authorities. Aggrieved by the same, the appellants preferred W.A. No. 1441/2006, which was dismissed confirming the view taken by the learned single Judge. Though the Commissioner of BBMP, learned single Judge and the Division Bench of this Court have taken a view that the appellants should file a suit for declaration of their title, the plaintiffs slept over the matter without seeking amendment or filing a suit for declaration that he is the owner of the suit schedule properties.

Though the plaintiffs have stated in the evidence that they are the absolute owners of the schedule properties and they are in exclusive and uninterrupted possession, they were not able to establish the same. Even in Exs.P.2, P.3 and P.18 produced by the plaintiffs, survey number has not been mentioned in the schedule. Therefore, it is difficult to accept the contention of the learned counsel for the appellants that they are the owners of Sy. Nos. 333/1 to 333/5, 334/1, 334/2, and 335 of Kempapura Agrahara. The learned counsel for the appellants mainly relied on the khatha in respect of the previous vendors namely Umapathi, S. Ramakrishna, S. Shakuntala, S. Lalithamma and S. Kantha and their earlier vendors namely Doddaiah and Akkappa. No doubt, these persons may have khatha in their name prior to acquisition. From the acquisition notification at Ex. D4, it is crystal clear that in respect of Sy. Nos. 333/1 to 333/5, 334/1, 334/2 and 335, compensation has been awarded way back in 1973-74. Therefore, when once acquisition notification has been issued, the title of the previous vendors will automatically wipe out. Therefore, they will not have any title over the schedule after the Government issued acquisition notification and took possession over the land in question. Therefore, the contention of the learned counsel for the appellants that his previous vendors had khatha in their name will not come to his aid.

It is also one of the contentions of the learned counsel for the appellants that Possession Certificate is issued to the defendants after the sale deed was executed and therefore, he contends that this document is a fabricated document. When once the sale deed is executed by the Association in favour of defendants 1 and 3, possession of the property in question would have been delivered to defendants 1 and 3 on that day itself. Normally, in the sale deed itself, it will be indicated that the possession of the property is delivered on the date of execution of the sale deed. Such being the case, even if the Possession Certificate is issued after the date of sale, it may not go to the root of the matter.

On the other hand, the defendants-respondents have produced Ex. D.4-notification for having acquired the land in question and also khatha Certificate issued by the BBMP and BDA and Ex. P.9- Layout Plan wherein Layout has been approved in Sy. Nos. 333/1 to 333/5, 334/1, 334/2, and 335 of Kempapura Agrahara in favour of the Association, wherein Site No. 212 to 222 have been formed and Site No. 215 is allotted in favour of defendant No. 1-Satish M. Bhonsle and Site No. 214 was allotted in favour of defendant No. 3-Ramakant Inamdar by the Association. These documents also corroborate with the khatha issued by the BBMP in their favour. The schedule to Ex. D.10-sale deed produced by defendant No. 1 which was executed by the Association indicates that site No. 215 is formed in Sy. Nos. 333/1 to 333/5, 334/1, 334/2, and part of Sy. No. 335 and New No. 36 comes under the jurisdiction of Sub-Registrar, Srirampuram, Bangalore - 21 and it is duly approved by the BDA vide No. 428/84-85 dated 23.7.1984. This clearly indicates that defendant No. 1 is in possession of the suit schedule property. The plaintiffs have failed to establish that they are in possession of the property in question.

The appellant has filed an application for amendment under Order VI Rule 17 of the Code of Civil Procedure. In support of this application, the power of attorney holder of the appellants has sworn to an affidavit stating that the plaintiffs are the absolute owners of the property described in plaint ''A'', ''B'' and ''C schedule properties purchased under the sale deeds dated 26.3.1992. They have paid the betterment charges, khatha is in the name of their vendors. They are paying assessment to the Corporation of Bangalore. They are in physical possession of the property. They have put-up compound around ''A'', ''B'' and ''C schedule properties. They are in exclusive possession of the property. The defendants are trying to interfere with their possession. The first defendant herein is claiming that he has purchased a site from 2nd defendant bearing No. 215, present No. 4, situated at 4th TT Cross Road, Chamarajpet Weavers Colony, Bangalore. But, the property purchased by the plaintiffs are situated at 1st Main Road, Attiguppe. All the documents pertaining to ''A'', ''B'' and ''C schedule properties clearly shows that the property is situated at I Main Road, Attiguppe. Hence, it cannot be said that they are one and the same. There is no site at all in question in 4th TT Block as claimed by defendant No. 1. Therefore, it is necessary to amend the plaint and add paragraph-11(a) after paragraph-11.

The proposed amendment sought is as under:

"11(a): The plaintiffs are full and absolute owners of A, B and C schedule properties mentioned in the schedule as stated earlier by acquiring the same under sale deed dated 26.3.1992. They have been in exclusive possession and enjoyment of the property by putting up compound wall around A, B & C schedule property as a single unit and erected shed therein. But, the defendants who have no right, title and interest over certain properties, on the strength of the fabricated documents, they are also claiming title to certain properties. In fact, the 1st defendant came with a theory that he purchased site from the 2nd defendant, No. 215, new No. 4, situated at 4th ''C Cross, Chamarajpet Weavers Society, Bangalore. Anyway, A, B & C schedule properties are situated at the I Main Road, Attiguppe. Hence, they cannot be one and the same property at all. Yet, they are claiming right over the property on the guise of those alleged sale deeds. Hence, it is apt and necessary that this Hon''ble Court may be pleased to declare that the plaintiffs are the full and absolute owners of A, B & C schedule mentioned herein, according to law.

Amendment of Prayer

Before prayer (a), the following prayer may be added as follows:

The plaintiffs pray that this Hon''ble Court may be pleased to declare that the plaintiffs are the absolute owners of plaint A, B, C schedule properties purchased under registered sale deed dated 26.3.1992."

It is stated that the amendment is necessary for adjudication of the matter in controversy.

By way of Counter Affidavit, defendant No. 1 has filed objections stating that the application filed by the appellants for amendment is not maintainable. Application has been filed after a lapse of 17 years from the date of suit. The same is liable to be dismissed as belated, that too when the present appeal has been substantially heard by this Court. No reasons has been stated in the application as to why the application is filed at a belated stage. The present amendment application is filed seeking to amend the plaint in a dismissed suit, that too seeking the relief of declaration. As held by this Court and the Apex Court, a suit for declaration has to be instituted within three years from the date of disputing the title by the other party. In the instant case, defendant No. 1 filed written statement in the suit on 4.4.2000, denying the title of the plaintiffs-appellants in respect of the property in question. The title of the appellants was denied by them even earlier thereto when they challenged the khatha before BBMP. The appellants were required to file a suit for declaration within three years, i.e. on or before 4.4.2003. The appellants did not file a suit for declaration nor even sought for amendment of pleadings in time. The above suit is pending for 15 years. The appellants did not make any attempt to file an application seeking declaration of their title, despite observations by this Court in writ petition and writ appeal and also by the Additional Commissioner of BBMP to the effect that the plaintiffs have to seek for declaration of their title to the suit schedule property from the competent Court.

Order VI Rule 17 of the Code of Civil Procedure deals with amendment. Generally, all amendments are permissible when they are necessary for determination of real controversy. Changing the subject matter of the controversy in a suit is not permissible. Entertainment of amendment of unsustained allegations and negation of admitted position of facts is not permissible. Amendment will not be allowed to cause injury to the other side. Amendment of a claim which is barred by limitation should not be allowed to defeat the legal right. On the basis of these principles, normally, the Court will examine whether the application has to be allowed or not? In the instant case, the suit instituted by the plaintiff is for bare injunction. Normally, in a suit for injunction, title of the property will not be determined, unless the plaintiff seeks for the relief of declaration. In this case, the further relief of declaration of title has not been sought by the plaintiffs. The real question in controversy between the parties is whether to grant injunction or not. As on the date of filing the suit, the plaintiffs should be in possession of the property to have the relief of temporary injunction. Later-on, after the trial is completed by way of a judgment, the Trial Court can declare that the plaintiff is entitled for permanent injunction. In the instant case, trial has been conducted. After completion of the trial, the Trial Court came to the conclusion that the plaintiffs are not entitled for perpetual injunction because the plaintiffs were not able to establish that they were in possession of the suit schedule properties. The evidence adduced and the pleadings pleaded by the parties pertains to grant of injunction. These questions have been considered by the Trial Court for appreciating the evidence and the contentions raised by both the parties and has come to the conclusion that the defendants are in possession of the property in question and dismissed the suit. The suit was instituted on 6.6.1997 and trial was concluded on 31.7.2012 and judgment was delivered on 31.7.2012. Though it was observed by three Forums that the plaintiffs have to seek for further relief of declaration of title of property in question, the plaintiffs slept over the matter for more than 17 years. No plausible explanation is forthcoming as to why the plaintiffs slept over the matter for such a long time. No doubt, now the appellants have preferred an application for amendment. But, it is not properly explained as to why the plaintiffs slept over the matter for more than 17 years. Suit for declaration has to be instituted within three years. In this case, it is not done so. It is well settled that the litigation should come to an end. It is also well settled law that an indolent litigant will not get the aid of the Court. Therefore, the application for amendment is liable to be dismissed on the ground of undue delay in preferring the same.

The contents of the additional documents, i.e. the letter secured from the BBMP cannot be looked into in view of Section 61 of the Evidence Act. The document is not admitted in evidence and there is no opportunity to the other side to cross-examine on this document. In that view of the matter, the document cannot be accepted, that too in a suit for bare injunction.

The Trial Court after carefully considering the rival contentions of both the parties and also relying on the acquisition notification and also the sale deeds executed by the Association in favour of defendant Nos. 1 and 3, Layout Plan, khatha issued by BBMP and BDA, Possession Certificate, has come to the conclusion that defendant No. 1 is in possession of the suit schedule property in respect of Site No. 215 and in the absence of seeking the further relief, that is declaration of title by the plaintiffs, the Trial Court has come to the conclusion that the plaintiffs are not entitled for perpetual injunction. The judgment and decree of the Trial Court is based on appreciation of evidence and it is sound and proper. I do not find any ground to interfere with the impugned judgment and decree.

In view of the above discussion, I pass the following:

ORDER

"i) This Regular First Appeal is dismissed.

ii) I.A. 1/2014 filed under Order VI Rule 17 of Code of Civil Procedure for amendment is hereby dismissed.

iii) I.A. 1/2013 filed for production of additional documents is also dismissed.

iv) The interim order of status-quo granted by this Court is hereby vacated.

v) The parties to bear their own costs."