Ramesh Naru and ors. vs Gulshan Rai Malik and ors.

Ujagar Singh, J.

The plaintiffappellants filed this suit against defendantrespondents for mandatory injunction on the ground that the house in dispute was owned by defendantrespondent Nos. 7 to 12 who sold the same to the plaintiffappellants for a consideration of Rs. 30,000/ vide registered sale deed dated 9th February, 1983. It is further stated in the plaint that Hans Raj father of defendantrespondents Nos. 1 to 6 was Munim of defendantrespondents Nos. 7 to 12 and used to maintain their property and in lieu thereof the house in dispute was given to Hans Raj as a licensee for his residence. Defendantrespondents Nos. 1 to 6 are therefore, in possession as licensee after the death of Hans Raj as ''they were'' allowed to retain possession as such on transfer of the house to the plaintiffappellants, the licence was terminated and, therefore, this suit for mandatory injunction for vacating the house.

The defendantrespondents Nos. 1 to 6 contested the suit and pleaded that Hans Raj, their father, was the owner and they are in possession as his successors. Sale deed, if any, was said to be a fictitious document, the same being without consideration and any authority. They also denied their knowledge of their father being a Munin of defendantrespondent Nos. 7 to 12 there were eight issues and issue No. 2 was as to whether defendantrespondents Nos. 1 to 6 were in possession as licensees. The trial Court held the plaintiffappellants to be the owners and defendantrespondents Nos. 1 to 6 to be the licensees and on these findings the suit was decreed. The defendantrespondents Nos. 1 to 6 filed an appeal before the first appellate Court and vide judgment and decree of the first appellate Court the finding of defendantrespondents Nos. 1 to 6 being licensees were reversed. On that finding the first appellate Court held that the suit for mandatory injunction was not maintainable.

Learned counsel for the appellants has not been able to point out any infirmity in the finding given by the first appellate Court. The first appellate Court also reversed the finding given on issue No. 1 and held that plaintiffappellants were not proved to be owners of the house in dispute in as much as the evidence adduced on record could not link the house in dispute with the property unit, mention of which was made in documents Exhibit P.A. to P. C. and the oral evidence of the parties on record was evenly set up on the question of title of ownership of the suit house. The lower appellate Court also held that in order to succeed in the suit claim, it was imperative for the plaintiffappellants to establish the ownership of the defendantrespondents Nos. 7 to 12 in respect of the house in dispute. I have gone through the record and the judgment of the first appellate Court. The reasoning given by the first appellate Court is that one of the vendors, namely, Kewal Krishan D.W.1. admitted that Hans Raj had died about 16 years ago and evidently by virtue of Section 62(f) and (g) Indian Easement Act, 1882 licence qua the suit house in favour of licensee Hans Raj must be deemed to stand revoked on his death. The evidence of the contesting defendant respondent Nos. 1 to 6 was that they had always held out themselves to be owners of the suit house and that the inhabitants of the village too had treated them as such. The 1st Appellate Court further held that to this end there was preponderance of evidence brought on record and that notice worthy point was that there was no probable evidence to prove that after the death of Hans Raj defendantrespondents Nos. 7 to 12 allowed the successorsininterest of Hans Raj for some consideration as licensees to continue in occupation of the suit house. As such, the first appellate Court ultimately found that the defendantrespondents Nos. 1 to 6 were in possession in their own right, since nothing to the contrary was established from the evidence adduced and in such a situation suit for mandatory injunction was not maintainable.

Confronted with this situation, an application has been filed by the plaintiffappellants for amending their plaint under Order 6 rule 17 read with Section 151 of the Code of Civil Procedure, notice of which was given to the counsel for the respondents Nos. I to 6 and counsel for the parties were heard.

The only ground given for amending the plaint is that during arguments of this appeal it was pointed out that a suit for mandatory injunction was not maintainable and that the proper claim of the suit could be a suit for possession. Therefore in order to eliminate any objection, it was necessary that the plaintiffappellants be permitted to amend the plaint. The amendment sought is that the plaintiffappellants claimed possession in the alternative on the basis of ownership against the defendantrespondents Nos. 1 to 6.

Learned counsel for the appellants has relied upon the decision in Smt. Batni and other v. Shri Tej Singh, A.I.R. 1966 H.P. I wherein it has been held that on the objection by the defendant as the maintainability of the suit as framed, the plaintiff sought to amend his plaint by adding an alternative prayer that even if the defendant be held to be not a licensee, he was a trespasser and he should be granted a decree for possession. In that case suit for mandatory injunction was allowed to be amended as a suit for possession on the basis of ownership. It was also held that since the application was made at the earliest and was allowed on payment of costs, it could not be said to have worked injustice to the defendant.

In my view this authority does not help the appellants. Therein the written statement was filed on 13th of July, 1964 and on 1st of August, 1964 a similar application as in this case for amending the plaint was put in on behalf of the plaintiff. The application was allowed by the trial Court and the defendants in that case filed a revision against the order allowing the amendment. In the present case the plaintiffappellants did not file any such application during pendency of the suit or first appeal. Here also this application has been made when objection was raised that the suit for mandatory injunction was not maintainable. Right from the written statement till now the defence of the defendant respondents Nos. 1 to 6 has been that they are in possession in their own right and there was no question of their being licensees of the property and a specific ground No. 16 in the grounds of appeal was taken and the same reads as :

"That the lower court has wrongly said that arguments were not advanced on the issue No. 6. It has been clearly argued that the appellants being present not the licensees, therefore the suit in the present form is not maintainable."

The learned counsel for the respondents has relied upon Zile Singh and another v. Smt. Durkan, 1984 Revenue Law Reporter 367 wherein it has been held that when there is absolutely no explanation in the application made under Order 6 rule 17, Cr. P. C. as to why the proposed amendment could not be sought in the trial Court, the amendment could not be allowed as a matter of course. It was further held that a very strong case is required to be made out by the parties seeking amendment of the pleadings at the appellate stage because there is already a decree in favour of one of the parties and that decree could not be interfered with lightly unless very cogent reasons are given in the application seeking amendment for not making an application in the trial Court. It is further held therein that it is all the more so, when the whole matter reopens if the amendment sought for is allowed. The order of the appellate Court allowing amendment in that case was set aside.

In the present case the circumstances are exactly similar as in Zile Singh''s case (supra), in view of the above, this application for amendment is dismissed. This Regular Second Appeal, therefore, stands dismissed in limine

Appeal dismissed in limine.