Shikharchand Jain Vs. Digamber Jain
Praband Karini Sabha & Ors  INSC 9 (11 January 1974)
CITATION: 1974 AIR 1174 1974 SCC (2) 215
R 1975 SC 123 (22)
Civil Procedure Code--Amendment of the
written statement during pendency of the appeal--Whether Appellate Court can
order amendment of the written statement in view of change of circumstances not
contemplated at the time of institution of the suit.
The respondent no. 1, Digamber Jain Praband
Karini Sabha instituted a suit against the appellant for recovery of possession
of certain agricultural land Respondent Smt.
Rajrani was the malik maqbooza of the land
who, in 1954, gifted the land by a registered gift deed in favour of respondent
no. 1. The third and fourth respondents were cultivating the land. Respondent
no. 1 sued them for possession but they pleaded that the appellant had sub-let
the land to them. The suit was decreed. Their appeals were dismissed. The
appellant thereafter had filed a suit against respondent no.1 for a declaration
that the gift made by the 5th respondent in favour of the 1st respondent was
void; but the suit was dismissed for default.
The suit from which the present appeal arose,
was filed and all the defendants except Smt. Rajrani filed their written
statement. The trial court decreed the suit in favour of respondent no.1. On
appeal,the first appellate court allowed the appeal but on a second appeal, the
High Court reversed the decree of the appellate court and restored the decree
of the trial court and hence the present appeal before this Court.
Remanding the case to the trial court,
HELD : (1) In his written statement, the
appellant had admitted Smt. Rajrani's ownership of the land. But he had pleaded
that he became the owner of the land by adverse possession for more than 12
years from 1937. The khasra entries from 1937-38 to 1941-42 and 1943-44 to
1951-52 are all in favour of Smt. Rajrani. Further, assuming that the appellants'
adverse possession started in 1937 and continued till 1949, he became the owner
of the land in dispute in 1950. Nevertheless, he did not move the appropriate
revenue authority to correct the entries in the. record of rights.
Again one of his own witnesses, has admitted
that the appellant had been paying rent of the disputed land on behalf of Smt.
Rajrani till 1958-59. Had he became an owner by adverse possession in 1950, he
would never have paid rent on behalf of Smt. Rajrani.
Maharaja Srischandra Nandy v. Baijnath Jugal
Kishore 62, Indian Appeals 40; Deity Pattabhiramaswamy v. S. Hanymayya, A.I.R.
1959 S. C. 57 and H. R. Ramachandran Ayyar v.
Ramalingam Chettiar,  3 S.C.R. 604,
(2) During pendency of the appeal, as Smt.
Rajrani died in 1968, the appellant filed an application for substitution of
himself as her legal representative in place of Smt.
Rajram. No order has yet been made on this
Now he has made another application in the
course of hearing seeking amendment of his written statement in view of the
changed circumstances to the effect that as the limited owner Smt. Rajrani
died, he is entitled to the disputed property as the sole reversioner and
respondent no. 1 and no right in the said lands.
It is, therefore open to the Court, including
a court of appeal to take notice of events which have happened after the
institution of the suit and afford relief to the parties.
Rai Charon Mandal and another v. Biswanath
Mandal and others A.I.R. 1915 Cal.103, referred to.
(3) Under the circumstances, since the death
of Smt. Rajrani creates a fresh [,cause of action to the appellant who claims
to be her next reversioner, it will be just ,and proper to allow the amendment.
Therefore, the amendment is allowed and 102 the case will go back to the trial
court and the trial court will give reasonable time to the respondent to file a
reply to the amended written statement. The trial Court will then record its
findings and the new plea raised by the appellant and shall forward them to
this Court through High Court within 4 months of the receipts of the record.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1598 of 1967.
Appeal by special leave from the judgment and
decree dated October 17, 1966 of the Madhya Pradesh High Court in Second Appeal
No. 521 of 1962.
V. M. Tarkunde, S. L. Jain and M. S. Gupta,
for the appellant.
M. C. Chagla, S. K. Bagga, S. Bagga, Yash
Bagga and Rani Arora, for the respondents.
The Judgment of the Court was delivered by
DWIVEDI, J.-It is the defendant's appeal. The plaintiff Digamber Jain Praband
Karini Sabha, Panagar, instituted a suit against the defendant Shikharchand
Jain for recovery of possession over certain agricultural lands situate in
mauza Imlai. Smt. Rajrani, fifth defendant (now dead) was the proprietor of a
Patti in mauza Imlai. The land in dispute fell in that Patti. It was her sir.
The area of the land is 12 .86 acres. Smt. Rajrani became malik maqbooza of the
land on the abolition of the proprietary rights in the State in 1951. On January
18, 1954. she gifted the land by a registered gift deed in favour of the
plaintiff (which is registered under the Madhya Pradesh Public Trust Act,
Ram Das and Ballu, the third and fourth
defendants, were cultivating the land. The plaintiff instituted a suit against
them on July 15, 1954. In the said suit they pleaded that Shikharchand had
sub-let the land to them. The suit was decreed. Their appeals were dismissed on
May 4, 1957. Shikharchand also instituted a suit on November 3, 1955 against the
plaintiff and Smt. Rajrani for a declaration that the gift made by her would be
void after her death. We are told that the suit has been dismissed in default.
As the aforesaid defendants are disputing the plaintiff's title, the suit was
instituted. All the defendants except Smt. Rajrani filed a joint written
statement. They denied the plaintiff's title to the land.
Smt. Rajrani held a limited estate in the
land and the gift deed would be ineffective after her death. She could not gift
the entire property. Shikharchand has been in possession over the land since
1937 as an owner thereof and has acquired rights of an owner by adverse
possession for more than 12 year,. Smt. Rajrani filed a separate written
statement. She has supported the case of the plaintiff.
The trial court framed a number of issues. Of
them, only two now survive for consideration. They are issues Nos. 1 and 4.
Issue No. 1 is :
"1(a) Whether the defendant No. 5 Smt.
Rajrani was the owner of the suit fields till
18-1-1954 ? (b) whether she was also in possession of the suit fields till
4. (a) whether defendant No. 1 (Shikharchand)
has been in exclusive, continuous and uninterrupted possession of the suit 103
fields since 1937 adversely to the defendant No. 5 and the plaintiff ? "
(b) whether, therefore, the defendant No. 1 has perfected Ms title by adverse
possession ? Issue No. 1 was answered in favour of the plaintiff. Issue No. 4
was answered against Shikharchand. The trial court held that he was in
possession for and on behalf of Smt.
Rajrani and not in his own right. The trial
court granted a decree for possession to the plaintiff.
Defendants Nos. 1 to 4 went in appeal. The
first appellate court allowed the appeal and set aside the decree of the trial
court and dismissed the suit. The plaintiff then filed a second appeal in the
High Court of Madhya Pradesh. The High Court has reversed the decree of the
first appellate court and restored that of the trial court. Hence this appeal
The first appellate court has held that
Shikharchand was in possession over the disputed land since 1937 and has become
the owner thereof by adverse possession before Smt. Rajrani transferred the
land to the plaintiff. Sri Tarkunde, counsel for Shikharchand, says that it is
a finding of fact and that accordingly the High Court could not interfere with
it in second appeal. It appears that the High Court was aware that it was
interfering with a finding of fact in a second appeals. So the High Court has
"(Defendants 1 to 4) clearly failed to
establish by positive evidence the adverse possession of (Shikharchand) for
more than twelve years at any point of time so as to rebut the statutory
presumption of possession arising in favour of the appellant and its
predecessor-in-title Smt. Rajrani.
Therefore, with due respect to the learned
I might say that the question has been
absolutely misconceived him and he has not approached the question in a proper
and legal manner with a view to apply the law to the facts found established
from the record. In this view, the decree passed by the first appellate court
cannot be sustained either on facts or law." So according to the High
Court the finding recorded by the first appellate court was arrived at by
overlooking the statutory presumption of possession in favour of the plaintiff
and Smt. Rajrani and his approach to the issue before him was not proper and
legal. In other words, the High Court intervened under cl. (c) of s. 100(1) of
the Code of Civil Procedure. According to the High Court, the finding of the
first appellate court suffered from a "substantial error or defect in the
procedure provided.... by any other law for the time being in force, which may
possibly have produced error or defect in the decision of the case upon the
merits." It is now to be seen whether the first appellate court's finding
really falls within the grip of s. 100(1)(c) of the Code of Civil Procedure. In
his written statement Shikharchand has admitted Smt. Rajrani's ownership of the
land. But he has pleaded that he has become the owner of the land on account of
adverse possession for more than 12 years from 1937. The burden of proving the
acquisition of ownership by adverse possession lay on him. The Khasra 104
entries from 1937-38 to 1941-42 and 1943-44 to 1951-52 are all in favour of
Smt. Rajrani. They show that she was in possession over the land during those
years. Khasra is a record of right according to s. 45(2) of the Central
Provinces Land Revenue Act, 1917. Section 80(3) of that Act provides that
entries in a record of right shall be presumed to be correct unless the
contrary is shown. This provision raises a presumption of correctness of the
aforesaid Khasra entries. The burden of proving adverse possession accordingly
was a heavy one. The judgment of the first appellate court shows that it has
not kept in mind this aspect while examining the evidence. In the first step,
it has proceeded to assess the evidence adduced by Shikharchand. After
discussing that evidence, it has recorded a finding that he was in possession.
Thereafter, in the second step, it has proceeded to take the view that no
reliance can be placed on Khasra entries. It has summed up the discussion thus
"(A) 11 these witnesses (of Shikharchand) have stated that the possession
of the fields was with Shikharchand. Their statements are further supported by
documentary evidence and, therefore, there is no room for any doubt that the
possession was not with Shikharchand. It is true that in Patwari papers Mst. Rajrani's
name appears and that the dues were deposited on behalf of Mst. Rajrani. But in
my opinion the entries in Khasra and the fact that the receipts were issued in
the name of Mst.
Rajrani would not by themselves establish the
fact of possession.It is settled law that entries in Khasra have only
presumptive value, and it is difficult to conclude from these entries that the
possession was with Mst. Rajrani. The falsity of the entries in Khasra is clear
from the fact that from 1937 to 1947 the name of Mst. Rajrani appeared in the
khasra Panchsala and yet Mst. Rajrani's admission in D/1 shows that she was not
in possession. This fact is enough to show that no reliance could be placed on
the Khasra entries." As already pointed out, this passage shows that the
first appellate court proceeded in the reverse order. Moreover, the Khasra
entries have been discarded solely for the reason that Smt. Rajrani has
admitted in Ex. D/1 that she was not in possession. But Ex. D/1 has been
entirely misunderstood by the first appellate court. Exhibit D/1 is a copy of
the plaint filed by Smt. Rajrani in a suit for profits against Shikharchand.
Shikharchand was Lambardar of the muhal in which the Patti belonging to Smt.
Rajrani was situate. In the first paragraph of her plaint she has mentioned
this fact. Thereafter she went on to say that she was entitled "to get her
share of profits from the defendant." In paragraph 2 she has said :
"That the defendant is in possession of all the sir and khudkasht land of
her full ...... patti of the village...... that as the defendant did not render
an account, nor paid anything in spite of repeated demands and a notice by the
plaintiff, he is liable to pay interest by way of damages at the rate of /8/-
per cent per month" and the amount detailed in the schedule of accounts
attached to the plaint. In the schedule she has shown.the amount of rent
recovered by Shikharchand from the tenants. She has also shown the estimated
income from sir and 105 khudkasht land belonging to her. After making certain
deductions, a total amount of Rs. 318/7/- was claimed from Shikharchand. The
suit was filed in July 1942. The suit for profits related to a period between
1938-39 and 1940-41.
We do not think that paragraph 2 of the
plaint can be read in the manner it has been read by the first appellate court.
It was a suit for profits by a co-sharer
against the Lambardar. It was not a suit for mesne profits which an owner of
land may claim from a trespasser. It wag really a suit for accounts from the
Lambardar. So it is not possible to spell out from paragraph 2 an admission
from Smt. Rajrani that Shikharchand was in adverse possession over her sir
land. Further Shikharchand did not file a copy of his own written statement,
nor a copy of the judgment in the suit. If he had denied his possession over
her sir land, the suit for profits from sir land would have been dismissed. If
he had pleaded adverse possession, over her sir, then also her suit for profits
from sir land would have been dismissed. If, on the other hand, the suit for
profits of sir land were decreed, it would follow that Shikharchand was held to
be in permissive possession and not in adverse possession. In the result, we
are of opinion that the first appellate court was wholly wrong in discarding
the Khasra entries on the solitary statement in paragraph 2 of her plaint. The
High Court could, therefore, interfere with its finding under s. 100(1)(c).
The High Court has considered afresh the
entire evidence on record and has held that Shikharchand has failed to
establish by positive evidence his adverse possession for more than 12 years.
The appellant could not show to us that the finding is not sustainable on the
evidence on record.
It is not necessary for us to reappraise that
evidence again, but we may point out two circumstances which heavily tell
against the appellant. Assuming that his adverse possession started in 1937 and
continued till 1949, he became the owner of the land in dispute in 1950.
Nevertheless he did not move the appropriate
revenue authority for the correction of the entries in the record of rights. He
did not get the name of Smt. Rajrani expunged from the record and his name
entered therein. Again, Beni Ram, one of his witnesses, has admitted that
Shikharchand had been paying rent of the sir land of Smt. Rajrani on behalf of
Smt. Rajrani until 1958-59. Had he become an owner by adverse possession in
1950, he would never have paid rent on behalf of Smt. Rajrani.
Counsel for the appellant has referred us to
Maharaja Srischandra Nandy v. Baijnath Jugal Kishore,(1) Deity
Pattabhiramaswamy v. S. Hanymayya(2) and R. Ramachandran Ayyar v. Ramalingam
Chettiar.(3) But none of these cases help the appellant on the facts of this
case. In the last case this Court said : "(1)f in dealing with a question
of fact the first appellate court has placed the onus on a wrong party and its
finding of fact is the result, substantially of this wrong approach, that may
be regarded as a defect in procedure under s. 100(1)(c)." The same view
has been expressed in Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd.(4) In
this case the High Court has upset a finding (1) 62 Indian Appeals 40.
(2) A. 1. R. 1959 S.C. 57.
(3)  3 S. C. R. 604.
(4)  1 S. C. R. 270.
106 of fact recorded by the lower appellate
court inter alia on the ground that the burden of proof was wrongly placed on
the plaintiff. Shah J., while affirming the judgment of the High Court, said:
"A decision of the first appellate court reached after placing the onus
wrongly .... is not conclusive and a second appeal lies to the High Court
against that decision." In Jai Krishna v. Babu. (1) it was held that
possession of a nonowner after partition is adverse. No exception may be taken
to this preposition. But we fail to understand how this case will assist the
We now pass on to another aspect of the case.
During pendency of this appeal Smt. Rajrani died on December 5, 1965. The
appellant first filed C.M.P. No. 1377 of 1969 for his substitution in place of
Smt. Rajrani, the fifth respondent, as her legal representative. No order has
yet been made on this application. Now he has made another application in the
course of hearing. By this application he seeks to amend his written statement.
He wants to make this addition to the written statement :
"12(a) that the gift deed dated
18-1-1954 was executed by Smt. Rajrani who was a, limited owner having a
widow's estate on the date of the execution of the gift deed. Assuming though
not admitting the said gift deed was valid it is submitted that the above gift
could at most enure for the life of the defendant No. 5. The plaintiff cannot
have any rights in the suit lands after the death of Smt. Rajrani and the
defendant as the sole surviving reversioner becomes the owner of the lands and
resist the claim of the plaintiff.
(b) that the genealogy of the family is as
under Bihari Lal -------------------------------------------------------------
Dakhandji Bhagwandasji Shrichandji (diedissueless) | | ---------------------- |
Nathulalji (died issueless, husband of defandant, No. 2)
---------------------------------------- | | | | Monoolalji Kapoorchandji (died
issueless) | Shikharchand (plaintiff) .lm15 "12(c) that the deceased Smt.
Rajrani could not transfer the suit property even for the religious and charitable
pur- poses as it was the entire property she had and such a transfer is not
binding on the defendant after her death." (1) A.I.R. 1933 Nagpur 112.
107 He also prays for the renumbering of
present paragraph 12 as paragraph 13 of the written statement. Sri Tarkunde has
submitted that if the assertions made in the new paragraph 12 are accepted by
the Court, the respondent's suit will have to be dismissed. It is also, said
that the new situation arising on the death of Smt. Rajrani during.
pendency of the appeal can be considered by
the Court in order to, mould the decree in the suit out of which this appeal
has arisen. In our view, Mr. Tarkunde, is right in this submission. Ordinarily,
a suit is tried in all its stages on the cause of action as it existed on the
date of its institution. But it is open to a Court (including a court of
appeal) to take notice of events which have happened after the institution of
the suit and afford relief to the parties in the changed circumstances where it
is shown that the relief claimed originally has (1) by reason of subsequent
change of circumstances become inappropriate, or (2) where it is necessary to
take notice of the changed circumstances in order to shorten the litigation, or
(3) to do complete justice between the parties (See Rai Charan Mandal and
another v.. Biswanath Mandal and others)(1).
Sri Chagla, counsel for the respondent, has
submitted that the application for amendment of the written statement should
not be allowed. It is said that the appellant has alleged in his written
statement that Smt. Rajrani could not transfer the disputed land as she was a
limited owner having a widow's estate. The trial court had framed specific
issue on this aspect and recorded a finding against the appellant. The trial
court said : "(Smt. Rajrani) is a jain widow, and therefore she is
competent to transfer the suit lands for religious and charitable
purposes." The trial court decreed the suit. The appellant filed an
appeal. The appeal was allowed and the decree of the trial court was set aside.
The respondent then filed a second appeal in the High Court. As already stated,
the High Court set aside the decree of the, first appellate court and restored
the decree of the trial court. It is said by Sri Chagla that as the appellant
did not challenge the validity of the gift either in the first appellate court
or in the High Court, he should not be allowed to challenge it now by an
amendment of his written statement. We find it difficult to accept this
submission of Sri Chagla. Even if the assertions made in the application for
amendment of the written statement are found to be true, the appellant could
not have non-suited the respondent during. The life time of Smt. Rajrani. The
gift was valid during her life time. Her death gives a fresh cause of action to
the appellant who claims to be her next reversioner. It appears to us that it
will be just and proper to allow the amendment sought for. it will shorten
Sri Chagla has also pointed out that the
respondent has acquired new rights under the Land reform measures passed by the
Madhya Pradesh Legislature. It will be open to the respondent to file a reply
to the amendment when the case goes back to the trial court and raise any plea
which according to it is likely to defeat the appellant's new, claim.
(1) A.I.R. 1915 Cal. 103 108 So we allow the
application for amendment of the written statement on payment of Rs. 200 as
-costs to the respondent.
The case will now go back to the trial court.
The trial court will allow reasonable time to the respondent to file a reply to
the amended written statement. Thereafter the trial court will record evidence
on the new plea raised by the appellant by his amendment and by the respondent
in its reply. The trial court will then record its findings and forward them to
this Court through the High Court. The trial court should send the findings
within four months of the receipt of the record from this Court. C.M.P. No.
1377 of 1969 is dismissed as infructuous on receipt of findings, the appeal
will be listed for hearing before the Court.