1981 Supreme(MP) 277

S.S. Sharma, J.
Ramchand v. Chhunnilal.
S.A. No. 872 of 1974 (1) ; Decided on 16-4-1981.

Headnote:(1) Civil P.C.,1908 -O. 6, R. 17-amendment sought at appellate stage without explanation-also not bonafided`refusal is proper.

        (2) Civil P. C., 1908-O.41, R. 27-additional evidence not sufficient to improve the cased`refusal is proper.

       

        (3) Civil P.C., 1908-O. 14, R.1 -non framing of issue -when of no consequence-parties aware -of pleading and led evidence-prejudice also not caused-non-framing of issue is of no consequence.

       

        (4) Land Acquisition Act, 1894 -Ss 11, 16 and 17-making an award under S. 11-consequences of-property vests in the government after taking possession under S. 16 or 17.

        The trial Court held that since the possession of the property had not been taken it did not vest in the State and continued to belong to the plaintiff. Plaintiffs suit was accordingly decreed. Before the lower appellate Court it was not disputed that the suit house was the subject matter of acquisition proceedings. Learned District Judge also held that the plaintiff was not divested of his title and his fight to recover the rent was not extinguished. Before the lower appellate Court objection about non-framing of proper issues was also raised by the appellant-defendant, but the same was negatived. The application under Order 41, rule 27CPC was also made on behalf of the appellant, but it was rejected. The application for amendment of the written statement was also dismissed by the District Judge.

        Held: Mere making of the award under section 11 of the Act would not vest any title in the Government, as the language of this section indicates, it is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment amongst persons known or believed to be interested in the land. It is mere in the nature of an offer. The property vests absolutely in the Government free from all encumbrances when the possession is taken under section 16 or 17 of the Act. See; Balwant Narayan Bhagde v. M. D. Bhagwat, (AIR 1975 SC 1767). There is no evidence whatsoever to show that the possession had been taken by the Collector.

        Learned counsel for the appellant then contended that the trial Court did not frame any issue on the question of possession. It was the appellant defendant who had raised the plea about the extinguishment of the title of the plaintiff due to the acquisition proceeding. He had cross-examined the plaintiff at length on the facts relating to the receipt of the compensation determined in the acquisition proceedings. As already held this by itself was not sufficient to vest the title in the Government. The defendant in fact had all along been contending that the receipt of the compensation was sufficient to divest the plaintiff of the title which is not legally correct. The parties were well aware of their respective pleadings. Thus, in my opinion, the lower appellate Court rightly held that there had been no prejudice to the appellant-defendant because of the absence of an issue on the question of possession. As a matter of fact, learned counsel for the appellant could n0t, even before me, point out the alleged possible prejudice due to the absence of an issue about possession. .

        Lastly, learned counsel sought to contend that the Court below should have allowed the appellants application under Order 41, rute 27 CPC. What the defendant wanted to produce in evidence was copy of an order sheet dated 5-6-1963 in the acquisition case. All that this order-sheet indicates is that the house owners were to vacate the house within eight days and the BSP was required to take possession. The lower appellate Court held that this by itself is not sufficient to prove that the possession had infact been taken by the Collector or the Company. In view of the facts and circumstances, I am clearly of the opinion that the learned District Judge rightly rejected· this application. Nothing cogent was pointed out which could persuade me to take a contrary view in this behalf. The lower appellate Court was fully justified in rejecting the amendment as to the effect that after the acquisition, the employees of the BSP had dismentled the house in 1964 and the defendant had reconstructed the house after investing Rs. 1,800/-. For that reason, the plaintiff can neither be treated as the owner or that house nor is the entitled to recover the rent. On the face of it the amendment besides being delayed is not bonafide. There is no explanation for not raising this plea in the written statement. Amendments of this nature, cannot be allowed just by mere asking. The lower appellate Court was therefore, fully justified in rejecting the application for amendment. AIR 1975 SC 1767 followed. Appeal dismissed.