Subhash Chander Bhatnagar vs Rajesh Kumar Bhatnagar and Another

V.K. Bali, J.—It is defendants'' appeal against the remand order passed by the learned Addl. District Judge, on August 13, 1996.

Brief facts of the case reveal that plaintiff filed a suit for permanent injunction pleading therein that his father Shri Jai Kishan Bhatnagar had a residential house situated in Dehry Mohalla, Rohtak. Jai Kishan Dass died leaving behind the plaintiff and his mother Smt. Tara Wati. Smt. Tara Wati was suffering from cancer and when she could not be treated properly at Rohtak, she along with plaintiff shifted to Delhi to reside with her bother for her treatment, after locking the house in dispute. She could not survive and after her death, plaintiff came to Rohtak some 3-4 months prior to filing of the suit and came to know that defendants had unauthorisedly occupied the house in dispute after breaking open the lock and on interrogation they disclosed that they had purchased the house from Smt. Maharani widow of Makhan Lal, the aunt (Bua) i.e. sister of late Jai Kishan Dass, for consideration of Rs. 5000/ vide registered sale deed dated December 31, 1982. When the defendants declined to hand-over possession of the house to the plaintiff, he filed the present suit. It is well made out from the pleadings of the parties that even though it was admitted that defendants were in possession, a suit for permanent injunction was filed. However, the defendants contested the cause of the plaintiff and basically pleaded that Maharani wife of Makhan Lal was the sole owner of the property in dispute and she sold the same to them vide sale deed dated December 31, 1982 for Rs. 5000/-.

On the pleadings of the parties, following issues were framed: -

"1. Whether the plaintiff has any right, title or interest in the house in dispute? OPP.

Whether the defendants are bona ride purchaser of the house in dispute? OPD.

Relief."

After resultant trial, findings on Issues 1 and 2 were returned against the plaintiffs. Operative part of the judgment of the learned trial Court reads thus :-

''Thus in view of the aforesaid discussion, I have come to the conclusion that defendants, who are in possession of the house in dispute are the owners of the same on the basis of title deed, Ex. Dl and prior to them Smt. Maharani was owner in possession of the house in dispute. Therefore, in these circumstances it was the bound down duty of the plaintiff to prove that defendants and prior to them Maharani was not the owner of the house in dispute and if any law on this point is required then reference may be made to Amrit Lal v. Phul Chand 1976 PLJ 224. In the same way in view of the lawlaid down in Tirlok Chand v. Ram Kishan Dass 1963 PLR 1019, it can be said that non production of the title deed by the plaintiff to support his claim over the house in dispute is fatal to him and is sufficient to presume that he is not owner in possession of the house in dispute."

An appeal was carried against the judgment and decree passed by the learned trial Court in which the plaintiff applied for amendment of the plaint. The prayer was made to amend the plaint so as to incorporate the relief of possession. The learned Appellate Court permitted the plaintiff to amend the plaint on payment of Rs. 500/- as costs. With a view to incorporate the relief of possession, the appellate Court set aside the judgment of the trial Court and remanded the case to the trial Court. It is this order dated August 13, 1996 which has been impugned in the present appeal.

I have heard learned counsel for the parties and am of the view that the order passed by the learned Addl. District Judge is incorrect and, therefore, cannot sustain. It may be true that there was necessity to amend the plaint and it may also be true that in such circumstances the plaintiff should have been allowed to amend the paint. However, the question is as to whether by simply permitting the plaintiff to amend the plaint only with a view to incorporate the relief of possession, could the judgment and decree of the trial Court be set aside. In view of this Court, the answer to this question is in negative. In a situation, as was available before the learned Addl. District Judge, at the most a report could be obtained from the trial Court on an issue which ought to have arisen on account of permission granted to the plaintiff to amend the plaint. Till such time the findings on issues 1 and 2 were adversely commented upon by the first Appellate Court, the judgment and decree passed by the trial Court could not be set aside and the case could not be remanded simply by permitting the plaintiff to incorporate the relief of possession in the plaint. The impugned order is, thus, set aside and the case is remitted to the learned Addl. District Judge, who would deal with this matter afresh and if by virtue of amendment allowed to be carried in the plaint, it becomes necessary to remand the case, then the learned Addl. District Judge would adopt the procedure as envisaged under the provisions of Order XLI Rules 23 to 26-A of the Code of Civil Procedure. If, however, by taking written statement of the defendents, an additional issue is required to be framed, then also the Appellate Court would deal with the matter under the provisions of remand, referred to above. If evidence of the parties be complete, then it would be open to the learned Addl. District Judge to determine the appeal on merits.

The appeal is allowed in the manner indicated above. Parties through their counsel are directed to appear before the Appellate Court on July 18, 1997.