IMPORTANT POINT
Amendment in the plaint should be allowed unless mala fide or if by blunder the plaintiff caused injury to opponent which cannot be compensated for by an order of cost.

Judgment

M.Y. Eqbal, J.

This appeal by special leave is directed against the judgment dated 01.03.2005 of the High Court of Madhya Pradesh, which allowed the respondents’ appeal and dismissed the suit filed by the plaintiff-Appellants for declaration of title and possession of the suit property.

2. The factual matrix of the case is that the suit property was originally owned by Hardayal who had two sons Raghuvardayal and Mahadev Prasad. When Hardayal died, the suit property fell to the share of Raghuvardayal and on his death it passed on to his wife Sumitra and then his son Radhakishan and then Radhakishan’s wife Ajuddhibai.

3. The plaintiff/appellant no.1 filed a suit for declaration of title and possession of the suit property in Gwalior against the deceased Nandram and deceased Kashiram, who were original defendant nos.1 and 2 respectively and are now being represented through legal representatives and also against defendant no.3 Rukmani Bai. The case of the Appellants was that before Ajuddhibai died issueless in 22.6.1961, she had executed a Will dated 21.1.1961 in favour of plaintiff/appellant no.1 who was the wife of Baijnath, son of Mahadev Prasad. The probate of the Will was also stated to have been obtained. The Appellants challenged the validity of the sale deed dated 19.12.1950 purported to have been executed by Ajuddhibai in favour of defendant no.3-Rukmani Bai and sale deed dated 1.2.1962 executed by Rukmani Bai in favour of deceased Nandram-defendant no.1 and deceased Kashiram-defendant no.2 and alleged that defendant nos.1 and 2 were thus in illegal possession of the suit property. The defendants Nandram and Kashiram denied the averments made in the plaint and contended that they had legally obtained the title of the suit property vide sale deed dated 1.2.1962 though one Ram Singh who was the sub-tenant of Ajuddhibai.

4. The trial court held that the Will in favour of plaintiff/appellant no. 1 was proved and that she had become successor of Ajuddhibai through probate. The sale deeds dated 19.12.1950 in favour of Rukmani Bai were held to be not proved in view of the contradictory statements made by the defendants’ witnesses, the failure of the defendant no.3 to attend court and prove the sale deeds, the absence of the signatures of Ajuddhibai on the sale deeds, the failure to mutate the suit property in their names and as Ajuddhibai was in Vrindavan and not in Gwalior as alleged at the time of execution of the sale deeds. Ram Singh was noted to have been in possession of the suit property till his death in 1956 and the defendants were held to have not acquired title by adverse possession as the suit was filed in 1964. The defendants Nandram and Kashiram were held to have not acquired any title over the suit property. Hence, the suit was allowed and the defendants were directed to hand over possession of the suit property to the plaintiff-appellant.

5. Aggrieved by the judgment of the trial court, the defendant nos.1 and 2 preferred an appeal before the District Court, which upheld the findings of the trial court and dismissed their appeal.

6. The defendants then assailed the judgment of the District Court by preferring second appeal in the High Court, which was eventually allowed. However, in the challenge made before the Supreme Court by way of appeal by special leave, the Apex Court set aside the order of the High Court and remitted the matter back with directions to the High Court to first frame questions of law, if any, and then proceed with the matter and decide the same in accordance with law.

7. On remand, the High Court formulated substantial questions of law and then heard the learned counsel appearing for both the parties and passed the impugned judgment. The High Court held that the suit was within the period of limitation as the lower courts have recorded concurrent findings as to the exclusive possession of one Ram Singh till his death in 1956. On the third issue, the High Court held that there is a concurre