Suresh Chandra Nanhoria vs Rajendra Prasad Rajak And Others

This miscellaneous appeal has been preferred by the appellant/defendant No.2 under Order 43 Rule 1(u) of CPC against the remand order dated 15.2.2010 passed by the 17th Additional Sessions Judge, Jabalpur in Civil Suit No.41-A/2008 wherein, in the regular civil appeal preferred by the plaintiff arising out of an order dated 26.11.2002 passed in Civil Suit No.99-A/2001 by the 15th Civil Judge Class-II, Jabalpur has been allowed. Vide the order dated 26.11.2002 the application filed by the appellant/defendant No.2 under Order 7 Rule 11 of CPC for rejection of suit has been allowed and the suit has been rejected.

In brief the facts of the case are that the appellant, an Army Officer is a resident of Jabalpur having served with the Border Security Force (BSF), purchased a plot No.25 in series 'A', Narmada Nagar, admeasuring 40 x 60 sq. ft. at Khasra No.24/1, 12 and 123 of Village Polipather within the Jabalpur Municipal Corporation limits through a registered sale deed dated 20/22.10.1971 from Narmada Nagar Colonizers, a registered partnership firm at Jabalpur, which comprised of five partners, viz., Rameshwar Prasad Dubey, Ranjeet Singh, Arun Kumar Paranjpe, Ashok Kumar Malhotra and Trilokinath Kakkar and he was also put into possession of the said plot.

The case of the appellant is that one of the partners of the said partnership firm viz. Rameshwar Prasad Dubey, without any right, title or interest, executed a registered sale deed dated 4.4.1986 in respect of the appellant's plot in favour of the respondent No.1 Rajendra Prasad Rajak. Thus, it is alleged that a fraud was played against the appellant by the said Rameshwar Prasad Dubey by executing the registered sale deed of the plot which belonged to the present appellant. It is further the case of the appellant that since he was serving in the Border Security Force, in the line of his duty, he was required to remain present on the border and also took part in Indo-Pak wars during the years 1965 and 1971, but, taking advantage of the appellant's absence, the plot in question was sold by said partner Rameshwar Prasad Dubey to the respondent No.1- Rajendra Prasad Rajak through the registered sale deed dated 4.4.1986, who took possession of the said plot and some construction was also carried out by him. In the year 1997, the appellant came to know about the execution of the aforesaid sale deed dated 4.4.1986 in favour of the respondent No.1. He also came to know that a brick room was constructed having electricity connection, hence he immediately submitted an application before the Collector, Jabalpur to get the plot vacated from the respondent No.1 and also applied for mutation of his name in the nazul record on the basis of registered sale deed dated 20/22.10.1971. Consequently, the plot was mutated in the appellant's name on 10.8.1999 and on the appellant's application to dispossess the respondent No.1 from the plot in question, the Collector also passed an order against the respondent No.1 directing him to vacate the premises within 15 days time. The Collector also directed that an FIR be registered against Rameshwar Prasad Dubey, who had played fraud against the appellant and in favour of the respondent No.1.

Being aggrieved of the aforesaid action, a civil suit was filed by the respondent No.1 in the Court of 15th Civil Judge Class-II, Jabalpur for grant of permanent injunction against the respondent No.2 restraining him from removing and demolishing any part of the property in question. After service of summon the appellant/ defendant No.2 filed written statement on 7.3.2002 along with an application under Order 7 Rule 11 of CPC for rejection of the suit on the ground that the remedy lies with the revenue authorities under Section 250 of the M.P. Land Revenue Code, 1959 (for short "Code, 1959").

The learned Judge of the trial Court vide its order dated 26.11.2002 allowed the application filed by the appellant under Order 7 Rule 11 of CPC and rejected the plaint. Against the aforesaid order dated 26.11.2002, a Civil Revision No.144/2003 was preferred by respondent No.1-Rajendra Prasad Rajak, which was allowed by this Court on 7.2.2003 without issuing any notice to the present appellant. Against the aforesaid order dated 07.02.2003, the appellant preferred an SLP before the Hon'ble Apex Court, which was registered as 4139/2006 and was finally allowed by the Hon'ble Apex Court on 4.9.2006 whereupon the order passed by this Court in Civil Revision No.144/2003 was set aside and the matter was remanded back to the High Court to decide the same afresh after giving opportunity of hearing to the appellant. When the matter again came back to this Court it was finally decided on 23.9.2008 whereby the revision was withdrawn by the respondent No.1 with liberty to prefer an appeal against the order passed on the application filed under Order 7 Rule 11 of CPC in accordance with law. Subsequently a Civil Appeal No.41- A/2008 was preferred in the Court of 17th Additional District Judge, Jabalpur assailing the order dated 26.11.2002 passed by the trial Court. In this appeal, an application under Order 6 Rule 17 of CPC was also filed for amendment in the plaint seeking declaration also on the ground that the cause of action for seeking declaration arose on 23.10.2008 i.e. the date when the written statement was filed by the present appellant.

A reply to the aforesaid application for amendment was also filed by the appellant that through the amendment, the nature of the suit is being totally changed by the respondent No.1 hence the same is liable to be dismissed. However, vide the impugned order dated 15.2.2010 the appeal preferred by the respondent No.1 as also the application filed therein under Order 6 Rule 17 of CPC were allowed setting aside the order passed by the trial Court on 26.11.2002 and thus remanding the matter back to the trial Court for its decision on merits.

The aforesaid order has been assailed before this Court and this Court vide order dated 1.8.2019 has admitted the present appeal on the following substantial questions of law:-

"(1) Whether the learned Judge of the lower appellate Court has rightly allowed the application filed by the respondent/plaintiff under Order 6 Rule 17 of CPC for amendment in the plaint and whether subsequent amendment changes the nature of the suit and the cause of action?

(2) Whether the amendment of the plaint seeking declaration on the ground of adverse possession could have been allowed?

(3) Whether the learned Judge of the lower appellate Court has rightly held that the suit was not barred under Section 257(x) of the MP Revenue Code, 1959?"

Shri S.P.Sharma, learned counsel for the appellant, addressing this Court for the substantial question of law No.3 i.e. 'whether the learned Judge of the lower appellate Court has rightly held that the suit was not barred under Section 257(x) of the MP Revenue Code, 1959', has submitted that the learned Judge of the lower appellate Court has erred in holding that Section 250 of the Code, 1959 apply only to Bhumiswami which includes occupancy tenants and Government lessee, but does not apply to the plot in the suit, as it is not the agricultural land. It is submitted that the aforesaid conclusion is incorrect and is liable to be set aside. Learned counsel for the appellant has further submitted that the appellant's name has already been recorded as Bhumiswami in the revenue record and apart from that, Section 59(b) of the Code, 1959 also provides that it includes sites for dwelling houses. Thus it is submitted that the aforesaid finding that the land is not an agricultural land does not hold water.

Shri Sharma has further submitted that once the sale deed was executed in favour of the appellant on 20/22.10.1971 that would be the notice to the whole word and the respondent No.1 could not have been driven his title by virtue of subsequent sale deed of the same plot, which was executed on 4.4.1986. In support of his contention learned counsel for the appellant has relied upon judgments of the Hon'ble Apex Court in the case of SM Karim Vs. Mst. Bibi Sakina, AIR 1964, SC 1254, Md.Mohammad Ali Vs. Jagadish Kalita and others, (2004) 1 SCC 271, Vasantiben Prahladji Nayak and others Vs. Somnath Muljibhai Nayak and others, (2004) 3 SCC 376 and in the case of T. Anjanappa and others Vs. Somalingappa and another, (2006) 7 SCC 570.

Regarding the amendment of the plaint by the learned lower appellate Court the counsel has vehemently argued that the aforesaid amendment is an afterthought and could not have been allowed, as admittedly the appeal was filed by the respondent No.1 on 13.10.2008, whereas the application for amendment was filed after undue delay on 13.7.2009. It is further submitted that the aforesaid amendment application was filed only to fill up the lacuna taking clue from the order passed by the learned Judge of the trial Court while allowing the application under Order 7 Rule 11 of CPC. It is submitted that by way of amendment, the nature of the suit has been completely changed by the respondent No.1 from a suit which was filed for injunction only to the suit for declaration on the basis of adverse possession. It is further submitted that the respondent No.1 was well aware of the facts and circumstances of the case right from the beginning when he first filed the suit of injunction against the appellant, thus, the cause of action to file the application for amendment cannot be said to have arisen after filing of the written statement. Thus it is submitted that the application filed under Order 6 Rule 17 of CPC has wrongly been allowed by the learned Judge of the lower appellate Court, hence the same is liable to be dismissed. In support of his contention, learned counsel has relied upon the judgments of the Hon'ble Apex Court in the case of Vidya Bai & others Vs. Padmalatha & another, 2009(3) MPLJ 122, A.K.Gupta & others Vs. Damodar Valley Corporation, AIR 1967 SC 96. He has also relied upon the judgments of this Court in the case of Krishnarao Kavdikar (dead) Vs. Sadhna Khanvalkar & another, ILR [2008] MP 1207 and in the case of Sushil Kumar Kanungo & others Vs. MP Rajya Sahkari Bank Maryadit & others, ILR [2008] MP 2238.

On the other hand, Shri R.K.Sanghi, learned counsel for the respondents has supported the impugned order and has submitted that the learned judge of the lower appellate Court has rightly held that when two registered sale deeds are on record, it would be a suit regarding the title of one of the property and as such bar under Section 257 of the Code, 1959 is not applicable in the present case and as such the learned Judge of the lower appellate Court has rightly set aside the order passed under Order 7 Rule 11 of CPC.

So far as the amendment application is concerned, Shri Sanghi has submitted that no case for interference is made out, as the application filed by the respondent/plaintiff under Order 6 Rule 17 of CPC for amendment of the plaint has been rightly allowed holding that the same would only facilitate the proper disposal of the suit. Learned counsel has further submitted that on perusal of the application filed under Order 6 Rule 17 of CPC, it clearly reveals that the cause of action to amend the plaint arose only after written statement was filed. Counsel has further submitted that even the issues have not been yet framed in the case and the evidence is yet to be led by the parties. Thus it is submitted the appeal be dismissed. In support of his contention learned counsel for the respondent has relied upon the judgments of the Hon'ble Apex Court in the case of Pawan Kumar Vs. Babulal, (2019) 4 SCC 367, MC Agrawal HUF Vs. M/s Sahara India & others, AIR 2008 SC 2887, Anant Shankar Bhave Vs. Kalyan Dombivali Municipal Corporation, (2019) 4 SCC 348. Learned counsel for the respondent has also relied upon the various orders of the Coordinate Bench of this Court in the case of Arunashu and others Vs. Rajesh and others, 2018(2) MPLJ 470, Smt. Amna Begum Vs. Smt. Sushila Bai, AIR 2011 MP 141, State of MP Vs. Uttam Chand and others, 2000(2) JLJ 143, Rajabhaiya Gupta Vs. Kamlabai & others, ILR [2012] mp 1656, Sakenabai Vs. State of MP 1988 RN 341, Smt. Bisarti Bai and others Vs. Smt. Ratnawali and others, (2006) AIR (MP) 95.

Heard the learned counsel for the parties and perused the record.

For the sake of convenience the substantial question of law No.3, i.e."whether the learned Judge of the lower appellate Court has rightly held that the suit was not barred under Section 257(x) of the MP Revenue Code, 1959?" is being taken first for consideration. So far as Section 257(x) of the Code, 1959 is concerned, the same reads as under:-

"257. Exclusive jurisdiction of revenue authorities.-Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters:-

[(a) ........................................................

(x) any decision regarding reinstatement of a Bhumiswami improperly dispossessed and confinement in civil prison under Section 250;]

(x-i).....

(x-ii) any decision regarding delivery of actual possession of land to the Bhumiswami or the Government Lessee under Section 250-B.]"

In the considered opinion of this Court since the suit was filed by the respondent No.1 on the basis of title, the question regarding the appellant's sale deed can only be decided after the evidence is led by the parties in this behalf. In view of the same this Court does not find any error if the learned Judge of the trial Court has held that the suit was not barred under Section 257(x) of the Code, 1959 and thus the judgments cited by the learned counsel for the appellant are not applicable in the facts and circumstances of the case.

So far as the application filed under Order 6 Rule 17 of CPC is concerned, this Court has framed two following substantial questions of law:-

"(1) Whether the learned Judge of the lower appellate Court has rightly allowed the application filed by the respondent/plaintiff under Order 6 Rule 17 of CPC for amendment in the plaint and whether subsequent amendment changes the nature of the suit and the cause of action?

(2) Whether the amendment of the plaint seeking declaration on the ground of adverse possession could have been allowed?"

To decide these issues, it would be necessary to first see the nature of the relief prayed for by the respondent No.1 in his plaint, the same reads as under:-

"PRAYER

It it, therefore, craciosly and humbly prayed that that Judgment and Decree for the following relief may kindly be passed:

i) That, the judgment and Decree for permanent injunction be passed restraining the defendant-1, from removing and demolishing any part of the house in suit as shown by red colour marked by letters A, B, C, D in the Plaint, Map and also by any of the defendants in any manner or by any way i.e. himself, their agents, servants or employee etc., by force or by any illegal means.

ii) Any other relief which this Court demed fit and proper under the facts and circumstances of this case also be granted.

iii) Cost of the suit in full."

So far as the application filed under Order 6 Rule 17 of CPC is concerned, the same reads as under:-

"1. That, the appellant plaintiff had filed a Civil Suit No.99-AA/2001 before the XVth Civil Judge, Class-II, Jabalpur.

That, the appellant/plaintiff had pleaded that he had purchased the suit land on 4-4- 1986 and took possession and since then is in peaceful possession of the same and has constructed a house thereon and without, interruption is enjoying the suit property as owner thereof.

That, the Learned Lower Court was pleased to reject the appellant/plaintiffs suit and the appellant/plaintiff has preferred this appeal.

That, the respondent/defendant no.2 has filed a written reply in this appeal and has alleged that the plaintiff/appellant has no right title over the suit property. The respondent/defendant no.2 has also alleged that the title of the appellant/plaintiffs is based on fraud.

That, these allegations have raised doubts over the title of the appellant/plaintiff and therefore, it has become necessary to explain and amend the suit so that the real controversy between the parties is set to rest.

That, in the above circumstances the appellant/plaintiff proposes to amend the plaint.

That, after para 3 of the plaint, para 3 (a) and (b) as follows be allowed to be added:-

"3(a) That, the plaintiff has been in possession of the suit property since 4-4- 1986 i.e. the date of sale deed in favour of plaintiff asserting his own title and denying the title of any other person openly, peacefully and without any objection from the defendant no.2 or anybody."

"3(b) That, if there had been any right title over the suit property of any other person that has been extinguished and the plaintiff has perfected his title by adverse possession too."

That, after para 5 of the plaint, para 5(a) as follows be allowed to be added:-

"5(a) That, the cause of action for declaration of title arose on 23-10-08 i.e. the date of filing of written reply in appeal by the defendant no.2, when the defendant no.2 has deemed the title of the plaintiff."

That, after para 6 of the plaint para 6(a) be allowed to be added:-

"(a) The plaintiff values his claim of declaration at 500/- five hundred Rs. and the fixed court fees is hereby paid."

That, after the words "............ may kindly be passed ........... and before the sub para I) "a para "a" be allowed to be added.

(a) That, the plaintiff is the owner and in possession of the suit property as mentioned in the following sub para i)"

That, the plaintiff may kindly permitted to amend the plaint accordingly."

In the considered opinion of this Court, the scope of an appeal arising out of an order passed on an application under order 7 rule 11 of CPC is confined to and is dependent only on the grounds raised in the said application and the averments made in the plaint, as the legality of the order passed by the trial Court has to be tested within the ambit of Order 7 Rule 11 of CPC only. It is true that an application for amendment can certainly be filed at the appellate stage also but this power can only be exercised when filing of such application is justified by the party seeking the amendments. This Court is also of the opinion that when the matter was already remanded by the lower appellate Court to the trial Court, the application for amendment also ought to have been left to be decided by the trial court only as there were no such compelling circumstances present to decide the application for amendment at the appellate stage only by ignoring the delay in filing the said application. In view of the same, this Court has no hesitation to hold that the learned Judge of the lower appellate Court has erred in law in allowing the application filed under Order 6 Rule 17 of the CPC and thus, the order is liable to be set aside. Since this Court is of the opinion that under the facts and circumstances of the case, the application for amendment ought to have been decided by the trial Court, it would be expedient to remand the aforesaid amendment application filed under Order 6 Rule 17 of CPC also for the consideration of the trial Court and direct the trial Court to decide the same on its own merits, in accordance with law and needless to say, without being influenced by the order passed by the lower appellate Court or this court. So far as judgments/orders cited by the learned counsel is also distinguishable in the facts and circumstances of the case.

Looking to the fact that the suit is pending since last more than 19 years, the learned Judge of the trial Court is directed to expedite the matter and decide the suit expeditiously preferably within a period of one year from the date of receipt of certified copy of this order.

The appeal stands partly allowed in the above terms. No cost.