Uma Shankar Singh v. Smt. Shanti Devi

the petitioner who is defendant in this case. A suit was filed by the plaintiff for setting aside the deed of gift executed on 22.9.1981. The petitioners filed their written statement contesting the case of the plaintiff. In the plaint at paragraph 10 it has been stated on behalf of the plaintiff that the 2 Patna High Court CWJC No.562 of 2012 (6) dt.19-02-2013 plaintiff had always been in possession of the deed of gift and since the deed of gift was never acted upon, the deeds remained in possession of plaintiff nos. 1 and 2 since the very beginning. In the written statement a defence has been taken on behalf of the defendant wherein he has stated at paragraph 32 that he had handed over the deeds of gift to the husband of plaintiff no. 1 in the month of October, 2006, for the purposes of getting their names mutated in the Anchal and municipality with respect to the lands covered in the deed of gift. The petitioners-defendants have made a prayer that they may delete the year 2006 and replace it by the year 1981. Apart from the aforesaid amendment, the defendant also seeks to add paragraph 32-A and 32-B which reads as follows: 32-A: That the plaintiffs and husbands have taken steps to mutate the names of these defendants before Anchal Adhikari, Manpur and ultimately the names of the defendants were mutated with respect to the lands covered under the deeds of gift under order dated 25.7.1984 and correction slip was prepared on 26.7.1984. All the steps to mutate the names of the defendants were taken by the plaintiffs and their husbands. Rent receipts were also granted in the name of the defendants on payment of rent. Thereafter the plaintiffs returned the both the deeds of gift to the defendants in the month of August 1984 and both the impugned deeds remained with the defendants in their custody. 32-B: That in the month of August, 2006 the plaintiffs and defendants that their names were to be mutated in Gaya Municipal Corporation which was necessary to be done to remove the future complication and the defendant their husbands informed 3 Patna High Court CWJC No.562 of 2012 (6) dt.19-02-2013 having good relation with the plaintiffs and on the basis of the reposed confidence to them handed over the original impugned deeds of gift to the plaintiffs and their husbands in the month of August 2006 in belief and good faith. The defendants had or have never scented any foul play to be played by them. On receipt of the original deeds of gift they filed the present suit on 10.11.2006. Recently the defendants received notices from L.R.D.C. Gaya about defendants with respect to the lands covered under the impugned deeds of gift, which case has been filed in the month of Sept./October, 2006. The said Act of the plaintiffs are arbitrary, illegal and against the law. the cancellation of demand of By adding the aforesaid paragraphs to paragraph 32, the defendants have made out a case that the deed of gift were handed over to the plaintiff in the year 1981 which were subsequently returned to the defendant. It is also pleaded that they were handed over in the year 1984 to the plaintiff and returned by the plaintiff subsequently. Lastly, they were handed over in the year 2006 to the plaintiff and taking advantage of this fact they have filed the present suit. On behalf of the plaintiff-respondent, an argument has been raised that the defendant has admitted that he handed over the deed of gift to the plaintiff in the year 2006 and as such the defendant cannot take a plea that the defendant was in possession of the deed of gift from the year 1981, and raise a legal plea that the suit is time barred. The submission on behalf of the respondent is that it amounts to altering an admission made in the written 4 Patna High Court CWJC No.562 of 2012 (6) dt.19-02-2013 statement. In support of the aforesaid submissions, counsel for the petitioners refers to paragraph 33 and 36 of the written statement. Paragraph 33 and 36 read as follows:

33. That since the 25 years the impugned deeds of Gift dated 22.9.1981 were in custody of these defendants. But the plaintiffs had never took any steps to cancel the impugned deeds of Gift they executed on 22.9.1981. As such any proceeding or the present suit against the impugned deeds of Gift are hopelessly time barred.

36. That the contentions made in para 10 are not true, wrong and baseless and are hereby denied. These defendants respectfully submit that they were present at the time of execution of both the deeds of Gift and had all knowledge of the Gift deeds and Gifted properties and these defendants had accepted Gifts and its properties given to them by the plaintiffs. It is not true that the impugned deeds of Gift were remained with them rather the deeds of Gift were with these defendants and these defendants had handed over those two original deeds of Gift to the husband of plaintiff no. 1 for mutation of the names of these defendants in the month of October 2006, and after getting the original deeds of Gift dated 22.9.1981, the husband of the plaintiffs hatched out conspiracy to snatch the right of these defendants accrued the said impugned deeds of Gift dated 22.9.1981 and got filed A this frievolous suit against these defendants. hopelssly time barred suit, crafted cunningly can not be allowed to proceed and it should be dismissed in limine in this core alone. Allegations to the contrary made in para 10 of the plaint are hereby denied. thereon under After considering the rival contentions, this Court concludes that the amendment of a written statement is not 5 Patna High Court CWJC No.562 of 2012 (6) dt.19-02-2013 necessarily governed by the same principles as the amendment of a plaint, the defendant may add a new ground, or raise a defence or substitute the same, in contrast, the plaintiff cannot be allowed to change the cause of action through an amendment. For the purposes of substantiating his submissions, counsel for the petitioners refers to the case of Sushil Kumar Jain Vs. Manoj Kumar & Anr. [2009 (4) PLJR 69 (SC)]. The facts of the case are quite similar to the present facts as the defendant in that case wanted to change the year as well as the month in various paragraphs of his written statement. The amendment in the present case does not amount to changing an admission, as the defendant has not admitted that the plaintiffs were in possession of the deed of gift since 1981 rather they have said that the plea raised by them that they were always in possession of the deed of gift is baseless, as, if, they were in possession of the deed of gift, they would have filed a suit to set aside the said deed of gift much earlier. Counsel for the respondents on the other hand relies on a judgment of Bollepanda P. Poonacha & Anr. Vs. K.M. Madapa [(2008) 13 SCC 179]. In this case the Apex Court held that one cause of action cannot be substituted by another and any admission made in the pleadings cannot be allowed to be substituted or taken away by amending the written statement. This Court finds 6 Patna High Court CWJC No.562 of 2012 (6) dt.19-02-2013 that there can be no denying the fact that the parties cannot amend the cause of action or for that matter amend the pleadings to the extent of changing an admission made therein. However, in the present case, the amendment neither amends a cause of action or takes effect of any pleading, therefore, the present case is distinguishable from the facts of the case referred to aforesaid. The next case referred to is the case of Gautam Sarup Vs. Leela Jetly & Ors. [(2008) 7 SCC 85]. In this case the appellant had filed a suit for declaration of title to the suit properties and for a decree of permanent injunction. Shanti Sarup had executed a Will in favour of respondent nos. 1, 2, 3 and 6. the Will was executed on

23.9.1999 bequeathing the property to his daughters and to Ritu Sarup his grand daughter who was a handicapped girl. Respondent no. 6 filed a written statement. Later she sought permission to withdraw her written statement and file a fresh written statement as she claimed that she had no knowledge about the facts and she had signed on the written statement. Her application was rejected. She then moved the High Court wherein the High Court observed that Smt. Jetly may file an application under Order 6 Rule 17 of the Code of Civil Procedure. Accordingly, she filed an application under Order 6 Rule 17 which was allowed. The matter came up to the Supreme Court wherein it had held that “a categorical admission 7 Patna High Court CWJC No.562 of 2012 (6) dt.19-02-2013 cannot be resiled from but in a given case it may be explained or clarified”. On the basis of the aforesaid judgment, counsel for the respondents submits that the defendants have by the amendment withdrawn their admissions. In view of the fact that they had already stated at paragraph 36 that the gift deeds were always in the possession of the plaintiff it is wrong to say and they had made an admission that the gift deeds were in possession of the plaintiff since 1981. While parting with the order, I may state that the evidence of the parties has not yet commenced in this case, and the amendment has been introduced at the initial stage. In view of the discussions aforesaid, this Court sets aside the order dated 23.11.2011, passed by the Sub-Judge, 1st, Gaya in Title Suit No. 278 of 2006. This writ application is allowed. Sanjay/- (Sheema Ali Khan, J.)