USPARVATIBAI TUKARAM TAMBOLI DIED THROUGH LRS SURESH TUKARAMTAMBOLI AND OTHERSMr v. P. Latange
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2736 OF 2023SARASWATIBAI BHIKA TAMBOLI DIED THROUGH LRS SUSHILA ALIASSHASHIKALA CHUNILAL TAMBOLIVERSUSPARVATIBAI TUKARAM TAMBOLI DIED THROUGH LRS SURESH TUKARAMTAMBOLI AND OTHERSMr. V. P. Latange, Advocate for the petitioner Mr. S. V. Kanetkar a/w Mr. S. R. Tamboli, Advocate for respondent Nos.1to 6 and 7A to 7CWITHWRIT PETITION NO. 9838 OF 2023PARVATABAI TUKARAM TAMBOLI DIED THROUGH LRS SURESH TUKARAMTAMBOLI AND OTHERSVERSUSDAIBAI ALIAS SARASWATIBAI BHIKA TAMBOLI SINCE DECEASEDTHROUGH LRS SUSHILA CHUNILAL TAMBOLIMr. S. V. Kanetkar a/w Mr. S. R. Tamboli, Advocate for petitioners Mr. V. P. Latange, Advocate for the respondentCORAM: R. M. JOSHI, J.DATE: 8th JULY, 2024PER COURT :-1.By consent of both sides, heard finally at the stage ofadmission.2.Writ Petition No. 2736/2023 is fled by the original defendantin RCS No. 32/2016 being aggrieved by the rejection of her applicationExhibit 74 for amendment to the written statement to the extent ofproposed amendment in paragraph 11B. Whereas Writ Petition No.34.wp2736.23.odt1 of 11 9838/2023 came to be filed by the plaintiff being aggrieved by the TrialCourt allowing the amendment in paragraph 11A.3.Parties are referred to as plaintiff and defendant for the sakeof convenience.4.The facts which led to filing of these petitions appearing fromthe record can be narrated in brief as under:(i)The plaintiff filed suit for possession and injunction in respect oftwo rooms situated on the ground floor in the premises known asMaganlal Smruti/ Saptabandu Sadan. It is the case of the plaintiff thatthe suit property was one of the ancestral properties of joint family ofplaintiffs and defendants. It is specifically contended that the agriculturallands were partitioned on 22/12/1956 and the house properties werepartitioned on 19/05/1957. It is claimed that since July, 1957 allconcerned sharers of the joint family properties have started occupyingtheir respective premises. It is further case of the plaintiff that in theyear 2004 they have inducted defendant as a gratuitous licensee. Nowthe suit is filed for seeking possession of the suit property from thedefendant. Defendants filed written statement denying the contentions ofthe plaintiffs including the contentions with regard to the previouspartition. It is claimed by the defendants that they are owner of the suitproperty.34.wp2736.23.odt2 of 11 5.In this backdrop an application came to be filed under Order6 Rule 17 of the Code of Civil Procedure (for short ‘CPC’) by thedefendant to amend the written statement to incorporate paragraphs11A and 11B therein which read thus;^^११-अ½ वादीनेसदरहुदाव्यातदिदनांक१९@०५@ १९५७रोजीचेतथाकथीतवाटणी पत्राचीदाव्यातदाखलकेलेलीप्रतखरीवकायदेशि#रनसुनप्रतितवावीसकबुलनाही- दिदनांक१९@०५@ १९५७रोजीवाटणी झाल्याचेववाटणीपत्रलिलहुनदिदल्याचेवादीचे म्हणणेखरेनाही- जरअसालेखीवा टणीपत्राचादिदनांक१९@०५@ १९५७चा तथाकथीतदस्तपाट+मध्येझालेअसतेतरस्पे-मु-नं- २@ १९६९चेदाव्यातवत्यावर झालेल्याअपीलातसदरतथाकथीतवाटणीदस्ताचाउल्लेखजरूरआलाअसता- सबबवादीनेयादाव्यातखोटावबनावटपुरावाआणण्याचाअसदहेतुनेप्रयत्नकेलाआहे-११-ब½ प्रतितवादीचेवडीलशि7काबंडु१९६९सालाचाआधीपासुनदाव्यातीलघरात त्यांचाकुटूंबीयांसहरहातहोतेवदावादिमळकतीतत्यांचाचकब्जाववदिहवाटहोती- कारणदाव्यातीलघरांतस्वतंत्रदिवजदिमटरशि7काबंडुयांचेनावावरदिदनांक१६@११@ १९६७सालापासुनघेतलेलेआहेवम्हणूनतेव्हापासुनसदरदावा दिमळकतीचादिमटरचेदिवजबीलदिमकाबंडुवत्यांचेहयातीनंतरत्यांचेवारस आजतागायत7रतात- त्याचप्रमाणेरनाळेग्रामपंचायतरेकॉड@वरुनघरनंबर५६७चे काही7ागातम्हणजेदाव्यातीलघरात१९६९सालाचापुव+पासुनशि7काबंडुहे 7ोगवटदारअसल्याचेस्पष्टदिदसते- तसेचबऱ्याचवर्षाा@पुव+पासुनरनाळेगावाला सिसटीसव्हFलागुझाल्यानंतररनाळेग्रामपंचायतघरनं. ५६७चेदोन7ागसिसटीसव्हF रेकॉड@नुसारकेलेलेदिदसतातवएका7ागालासिसटीसव्हFनं- ५०४लावलाअसुनत्या 7ागाचे7ोगवटदारशि7काबंडुवत्यांचेनंतरत्यांचीपत्नीवमुलगीlnjgw izfroknh ;kaphukoslq/nk HkksxoVnkj Eg.kwu ykoyh xsyh आहेत- तसेचदुसऱ्या7ागालासिस-स-न- ५०५ लावलाअसुनत्या7ागाचे7ोगवटदारमगनलालवत्यांचानंतरत्यांचावारसांची म्हणजेवादींचीनावेलागलीआहेत- सबधयासव@रेकॉड@वरुनप्रतितवादींचावत्यांचा वतिडलांचाकब्जाववदिहवाटदावादिमळकतीत१९६९सालापुव+पासुनअसल्याचे स्पष्टदिदसते- त्याचप्रमाणेद्रावादिमळकतीचाकब्जाववदिहवाटशि7काबंडुयांची असतांनात्यांनीमगनलालवइतरHkkokafo:/n स्पे-मु-नं- २@ १९६९चादावासरस दिनरसवाटणीसाठीलावल्याचेदिदसते- सदरदावा१९७०सालीरद्दझाल्यानंतर त्यावरमा- नामदारहायकोटा@तअपीलनंबर१९६@ १९७१केलेहोतेवतेदिदनांक३१@१०@ १९७९रोजीफेटाळलेगेलेअसेदिदसते- सदरदाव्याचावअपीलाचा दिनकालाप्रमाणेग्रामपंचायतघरनं- ५६७चादिमळकतीचेमालकवादीचेपुव@ज मगनलालयांनाजरी/kjys असलेतरीदाव्याचादिनकालाआधीकिंकवाअपीलाचा दिनकालानंतरवादीकिंकवावादीचेपुव@जमगनलालयांनीदिमकाबंडुवत्यांचा कुटुंबीयांचाताबेउप7ोगातववहीवादीतअसलेलीरनाळेयेथीलग्रामपंचायतघरनं- ५६७पैकीचेदोनगाळेराहतेघराचीम्हणजेदावादिमळकतत्यांचेताब्यातपरत दिमळण्यासाठीसदरहुवादीकिंकवात्यांचेपुव@जमगनलालयांनीकोणताहीदावाअथवा प्रतितदावाकेलानाहीवप्रतितवादीतसेचत्यांचेपूव@जशि7काबंडुयांनादावा दिमळकतीतुनकधीचप्रत्यक्षबेकब्जाकरण्याचाप्रयत्नकेलानाहीकिंकवाबेकब्जाकेले34.wp2736.23.odt3 of 11 नाही- सबबसदरदावादिमळकतयाप्रतितवादीचेवडीलशि7काबंडुयांनीमगनलालव त्यांचेवादीवारसांचीमालकीनाकारुनउघडपणेवअव्याहतपणेवादीवत्यांचेपूव@जांचे जाणीवेतदिदनांक३१@१०@ १९७९चाअंतीमदिनकालानंतरपासूनसुध्दा बारावर्षाा@पेक्षाजास्तकाळमालकीहक्कानेताबेउप7ोगातठेऊनवहीवाटकरत असल्यानेप्रतितवादीचेवडीलशि7काबंडुहेदिवरुध्दकब्जाने(Adverse Possession) मालकझालेलेअसल्यानेसदरचेप्रतितवादीसुध्दावारसाहक्कानेमालकआहेत- तसेच मगनलालवत्यांचेवादीवारसांचावरनमुदसंपुण@दिनष्क्रिWXयते(Inaction) मुळेसुध्दा शि7काचंडुवप्रतितवादीयांनादाव्याचादिमळकतीचीदिदनांक३१@१०@ १९७९रोजीचा अंतीमदिनकालापासुनvWMOglZ टायटलनेमालकीदिमळालीआहे-**6.Plaintiffs opposed this application. After hearing both sideslearned Trial Court partly allowed application by permitting amendmentto the extent of paragraph 11A only.7.Learned counsel for the defendants submits that Trial Courthas committed error in not considering the fact that the application foramendment is filed before framing of the issues and at that stage allrelevant amendments ought to have been allowed by the Trial Court. It iscontended that the amendment sought in clause 11B is to the extentthat the defendants have become owners of the suit property by way ofadverse possession. It is further argued that the effect of proposedamendment cannot be considered and merits thereof need not be goneinto. 8.Learned counsel for the plaintiff has strenuously submittedthat it is not open for the defendant to challenge the fact that theplaintiffs have become the owners of the suit property by virtue ofdecree passed in Spl. Civil Suit No. 2/1969 which came to be confirmed34.wp2736.23.odt4 of 11 by the order of Division Bench of this Court. It is thus his contention thatonce it is held that the suit property is the exclusive property ofplaintiffs, in view of Section 40 of Evidence Act the defendants areprecluded from raising the said issue and there is embargo for the Courtto take cognizance of such issue which has attained finality. In order tosupport his submission he has placed reliance on the judgment of theHon’ble Supreme Court in case of Karam Kapahi and others Versus LalChand Public Charitable Trust and Another, (2010) 4 SCC 753. It is hisfurther submission that as far as the averments of the plaintiffs withregard to the partition by virtue of deed dated 19/05/1957 is concerned,the said fact was never disputed by Bhika during his life time, throughwhom the defendants claim their right in the suit property. Thus, it is hissubmission that it amounts to constructive res judicata and hence notopen for it’s agitation in this suit. To support his submission he placedreliance on the judgment of Hon’ble Supreme Court in case of IshwarDutt Versus Land Acquisition Collector and Another, (2005) 7 SCC 190. Itis further argued that a party cannot be permitted to raise plea which isin consistent with earlier plea and in any case and the same should notbe mutually destructive. He drew attention of Court to Section 116 ofEvidence Act, to submit that it is not open for a Tenant to denying thetitle of landlord. To substantiate this submission reference is made to thejudgment in case of Arundhati Mishra (Smt) Versus Sri Ram Charitra34.wp2736.23.odt5 of 11
Legal Reasoning
Pandey, (1994) 2 SCC 29 and Jaspal Kaur Cheema V. M/s IndustrialTrade Links, AIR 2017 SCC 3995.9.Cardinal test for deciding an application for amendment isthat whether it is necessary for determination of real question incontroversy and whether injustice would cause to other side by allowingof such amendment. Law on the point of amendment to the writtenstatement is fairly settled to say that as compared to the plaint,amendment to the written statement should be allowed liberally. As faras the principles that govern the issue of amendment to writtenstatement useful reference can be made to the judgment of Hon’bleSupreme Court in case of Usha Balashaheb Swami & Ors Vs. KiranAppaso Swami & Ors, AIR 2007 SC 1663, wherein it is held that,“A prayer for amendment of the plaint and written statement standon different footings. The general principle that amendment ofpleadings cannot be allowed to alter materially or substantiallycause of action or nature of claim applies to amendments ofplaint. Such rigid rule does not apply to amendment to writtenstatement. Keeping it mind above principles of law on subject,factual matrix of the instant case is considered.”10.Reverting back to the factual matrix in present case, as faras the issue of the suit property house No. 567 being already partitionedis concerned, undisputtedly the said issue has attained finality. Thus,there is substance in the contention of the learned counsel for theplaintiffs that in view of Section 40 of the Indian Evidence Act the said34.wp2736.23.odt6 of 11 issue raising challenge to the title of plaintiffs in respect of the suitproperty cannot be taken up nor can it be entertained by the Trial Court.Once, it is held that legally such plea was not available for the defendantto raise, question arises as to whether defendant can be prevented fromtaking up plea that by virtue of continuously in possession of the suitproperty for more than 12 years adverse to the title of the plaintiff, hasacquired ownership by adverse possession. In this regard once the claimof the defendant challenging the title of plaintiff is prohibited by law tohave been raised by the provision of law, technically there remains noinconsistently on record in the pleas. Even otherwise careful perusal ofwritten statement shows that there is a claim to be owner of the suitproperty suit its source has not been specifically pleaded. Now specificplea by way of amendment is sought to be claimed that ownership isacquired by adverse possession.11.Herein this case amendment is not sought to withdraw anyadmission given in favour of plaintiff but the proposed amendment aimsat providing details/ explanation to the pleading in the written statement.No prejudice much less injustice would cause to the plaintiff by allowingsuch amendment. It would not be open for him to ressist the same, atthis stage, as burden would be solely on defendant to prove his thiscontention/defence.34.wp2736.23.odt7 of 11 12.In so far as the proposed amendment by clause 11A isconcerned, if the said amendment to the written statement needs to beconsidered on the basis of the pleadings of the plaintiff. In paragraph 2of the plaint it is specifically pleaded that house properties werepartitioned by meets and bounds on 19/05/1957. This Court has raisedspecific query to the learned counsel for the plaintiffs to show as towhether this issue of partition on this particular date i.e. on 19/05/1957was ever occurred for consideration before the Court in Special Civil SuitNo. 02/1969. Though the pleadings in the said suit or the judgment ofthe Trial Court is not available for perusal but the judgment of DivisionBench this Court can be referred in this regard.13.Perusal of the entire judgment of the Division Bench does notdisclose there being any issue about the partition effected on19/05/1957. No doubt it is held that the suit property is alreadypartitioned. However, merely because the same is being accordingly heldby this Court, defendant cannot be precluded from disputing thecontention of the plaintiff that the said partition was effected on the basisof so called document or on 19/05/1957. In order to apply constructiveres judicata or issue estoppel, the said precise issue with regard to aparticular document or partition on particular date was never in questionin the earlier proceeding.34.wp2736.23.odt8 of 11 14.With regard to the judgments cited of Hon’ble Supreme Courtin case of Karam Kapahi and others (supra) lays down law with regardto permissibility of inconsistent plea. Whereas judgment in case of BhanuKumar Jain Versus Archana Kumar and Another, (2005) 1 SCC 787 andIshwar Dutt, deal with issue of estoppel / constructive res judicata/ issueestoppel. The general principles laid down on the issues cannot bedisputed but it’s application depends upon facts and circumstancesinvolved in each case. The facts as they appear from record, mentionedherein above, make these judgments not coming to the aid of plaintiff inany manner, on both points i.e. inconsistent / mutually destructive pleaand estoppel.15.In case of Arundhati Mishra (Smt) (supra), defendant hadraised specific plea that plaintiff is benamidar and defendant is realowner of suit property and in such circumstance plea of adversepossession is not allowed. There cannot be any dispute made with regardto the proposition sought to be canvassed by the learned counsel for theplaintiff that in appropriate cases principle of the constructive resjudicata may apply and that the party who claims right title or interestthrough the predecessor cannot be permitted to raise such issue. In theinstant case however the source of ownership of suit property is notspecifically claimed in written statement, which is sought to be explained34.wp2736.23.odt9 of 11 by way of claim of adverse possession. In respectful view of this case,said judgment would not apply to the present case.16.As far as cited on the point as to whether the tenant ispermitted to deny title of the landlord is concerned, as the plaintiff hascome out with case that the defendant in the gratuitous licensee. Thereis no doubt that it is within the right of defendant to deny suchrelationship. Only consequence thereof would be that such plea becomesa ground for eviction of tenant or termination of tenancy. It is pertinentto note that the said relationship has not been claimed on the basis ofany document but it is said to be a oral arrangement as claimed by theplaintiff. Similarly, there is nothing on record to show that defendantsadmitted such relationship of landlord and tenant, at any prior time. Insuch circumstances, defendant can not be prohibited from raising disputeabout the said alleged claim. Section 116 of Evidence Act may not applyin cases where a plaintiff raises claim that defendant is tenant and tosupport this stand produces no material on record. Merely becauseplaintiffs have made a claim of defendant being gratuitous licensee ofsuit premises without placing any material on record to support thesame, defendant can not be prohibited to raise plea of ownership byadverse possession. On the face of it embargo created by Section 116 ofEvidence Act, does not attract to case in hand. 34.wp2736.23.odt10 of 11 17.In any case when the plaintiff claims that since December,2004 the defendant was inducted in the suit premises as gratuitouslicensee, the burden would be on the plaintiff to substantiate the saidcontention. Similarly, on the other hand the burden would be on thedefendant to prove that the suit property is held continuously andadverse to the owner for 12 years or more. All these issues could bedecided only on evidence at the time of hearing of the suit on merit. Inthe suit issues are yet to be framed/finalized. Thus even technically thereis no impediment to allow amendment to written statement at this stage,as it is relevant for the determination of issues involved in the suit. 18.The upshot of above discussion is that amendment sought bydefendant to the written statement deserves to be allowed in entirety.The learned Trial Court has committed error in not allowing amendmentin clause 11B. The same is hereby allowed. Amendment be carried outwithin two weeks. This Court finds no merit in the challenge to theamendment in clause 11A.19.In view of above discussion, Writ Petition No. 2736/2023stands allowed. Writ Petition No. 9838/2023 is dismissed. (R. M. JOSHI, J.)ssp34.wp2736.23.odt11 of 11