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2007 Supreme(SC) 925
2007(5) Supreme 41
Supreme Court of India
(From Bombay High Court)
S.B.Sinha & P.K. Balasubramanyan, JJ.
Ramchandra Sakhram Mahajan — Petitioner
versus
Damodar Trimbak Tanksale (D) & Ors. — Respondents
Appeal (civil) 2920 of 2007
(Arising out of SLP(C) No.9739 of 2005)
Decided on : 09-07-2007
Important Point
Plaintiff’s prayer for second amendment in the plaint to make his claim more precise, even though belated, so as to enable the Court to adjudicate upon it more satisfactorily ought to have allowed enabling the trial court to decide the dispute in a more satisfactory manner.
Headnote:Administration of Justice–In a suit for recovery of possession on the strength of title, the burden is on the plaintiff to establish that title–No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants,but the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. (Para 10)
Code of Civil Procedure, 1908 – Order VII, rule 17 – Plaintiff’s prayer for second amendment in the plaint to make his claim more precise so as to enable the Court to adjudicate upon it more satisfactorily ought to have allowed enabling the trial court to decide the dispute in a more satisfactory manner – The appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the plaint which would have enabled it to render a decision in a more satisfactory manner. (Para 11)
Code of Civil Procedure, 1908 – Order VII, rule 17 – Code of Civil Procedure, 1908 – Order VII, rule 17 – The delay in seeking amendment can be compensated by awarding costs to the contesting defendants. (Para 14)
Facts of the case :
According to the plaintiff, the suit property was blocked in new khasra no.327 and recovery of possession was sought in respect of 73 cents in the north-western corner of the said khasra. The case of the plaintiff is that new khasra no.327 along with khasra nos.329, 330 and 331 out of Mouza Sitabuldi, Circle No.19/27, Division No.8 at District Nagpur belonged to a Muslim family and the property was granted on lease to Balwantrao Mahajan, a predecessor-in-interest of the plaintiff. The lease deed executed in that behalf was dated 21.7.1875. The predecessors of the plaintiff had permitted the predecessors of defendants 1 to 9 to occupy a portion of the leasehold property on licence. While in such occupation, defendants 1 to 9 had demolished the structure that had been originally put up for residence in the property and were attempting to raise a commercial construction therein and to exploit the property commercially. Defendants 1 to 9 were not entitled to do so and the plaintiff was entitled to recover possession on the strength of his title. The plaintiff had pleaded that there had been a partition between him and defendants 10 to 13, but the subject matter of the suit was not divided and consequently it continued under the joint title of the plaintiff and defendants 10 to 13. Defendants 10 to 13 did not support the case of the plaintiff. For reasons of their own they purported to disown any title in the suit property. According to the plaintiff, they had been got at by defendants 1 to 9.
Defendants 1 to 9 denied the claim of the plaintiff and set up title in themselves. The licence pleaded by the plaintiff was denied. The right of the plaintiff to recover possession was questioned. It was contended that defendants 1 to 9 were in possession of the property and their family had long been in possession thereof in their own right and the plaintiff was not entitled to any relief.
Plaintiff’s prayer to amend the plaint for the second time purportedly to pinpoint the disputed property with better particulars was dismissed by the trial court. The trial Court dismissed the suit as well as the counter claim. Appellate court dismissed the Plaintiff’s appeal.
Findings of the Court :
The courts below ought to have allowed the amendment prayed by plaintiff, though belated and delay could have been compensated by awarding costs to the contesting defendants.
JUDGMENT
P.K. Balasubramanyan, J.—
1.Leave granted.
2.This appeal arises out of Special Leave Petition (Civil) No.9739 of 2005. The plaintiff in a suit for declaration of joint title with defendant nos.10 to 13, for recovery of possession of the plaint schedule property and for mandatory and prohibitory injunctions, is the appellant in this appeal. He filed Civil Suit No.53 of 1990 against the defendants 1 to 9. On objection being raised by defendant 1 to 9, the plaintiff also impleaded defendants 10 to 13 who he claimed were co-owners with him of the suit property.
3.According to the plaintiff, the suit property was blocked in new khasra no.327 and recovery of possession was sought in respect of 73 cents in the north-western corner of the said khasra. The case of the plaintiff is that new khasra no.327 along with khasra nos.329, 330 and 331 out of Mouza Sitabuldi, Circle No.19/27, Division No.8 at District Nagpur belonged to a Muslim family and the property was granted on lease to Balwantrao Mahajan, a predecessor-in-interest of the plaintiff. The lease deed executed in that behalf was dated 21.7.1875. The predecessors of the plaintiff had permitted the predecessors of defendants 1 to 9 to occupy a portion of the leasehold property on licence. While in such occupation, defendants 1 to 9 had demolished the structure that had been originally put up for residence in the property and were attempting to raise a commercial construction therein and to exploit the property commercially. Defendants 1 to 9 were not entitled to do so and the plaintiff was entitled to recover possession on the strength of his title. The plaintiff had pleaded that there had been a partition between him and defendants 10 to 13, but the subject matter of the suit was not divided and consequently it continued under the joint title of the plaintiff and defendants 10 to 13. Defendants 10 to 13 did not support the case of the plaintiff. For reasons of their own they purported to disown any title in the suit property. According to the plaintiff, they had been got at by defendants 1 to 9.
4.Defendants 1 to 9 denied the claim of the plaintiff and set up title in themselves. The licence pleaded by the plaintiff was denied. The right of the plaintiff to recover possession was questioned. It was contended that defendants 1 to 9 were in possession of the property and their family had long been in possession thereof in their own right and the plaintiff was not entitled to any relief.
5.It may be noticed that the plaintiff had amended the plaint once. He sought to amend the plaint again for what his counsel called, trying to pinpoint the disputed property with better particulars. But the trial Court dismissed the application for amendment.
6.In support of his case, the plaintiff produced a number of revenue records and other documents. For reasons not explained, he did not produce the lease deed dated 21.7.1875, the source of the title of his family as set up in the plaint. Belatedly, he tried to introduce a certified copy of the lease deed in evidence. The trial Court took the view that no foundation had been laid for adducing secondary evidence since what was sought to be produced was only a certified copy and not the original and hence discarded the lease deed. Taking the view that the other documents relied upon by the plaintiff including Ext.141 and 142 and the khasra entries for the succeeding years are not enough to establish the title of the plaintiff, the trial Court dismissed the suit. Incidentally, the trial Court also appeared to find that defendants 1 to 9 had not established the title claimed by them. But the trial Court rightly took the view that the burden was on the plaintiff to establish his title and any weakness in the defense would not entitle the plaintiff to a decree for recovery of possession. It may be noticed that defendants 1 to 9 had made a counter claim for relief against the plaintiff in respect of a portion of the property and the trial Court
