Ram Manohar Vs Mahesh Kumar (Died)

1.1 - (A) Anand Kumar Soni S/o Mahesh Kumar Soni Aged About 40 Years R/o Anand Jewelers, Ward No. - 17, Infront Of Bhandari Chal, Dongargarh, District - Rajnandgaon (C.G.)

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1.2 - (B) Anil Kumar Soni S/o Mahesh Kumar Soni Aged About 36 Years R/o Anand Jewelers, Ward No. - 17, Infront Of Bhandari Chal, Dongargarh, District - Rajnandgaon (C.G.)

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1.3 - (C) Adarsh Kumar Soni S/o Mahesh Kumar Soni Aged About 31 Years R/o Anand Jewelers, Ward No. - 17, Infront Of Bhandari Chal, Dongargarh, District - Rajnandgaon (C.G.)

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2 - Suresh Kumar S/o Gangaprasad Soni Aged About 30 Years Resident Of Patel Ward, Dongargarh, Tahsil Dongargarh, District Rajnandgaon. 3 - Bainlal S/o Gangaprasad Soni Aged About 21 Years Resident Of Patel Ward, Dongargarh, Tahsil Dongargarh, Distt. Rajnandgaon. 4 - Krishna Kumar S/o Ganga Prasad Soni Aged About 19 Years Resident Of Patel Ward, Dongargarh, District Rajnandgaon (M.P.). 5 - Smt. Manorama D/o Gangaprasad Soni Aged About 27 Years R/o Patel Ward, Dongargarh, Tah. Dongargarh, Distt. Rajnandgaon.

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6 - Smt. Vinita D/o Gangaprasad Soni Aged About 26 Years Resident Of Patel Ward, Dongargarh, Distt. Rajnandgaon.

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7 - Ku. Chandrakanta D/o Gangaprasad Soni Aged About 18 Years R/o Patel Ward Dongargarh Tahsil Dongargarh District Rajnandgaon (M.P.). 8 - (Deleted) Smt. Harbati (Died) As Per Hon'ble Court Order Dated 27-012025.

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9 - The State Of M.P. Through The Collector, Rajnandgaon (M.P.)(Now CG).

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... Respondent(s)

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For appellant.	: Mr. K.A. Ansari, Sr. Advocate with Mr. Owaish Akhtar, Advocate.
For respondents No. 2, 4 to 7	: Mr. Anurag Verma, Advocate.
For State.	: Mr. Ajay Kumrani, Panel Lawyer

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(Hon’ble Mr. Justice Narendra Kumar Vyas)

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C A V Judgment

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1.This is defendant's Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 5-5-1994 passed by the learned District Judge, Rajnandgaon in Civil Appeal No. 6-A of 1990 whereby learned District Judge Rajnandgaon has dismissed the appeal against the judgment and decree dated 8-3-1990 passed by the learned Civil Judge, Class II, Dongargarh by which suit has been decreed.

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2.This appeal was admitted by this Court on 24-6-2011 on the following substantial question of law:-

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“Whether in the facts and circumstances of the case the First Appellate Court was justified in rejecting appellant's application under Order 41 Rule 27 and under Order 6 Rule 17 of CPC?”

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3.For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Suit No. 36-A/2008 before the trial Court.

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4.Brief facts reflected from the plaint averments are that:

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A) The plaintiffs filed a civil suit for possession and damages on 24.02.1984 mainly contended that the plaintiffs are legal heirs of late Ganga Prasad. The defendant Ram Manohar has shown his interest to sell the suit property situated at Dongargarh city bearing Khasra No. 482/3 area 14 x 30 total 1200 sq.ft., for sale consideration of Rs.1500/-. Accordingly, the defendant has sold the suit property through registered sale deed dated 27-6-1973 and possession has also been granted to the plaintiff. It is also case of the plaintiffs that the plaintiff's parents remained in possession of the suit property till 1975 and the names of the plaintiffs have also been mutated in the revenue records.

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(B) It is also case of the plaintiffs that when the plaintiffs intended to construct the house in the suit property then the defendant raised an objection contending that the defendant has mortgaged the suit property, therefore, the plaintiff cannot construct the house on the suit property which has necessitated the plaintiffs to file a civil suit for possession and damages. During pendency of the suit the plaintiff's father died, therefore, they amended pleadings and contended that being legal heirs of late Ganga Prasad, they are also entitled to inherit the suit property and also amended that the suit property is now not agriculture land as it has been diverted land.

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(C) The defendant has filed written statement denying the allegations made in the plaint mainly contending that it is emphatically denied that the defendant had proposed for selling of the property, in fact it is a

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mortgage deed and it is mortgaged as security of loan taken by him. It was also contended that orally it was agreed that false sale deed will be executed and no possession will be given on the suit property and after payment of loan along with interest, the plaintiff will return the sale deed. It has also been contended that the defendant is in possession of the suit property with the knowledge of the plaintiff, therefore, in view of principle of adverse possession, he acquired the title over the suit property. It has also been contended that the suit should have been filed within six months from 15-1-1983, as per provisions of the Specific Relief Act, 1963 but it has been filed after lapse of two years, as such the suit is not maintainable as barred by limitation. It has also been contended that the suit is not maintainable in view of Section 257 of the Land Revenue Code and has prayed for dismissal of the suit.

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Learned trial Court on the pleadings of the parties framed as many as eight issues and issue Nos. 1 to 3 are relevant, therefore, they are extracted as below.

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The plaintiff to substantiate his pleadings has exhibited documents, Sale deed dated 27-6-1973 (Ex.P/1) ,photocopy of receipt (Ex.P/2-a), receipt of diverted land (Ex.P/3), Adhikar Abhilekan (Ex.P/4) and examined Suraj Kumar (PW/.1) , Ram Kumar Sharma (Ex.P/2). The defendant has not exhibited any document, but examined himself as DW/1.

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PW/1 Suraj Kumar has categorically stated in examination-in-chief that his father has purchased the suit property from defendant Ram Manohar whose land bearing Khasra No. 482/3 area 1200 sq.ft through registered sale deed on 27-6-1973 (Ex.P/1). The said witness in his cross-examination has denied that the defendant has taken any loan from the plaintiff and a forged sale deed for Rs. 1500/- was executed but he has admitted that his father used to do the work of pledge and mortgage of immovable properties and also denied that after sale deed, the defendant has not given the possession of the suit property. The other witnesses have also supported the case of the plaintiff.

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The defendant in his examination-in-chief has reiterated the stand taken by him in the written statement and also admitted that the plaintiff has filed suit for recovery of Rs.1500/- and a decree of Rs. 1559/- was passed against him. He has also stated that he has passed 10th class examination and he is working as security guard. He has also stated that in Ex.P/1 he has put his signature which is a sale deed. He has also admitted that in the year 1973-75 he has paid interest @ Rs.1500/- but no evidence of payment of interest was produced before the trial Court and he has also stated that he is not

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aware on which date he has paid the amount. He has also admitted that

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in the year 1975 he has not paid any amount.

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Learned trial Court on the basis of appreciation of evidence and material on record, vide order dated 8-3-1990 has decreed the suit and has recorded its finding that the registered sale deed dated 27-6-1973 is not a mortgaged deed and the plaintiff is in possession of the suit property and also answered issue No.3 against the defendant that he has forcefully taken possession of the suit property in the year 1983 and decided the issue Nos. 4, 5 and 6 in negative against the defendant . Learned trial Court has also recorded its finding that the plaintiff is in possession of suit property from 1973 to 1983 as the plaintiff's witnesses have categorically stated that he used to keep the wood, motor and wastage and he is using the property and their names have also been mutated. Learned trial Court while deciding issue No.5 with respect to limitation, has recorded its finding that as per Article 64 of the Limitation, the date of dispossession should be considered and not from the title and the suit can be filed within the limitation of 12 years when the defendant has dispossessed the plaintiff from suit property. The trial Court has also recorded its finding that the plaintiff has categorically established that on 15-1-1983 he was dispossessed from suit property and suit was filed on 27-6-1984, therefore, suit is within the limitation and accordingly it has decreed the suit directing the defendant to vacate the suit within a period of two months, failing which damages of Rs.1500/- is also payable to him.

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Being aggrieved with the judgment and decree, the defendant had filed an appeal before the First Appellate Court and also filed an application for amendment under Order 6, Rule 17 read with Section 151 of the

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CPC to amend the written statement for incorporating certain new pleadings after para 2 of the written statement contending that “after death of the plaintiff's father Ganga Prasad, plaintiff has created pressure over the defendant for repayment of the loan amount of Rs. 1500/-, therefore, on 17.02.1978, the defendant has executed one new loan receipt without receipt of payment and put his signature. Thereafter, the plaintiff has filed suit for recovery of same bearing civil suit No. 53-B of 1978 which has been decided on 26-7-1983 and decree has been passed on Rs.1559/-. As such, plaintiff has already granted relief of recovery of mortgage money. In para 2-C, it has been proposed to amend that “the stand taken by the plaintiff that they are in possession of the suit is incorrect submission of the fact as in the Civil Suit No. 53-B of 1978 as the plaintiff No. 2 has been cross-examined by the defendants wherein he has admitted that whether the plaintiff’s father in his lifetime has taken the possession of the property, is not known to him. He has also denied that after 1978, he has gone to take possession and he has no possession. Therefore, the suit is barred by principle of estoppal and after paragraph 9, he has proposed to amend that the suit property “is not the property of the defendant as the suit property was given on lease to the defendant by Mahant of Shri Hanuman Mandir, Dongargarh for Rs.6 only as rent for construction of the house and the defendant has no right to alienate or to mortgage the suit property as he is not absolute owner of the suit property, Therefore, the sale deed dated 27-6-1973, is null and void.

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11.The plaintiff has filed reply to the application contending that by the said proposed amendment nature of suit is changed, therefore, the amendment application is liable to be rejected. The defendant has also

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filed an application under Order 41 Rule 27 of CPC to place on record the additional documents. Learned First Appellate Court has not only dismissed the appeal but also rejected the application for amendment filed by the plaintiff by recording its finding in paragraph 18 & 19 that no such defence has been taken by the defendant that the sale deed of the suit property is fabricated document and for the purpose of security of the loan, the same has been executed. It has also recorded its finding that no such contentions were raised before the trial Court in the suit that in pursuance of the decree passed in Civil Suit No. 53-B of 1978, the amount has already been paid. Therefore, the amendment is not necessary for deciding the appeal. Accordingly, it has rejected the same.

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Learned trial Court has also rejected the amendment with regard to proposed pleadings that the suit property belongs to Mahant of Hanuman Mandir Trust by recording its finding that the defendant is well aware of the facts of the case from very beginning but he has not produced the same without any rhym and reason and has also taken into consideration the fact that since the proposed application has been rejected by the First Appellate Court, therefore, it has lost its significance accordingly, it has rejected the application under Order 41 Rule 27 of the CPC. The First Appellate Court has also recorded its finding that the application for taking additional documents on record is not necessary and relevant for adjudication of the suit, accordingly, it has rejected both the applications. Being aggrieved with the dismissal of the appeal, the defendant has preferred this second appeal before this court. This second appeal was admitted by this Court on 24-6 -2011 by afore stated substantial question of law.

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Learned Sr. Advocate appearing for the appellant would submit that the First Appellate Court has committed illegality in rejecting the application for amendment as well as the application filed under Order 41 Rule 27 by the defendant for taking additional evidence on record which has caused prejudice to the appellant as both documents and pleadings which the defendant intends to bring on record is necessary for just and proper adjudication of the case. He would submit that no proper opportunity of hearing to defend his case has been given, as such the judgment and decree passed by the First Appellate Court deserves to be set aside and the substantial question of law be answered in favour of the plaintiff and the matter may be remitted back to the trial Court for deciding the suit afresh considering the consequence of the amended pleading and additional evidence on record.

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He would further submit that the suit property belongs to Hanuman Mandir Trust and in view of the provisions contained in Section 26 of the Public Trust Act the suit was not maintainable before the learned trial Court, as such he would submit that though no such plea has been taken, but since it is a purely legal issue, therefore, at this stage of second appeal also, this issue can be agitated and would pray for allowing the appeal. To substantiate his submissions, he has referred to the judgment of Hon'ble Supreme Court in the case of Shyam Gopal Bindal & others vs. Land Acquisition Officer & others, reported in 2010 (2) SCC 316.

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15.On the other hand, learned counsel for the respondent would submit that the learned trial Court has passed the judgment and decree after appreciating the evidence and material on record and against that the defendant has preferred an appeal before the First Appellate Court

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which has also been dismissed by well reasoned order. He would further submit that while dismissing the appeal the First Appellate Court has also taken into consideration the fact that the proposed amendment will change the nature of the case and entirely new case is projected by the said proposed amendment which is not the object of law of amendment in the pleadings. He would further submit that the First Appellate Court has also not committed any illegality in dismissing the application filed under Order 41 Rule 27 of the CPC and the additional evidence by the documents which defendant intends to bring on record by the appellant is not at all relevant for deciding the controversy between the parties. He would further submit that according to Section 43 of the Transfer of Property Act, the defendant is estopped from taking the plea as the land was transferred through sale deed, therefore, the defendant is estopped from raising plea that transfer is not binding upon him. Thus, he would pray for dismissal of the appeal. To substantiate his submission, he has referred to the judgment of Hon'ble Supreme Court in the case of Tanu Ram Boara vs. Promod Ch.Das (dead) through Legal representatives and others, reported in (2019) 4 SCC 173.

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I have heard learned counsel for the parties, considered the rival submissions made herein-above and also gone through the records of both the courts below with utmost circumspection.

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Discussion and finding on substantial question of Law.

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The appellant has also filed an application for amendment in pleadings made in written statement which has been already extensively referred

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by this Court in foregoing paragraph, therefore, to avoid repletion, this Court does not feel proper to reproduce again.

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From perusal of the amendment application, it is quite vivid that the appellant intends to create new case by questioning the executed sale deed which has been executed in the year 1973 after lapse of about 17 years and intends to take plea regarding jurisdiction of the civil court which is neither pleaded nor contended by the appellant before the trial Court and there was no relevancy with the pleadings made by him in the written statement before the trial Court, therefore, the First Appellate Court has rightly rejected the same. The judgment and decree passed by the learned First Appellate Court to the extent that the appellate court has rejected the application for amendment does not suffer from perversity or illegality which warrants interference by this Court.

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The amendment when it should be allowed and when it should not be allowed is bone of contention between the parties in civil litigation and the Hon’ble Supreme Court in various judgments examines the contingencies when the amendment should be allowed and when it should not be allowed. The Hon’ble Supreme Court in case of Asian Hotels (North) Ltd. vs. Alok Kumar Lodha & Others passed in Civil Appeal Nos. 3703-3750 of 2022 has held in paragraph 8 as under:

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“8. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and / or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges / mortgages void abinitio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action.”

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Again the Hon’ble Supreme Court in case of Basavaraj vs. Indira & Others reported in 2024 INSC 151 in paragraphs 9, 12 and 13 has held as under:

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“9. This Court in M. Revanna v. Anjanamma (Dead) by legal representatives and others11 opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order VI Rule 17 C.P.C. prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Paragraph No. 7 thereof is extracted below:

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“7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.”

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This Court in Revajeetu’s case (supra) enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.

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If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any

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application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application.”

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From bare perusal of the pleadings made in the proposed amendment before the First Appellate Court and law laid down by the Hon’ble Supreme Court, it is quite vivid that the plaintiffs intend to bring new pleadings which were not germane in the pleading made before the trial Court and if this amendment is allowed it will amount to build up new case, as such the proposed amendment cannot be allowed to be incorporated in the written statement, therefore, the learned First Appellate Court has not committed any illegality in rejecting the same.

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The appellant has also filed an application under Order 41 Rule 27 CPC for taking additional evidence by way of documents on record alleging that the suit property belongs to the Hanuman Mandir Trust but before the trial Court neither any pleading nor any evidence to this effect was brought on record by the defendant. The defendant is taking plea for the first time in the second appeal and learned First Appellate Court while rejecting the said application has taken note of the fact that the defendant was well aware of the facts of the case still he has not pleaded about this fact and also recorded its finding that the said documents are not relevant for adjudication of the lis between the parties which is paramount consideration for taking additional evidence on record. If this document is taken on record by the appellate court, it will definitely make out new case which is not permissible under the law in view of the provisions of Order 41 Rule 27 of CPC. The provisions of Order 41 Rule 27 of CPC has recently come up for consideration before the Hon’ble Supreme Court in case of Iqbal Ahmed (dead) by Lrs. &

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Another vs. Abdul Shukoor reported in 2025 INSC 1027 wherein the

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Hon’ble Supreme has held in paragraphs 8 and 9 as under:

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“8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar Vs. Nilima Mandal and Anr., AIR 2009 SC 1103 and Union of India Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence.

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As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires re- consideration by the High Court. Since we find that the matter requires re-consideration at the hands of the High Court afresh, we have not gone into the aspect of delay in deciding the appeal by the High Court as was urged on behalf of the appellants.”

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In view of the facts and circumstances of the case and law laid down by the Hon’ble Supreme Court, the application for taking additional document on record has rightly been rejected by the First Appellate Court which does not suffer from perversity or illegality warranting interference by this Court.

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In the present case, the defendant before the trial Court has not placed any material on record to rebut the execution of the sale deed and in the First Appellate Court he has sought amendment and intends to file certain documents which was not pleaded before the trial Court, therefore, a new case was proposed to be made by the defendant which has rightly been negatived by the First Appellate Court.

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Considering the above stated position of law and the facts of the case, I am of the opinion that the substantial question of law framed by this Court deserves to be answered against the appellant/defendant and in favour of the respondents/plaintiffs. Accordingly, the instant second appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. No order as to costs.

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