Gafur Bandu Mulla and ors. Vs. Khutubbi Mard Kondiba Mulla and ors. - Court Judgment

Excerpt:
[a] civil procedure code, 1908, order 6, rule 17 - amendment to written statement - after closure of evidence amendment ought not to be allowed without giving opportunity to plaintiff for amendment in plaint and opportunity of leading evidence - impugned amendment vitiated.; when such a amendment was allowed it was mandatory on the trial judge to allow the plaintiffs to amend their pleadings in the plaint and to allow them to lead evidence, if they so desired. the trial court failed to do this which prevented the plaintiffs from raising any plea by amending their pleadings and leading evidence. therefore, the said order passed at exh. 154 is clearly illegal in the eyes of law.;[b] civil procedure code, 1908, section 11 - res-judicata - suit for partition and separate possession - earlier suit for declaration of share and instituted 45 years ago - held, plea of res judicata not attracted.;since the decree at exh. 163 obtained in the year 1925 being declaratory in nature, it does not operate res judicata to the present suit, which was filed in the year 1971. in view of this legal position, in my opinion, both the courts below erred in coming to the conclusion that the present suit filed by the plaintiffs was barred by the principles of res judicata, requiring me to set aside the decisions of both the courts below.;[c] limitation act, 1963 - articles 64 and 65 - adverse possession - parties to the suit residing jointly in suit premises - no plea of ouster taken by defendants - plea of adverse possession not attracted.;in my opinion, when the parties are staying jointly there is no question of claiming adverse possession by one party against the other. at the highest what can be claimed is the ouster of one party by the other party. however, in the present case there is no plea of ouster taken by the contesting defendants. on the contrary, the defendants have admitted the joint possession of the plaintiffs with the defendants till the year 1965. in view of the above, the finding of the lower appellate court that alternatively the contesting defendants have become owners by adverse possession is patently illegal and liable to be set aside. - - in fact, the contesting defendants in their written statement at para 6 have clearly stated that the suit property in the self acquired property of their father and the father of plaintiff nos. the trial court failed to do this which prevented the plaintiffs from raising any plea by amending their pleadings and leading evidence. 154 is clearly illegal in the eyes of law.m.l. dudhat, j.1. this second appeal is preferred against the judgment and order dated 22nd june, 1979, passed by the extra assistant judge, satara, dismissing civil appeal no. 43 of 1977 and confirming the judgment and order dated 20th november, 1976, passed by the joint civil judge, junior division, karad, dismissing regular civil suit no. 182 of 1971 with costs to defendant nos. 1 to 4, 6, 7, 9, 10 and 13. the appellants-original plaintiffs filed the aforesaid suit against the respondents defendants for partition and separate possession of the 1/3rd share in the suit property. it was the case of the plaintiffs that bandu-husband of plaintiff no. 2 and father of plaintiff nos. 1 and 3 had three brothers viz. kondi, gulab and one more brother who died without leaving behind him any heirs. it was further the case of plaintiffs nos. 1 and 3 that their father had 1/3rd share in the ancestral joint muslim family properties. it was further their case that defendant nos. 1 to 17 are the heirs of kondi and defendant no. 18 is the son of gulab. the plaintiff nos. 1 and 3 further averred in the plaint that their father bandu expired in the year 1940 and at that time they were minors living jointly with kondi and gulab till the year 1965. in the year 1963 kondi expired and thereafter defendant nos. 1 to 17 started harassing the present plaintiffs and therefore, in the year 1965 they left the suit premises where they were residing jointly with the other members of the deceased kondi and gulab. it was further averred in the plaint that cause of action to file the suit accrued to them in 1971 and, therefore, they filed the present suit on 2nd august, 1971, for partition and separate possession of their share in the joint family property. while defendant nos. 11 and 18 by their written statements admitted the claim of the plaintiffs, defendant nos. 8, 12, 14 to 17 were not represented. therefore, the real contesting defendants viz defendants nos. 1 to 4, 6, 7, 9, 10 and 13 took a specific plea in their written statements that the suit property at no stage belonged to bandu father of plaintiffs nos. 1 and 3 or the plaintiffs at any time. the said property, according to them, was the self acquired property of the contacting defendants and their father and, therefore, the plaintiffs are not entitled to demand share in the said property.2. it is pertinent to note at this stage that neither in their written statements nor in their subsequent depositions the contesting defendants denied the avernment of the plaintiffs that till the year 1965 the plaintiffs were staying jointly with the defendants and it is only after the death of kondi in 1963 that the defendants started harassing them and, therefore, in the year 1965 they left the suit premises. however, after the evidence was led by both the sides and the matter was fixed for arguments the contesting defendants filed application on 17th november, 1976, vide exh. 154 for the amendment of the written statement stating that in the deposition defendants no. 2 stated that the father of plaintiff nos. 1 and 3 filed suit no. 602 of 1925 before the civil judge, junior division, karad, for partition and separate possession of the suit properties and obtained the necessary decree in the year 1925. since the aforesaid fact was revealed to the contesting defendants only after the said deposition was over, they filed the said application for the amendment of the plaint for taking the specific stand of res-judicata. the said application was resisted by the plaintiffs and on the same day of the presentation of the said application the trial court allowed the said amendment. thereafter, the trial court by its judgment and order dated 20th november, 1976, came to the conclusion that in view of the fact that the father of plaintiffs nos. 1 and 3 had filed suit no. 602 of 1925 in respect of the suit property and obtained a decree, the present suit is not maintainable on the ground of res-judicata. however, on the ground of adverse possession, the trial court held that since the plaintiffs were jointly residing with the defendants till the year 1965 there is no question of adverse possession because the present suit is filed by the plaintiffs on 2nd august, 1971, and dismissed the suit with costs to the aforesaid defendants. against the dismissal of the suit by the trial court on the ground of res-judicata, the plaintiffs preferred civil appeal no. 43 of 1977 before the district judge, satara, and the extra assistant judge by his decision dated 22nd of june, 1979, dismissed the said appeal with costs. the lower appellate court confirmed the finding of the trial court on the point of res-judicata while reversing the finding on the point of adverse possession in favour of defendants. against the aforesaid decision of the lower appellate court the plaintiffs have come in this second appeal.3. mr. walavalkar, the learned counsel, appearing on behalf of the appellants-plaintiffs contended that both the courts below were wrong in allowing the amendment to the written statement as claimed by the defendants vide exh. 154 and coming to the conclusion that the plaintiff's suit is barred by the principles of res-judicata. in order to support this contention he submitted that after the evidence was over on 16th november, 1976, the contesting defendants presented their application on the next day i.e. 17th november, 1976, for amendment of their written statement praying that the view of the earlier suit no. 602 of 1925 filed by the father of plaintiff nos. 1 and 3 for partition and separate possession of all the properties including the suit property, the present suit is barred by the principles of res-judicata and, therefore, allowing such an application at a belated stage the trial court has prejudged the plaintiff. according to him, the trial court has virtually lost sight of the fact that the amendment under order vi, rule 17 of the code of civil procedure should be allowed only if these court finds absolutely necessary that for the purpose of determining the real question in the controversy pending in the suit such amendment is required to be carried out. he, therefore, contended that in the present case had the trial court applied its mind it would have come to a definite finding that from what has been stated by the contesting defendants in their written statement such an amendment was not at all warranted. in fact, the contesting defendants in their written statement at para 6 have clearly stated that the suit property in the self acquired property of their father and the father of plaintiff nos. 1 and 3 and that the plaintiff no. 2 had at no time in the past any right towards the suit property in any way. the bone of contention therefore, was while according to the plaintiffs the suit property was the joint family property, according to the contesting defendants it was a self acquired property of kondiba. i do not find anything in the pleadings to show that the property described in suit no. 602 of 1925 and the property described in the present suit are one and the same. if this is so, there was no justification in allowing the said amendment. however, the trial court allowed the amendment on the same day on which the application for amendment was made observing that it is not going to cause any predicate to the plaintiffs. it is surprising how the learned trial judge could grant this application for amendment. in the written statement the defendants have taken a specific stand that is a self acquired property and not a joint family property. the suit filed in the year 1925 was for partition of the joint family property. in the deposition all the contesting defendants stated that the present suit property is the self acquired property of their father and the deposition of all the witnesses were over on 16th november, 1976. however, on the very next day i.e. on 17th november, 1976 the said application, exh. 154 was preferred. in such circumstances, in my opinion, this application is bound to cause prejudice to the plaintiffs. in any event, when such an amendment was allowed it was mandatory on the trial judge to allow the plaintiffs to amend their pleadings in the plaint and to allow them to lead evidence, if they so desired. the trial court failed to do this which prevented the plaintiffs from raising any plea by amending their pleadings and leading evidence. therefore, the said order passed on exh. 154 is clearly illegal in the eyes of law. in the view that i have taken the said order dated 17th november, 1976, deserves to be quashed and set aside. this being the position, both the courts below were not at all justified in allowing the contesting defendants to raise the plea of res judicata. principles of res judicata are mixed questions of facts and law and, therefore, the plaintiffs ought to have been allowed to take adequate measures to put up their case after the amendment was allowed, particularly when the contesting defendants had taken up the specific plea that the suit property was never a joint family property, but a self acquired property. in the aforesaid circumstances, the decree passed by the trial court on the point of res-judicata has to be set aside.4. on a scrutiny of exh. 153 which is the decree passed in suit no. 602 of 1925 before the civil judge, junior division, karad, it is clear that the said decree was passed by the consent of all the parties in the said suit wherein the father of plaintiff nos. 1 and 3 was given 1/3rd share in the middle portion of the suit property. it is, therefore, clear that the said decree referred to at exh. 154 is a decree declaring the right of the father of plaintiffs nos. 1 and 3 in the partition. further, from the avernment in the plaint at para-5 read with the deposition of the plaintiffs and their witnesses it is clear that the plaintiffs were staying together with the defendants till the year 1965. till the year 1963 everything was going on smoothly. however, after the death of the kondi-father of the defendants the trouble started and, therefore, the plaintiffs had to leave the suit house in december, 1965. this avernment in the plaint and the deposition is not challenged in the written statement or that there was no cross-examination of the plaintiffs on this point and, therefore, this evidence has gone unchallenged. it is thus clear that in the year 1925 vide exh. 153 the father of the plaintiff nos. 1 and 3 was given 1/3rd share and thereby his right to partition and getting the said separate 1/3rd share was declared since the same had been given effect to by the parties adopting the proceedings to partition in accordance with law. it is also pertinent to note that when the said decree was passed in 1925 the plaintiff nos. 1 and 3 were not even born. at the time of the death of their father, plaintiff no. 1 was hardly 5/6 years of age and the plaintiffs were staying jointly with their uncle kondiba, the father of the contesting defendants. it appears that the plaintiff were never aware about the said suit. even the defendants were not aware of the said suit, otherwise they would have made a reference to the said suit in their written statement. the application for amendment also shows that the contesting defendants became aware of the fact about the decree of the year 1925 after the deposition of defendant no. 2 was over. it therefore, appears that neither the plaintiffs nor the defendants were aware of the said suit filed by the father of plaintiff nos. 1 and 3 and the decree obtained in the year 1925. by lapse of time the said judgment and decree has become unenforceable and, therefore, it is, competent to the parties or any of them, if they still continue to be interested in the joint property, to bring a fresh suit for a declaration of their right to partition. in my opinion, therefore, the present suit will not be barred by reason of the former decree for partition, though that decree may operate as res-judicata in respect of any claim or defence which was, or might have been, raised in the suit in which it was passed. in other words, if it is proved that the property mentioned in exh. 153 and the property mentioned in the present suit are one and the same, then in that event the defendants are not entitled to raise the plea that the said property was self acquired property in order to attract the principles of res-judicata since the plaintiffs are not barred from filing the present suit in the present circumstances. the above observations made by me are fully supported by the ratio laid down in nasrat ullah v. mujib ullah, i.l.r. 1981 all 309, which is followed by this court in 14 bom.l.r. 1198. in the said case families of varang and desai owned khoti village. in the year 1854 two members of the desai family obtained a partition decree which declared that the families of varang and desai were entitled to the said village in equal moieties. this decree was never executed. in 1904, the plaintiff, a member of the varang family, filed a suit against the other members of varang and desai families to recover his share from the village. the defendants took a stand that the suit was barred by the principles of res-judicata on account of the earlier decree obtained in 1854. it was held that the first decree was a declaratory decree and did not operate as res judicata barring the present suit. the same principle is also applicable to the facts of the present case. since the decree at exh. 153 obtained in the year 1925 being declaratory in nature, it does not operate res-judicata to the present suit which was filed in the year 1971. in view of this legal position, in my opinion, both the courts below erred in coming to the conclusion that the present suit filed by the plaintiffs was barred by the principles of res-judicata, requiring me to set aside the decisions of both the courts below.5. i have already mentioned above that the trial court rejected the plea of adverse possession of the defendants. however, the lower appellate court reversed the said finding holding that the appellants are also alternatively the owners of the suit property by adverse possession. in my opinion, the lower appellate court has lost sight of the fact that from the evidence and the pleadings it is amply clear that the plaintiffs were living in the suit property till the year 1965. the plaintiffs have also produced the voters list of gram panchayat for the years 1956 and 1961 showing that they were staying in the suit property along with the defendants. they have also produced the assessment bill which they have paid to the gram panchayat in respect of the suit property. even the defendants have nowhere disputed the said claim of the plaintiffs. the trial court has given a clear cut finding that the plaintiffs were residing along with the defendants till the year 1965 in the suit property. though the lower appellate court agreed with this finding of the trial court, still held that the contesting defendants have proved their claim of adverse possession. in my opinion, when the parties are staying jointly there is no question of claiming adverse possession by one party against the other. at the highest what can be claimed is the ouster of one party by the other party. however, in the present case there is no plea of ouster taken by the contesting defendants. on the contrary, the defendants have admitted the joint possession of the plaintiffs with the defendants have admitted the joint possession of the plaintiffs with the defendants till the year 1965. in view of the above, the finding of the lower appellate court that alternatively the contesting defendants have become owners by adverse possession is patently illegal and liable to be set aside.6. in my view that i have taken, i allow this second appeal, quash and set aside both the decisions of the courts below while directing the respondents-defendants to pay costs. the suit no. 182 of 1971 filed by the appellants-plaintiffs is decreed in terms of prayer clauses (i), (ii) and (iii) of the plaint at para 10.