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Mst. Satya Sahuani Vs. Chudamani Sahu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 50 of 1981
Judge
Reported inAIR1985Ori131; 58(1984)CLT287
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantMst. Satya Sahuani
RespondentChudamani Sahu and anr.
Appellant AdvocateD.P. Sahoo, Adv.
Respondent AdvocateJ.P. Mishra, Adv.
DispositionRevision dismissed
Cases ReferredSurendra Biswal v. Bharat Chandra Jena
Excerpt:
.....there, it would be impossible on the part of the trial court to effectively and finally adjudicate upon the rights of the parties in respect of schedule 'a' land of the plaint......the petitioner and her deceased sister who was the mother pf opposite party no. 2 defendant. the suit land thereafter came to be jointly possessed by the petitioner and her sister and after her death by opposite party no. 2. in 1976 opposite party no. 2 executed a plain paper sale deed without passing of consideration in favour of opposite party no. 1-defendant in respect of the suit land whereafter, opposite party no. 1 demolished the cow-shed and in its place hurriedly constructed a house. there had been no partition of the suit property between the petitioner and opposite party no. 2. consequent upon the alleged sale and danger to her share in the suit property the petitioner instituted a suit (t. s. 46 of 1977) with the following prayers :(i) for a decree under section 22 of the.....
Judgment:
ORDER

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Subordinate Judge, Baragarh on 18-11-80 in T.S. No. 46 of 1977 allowing amendment of the written statement. The plaintiff is the petitioner.

2. The facts in brief may be stated. Trilochan was the owner in possession of Schedule 'A' land of the plaint which consisted of a homestead in village Taipadar with a length of 27 cubits from east to west, 20 cubits from, north to south on the eastern side and 18 cubits on the western side. There was a dwelling house and a cow-shed thereon. After death of Trilochan, his widow Mst. Sanatara remained in occupation thereof. She died in 1971 leaving the petitioner and her deceased sister who was the mother pf opposite party No. 2 defendant. The suit land thereafter came to be jointly possessed by the petitioner and her sister and after her death by opposite party No. 2. In 1976 opposite party No. 2 executed a plain paper sale deed without passing of consideration in favour of opposite party No. 1-defendant in respect of the suit land whereafter, opposite party No. 1 demolished the cow-shed and in its place hurriedly constructed a house. There had been no partition of the suit property between the petitioner and opposite party No. 2. Consequent upon the alleged sale and danger to her share in the suit property the petitioner instituted a suit (T. S. 46 of 1977) with the following prayers :

(i) For a decree under Section 22 of the Hindu Succession Act directing the suit land to be sold by opposite party No. 2 in favour of the petitioner according to the market price to be fixed by the Court or,

(ii) In the alternative, for issuance of an order of permanent injunction restraining opposite party No. 1 from continuing in unauthorised possession of the suit land.

3. Opposite party No. 1 raised the plea in the written statement that Trilochan was the owner of a portion of Schedule 'A' land of the plaint. The portion in his possession was 9 cubits on the northern side adjoining the road, 18 cubits on the southern side adjoining the house of Kanhei Misra and 20 cubits on the eastern side adjoining the road, After his death Mst. Sanatara succeeded and was in possession of the aforesaid portion out of Schedule 'A' land. When she died, opposite party No. 2remained in exclusive possession thereof. On 15-3-1976 he sold the same in favour of opposite party No. 1 for a sum of Rs. 3000/-accompanied by delivery of possession. In evidence of the transaction, he executed an unregistered sale deed and promised to execute and register a sale deed in his favour. Since the sale, opposite party No. 1 is in possession of the portion of Schedule 'A' land described above.

4. During pendency of the suit opposite party No. 1 filed a petition under Order 6 Rule 17 C.P.C. seking to amend the written statement by introducing the following paragraph :

'5(a). That the remaining portion of the 'A' schedule property was owned by Mukunda Padhan. Indu and Sumitra the daughters of the said Mukunda divided their paternal property in which Indu got to her share the aforesaid remaining portion of the 'A' schedule property and was in possession of the same. On 2-4-68 Indu Padhan sold the said property to Durbadal Patra the defdt. No. 2 by executing an unregistered deed of sale in his favour and placed him in possession thereof. The defdt. No. 2 has sold the same to defdt. No. 1 on 12-5-75 for Rs. 2600/- by executing an unregistered deed of sale in his favour and delivered him the possession of the said property. Since then the defdt. No. 1 has been possessing the same having constructed house thereon.'

The learned Subordinate Judge by the impugned order allowed the amendment.

5. Learned counsel appearing for the petitioner raise two contentions, namely, (i) by effecting amendment of the written statement the admission already made by opposite party No. 1 therein to the effect that Trilochan was the sole owner in possession of the suit land was permitted to be withdrawn which, according to law, was not permissible and (ii) the amendment completely changed the defence of opposite party No. 1 raised in his written statement. Learned counsel appearing for the opposite parties, on the other hand, urged that the amendment was elucidatory in nature by bringing in some more relevant facts necessary for effective adjudication of rights of parties in respect of the suit land so as to avoid multiplicity of litigations. The contentions require careful examination.

6. According to the plaint averment, Trilochan was the exclusive owner inpossession of Schedule 'A' land of the plaint. This fact was not admitted by opposite party No. 1 in the written statement, in so far as, he made the following averment in para 5, thereof.

'5. That Trilochan Padhan owned and possessed only a portion out of the 'A' schedule property. The northern boundary of thatportion adjoining the road is 9 cubits, the southern boundary adjoining the house of Kanhei Misra is 18 cubits and the eastern boundary adjoining the road is 20 cubits. It is this portion only which was being possessed by Santara by way of succession to her husband late Trilochan Padhan.'

It will appear from the aforesaid averment that opposite party No. 1 made an admission that Trilochan was the owner in possession of a portion of Schedule 'A' land and not the whole of it. Para 5(a) of the written statement introduced by way of amendment will show that the balance portion out of Schedule 'A' land was owned and possessed by one Mukunda, whose daughters, Indu and Sumitra being the successors-in-interest effected a partition in which the remaining portion of the suit land fell to the share of Indu who transferred the same in favour of opposite party No. 2 by an unregistered sale deed and in his turn, opposite party No. 2 sold the said remaining portion in favour of opposite party No. 1 defendant on 12-5-75 for a consideration of Rs. 2600/- and executed an unregistered sale deed. It would thus appear from the above facts that opposite party No. 1 did not make an admission in the written statement that Trilochan was the owner in possession of the entire suit land. So the question of withdrawing the alleged admission after the amendment did not at all arise. Therefore, the first contention of the learned counsel for the petitioner is untenable.

7. In para 5 of the written statement (quoted above) opposite party No. 1 stated that Trilochan was the owner in possession of only a portion out of Schedule 'A' land of the plaint. In order to elucidate as to who was the owner in possession of the remaining portion and as to who subsequently owned and possessed the same, the petition for amendment was filed. When the petitioner by filing the suit wanted adjudication with regard to the rights of the parties in respect of the entire Schedule 'A' land, details of facts suchas those stated in para 5(a) of the written statement of opposite party No. 1 after amendment were necessary. If such details of facts were not there, it would be impossible on the part of the trial court to effectively and finally adjudicate upon the rights of the parties in respect of Schedule 'A' land of the plaint. Further if the facts stated in para 5(a) would have been incorporated while filing the written statement by opposite party No. 1, the petitioner could not have legally objected to the same. In the background of the aforesaid averments and facts, it cannot but be said that the amendment was elucidatory and clarificatory with an object to avoid multiplicity of suits. Further, the amendment did not give rise to inconsistent pleas in the written statement nor was the nature of the defence changed in any manner. It was held in (1976) 42 Cut LT 706, Daitari Kar v. Basudev Pati that the Court has to see whether it is necessary in the interest of justice and for administration of proper justice to the dispute between the parties the amendment should be allowed or not. The court has further to see that the parties should not be driven to another suit and multiplicity of suits is to be avoided. In (1979) 47 Cut LT 167, Surendra Biswal v. Bharat Chandra Jena it was held that amendment of the written statement by way of abundant caution and with an objective to elucidate and expand the pre-existing facts already pleaded in the original written statement could be allowed according to law. I am in respectful agreement with the views expressed in the aforesaid decisions.

8. In the ultimate analysis, the amendment of the written statement by addition of para 5(a) did not take away the effect of any admission said to have been made in the original written statement by opposite party No. 1, the amendment did not give rise an inconsistent plea by changing the character of the defence raised by him, and as a matter of fact, it was elucidatory and clarificatory in nature with the object of adjudication of the rights of the parties and avoidance of multiplicity of suits. Therefore, the amendment is unobjectionable. The trial court did not exceed its jurisdiction by allowing the amendment. So the impugned order is unassailable.

9. I do not find any merit in the Civil Revision which is accordingly dismissed. Parties to bear their own costs.


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