Shivshankara & Anr. Versus H.P. Vedavyasa Char

Shivshankara & Anr.  Versus H.P. Vedavyasa Char 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.10215 of 2011
Shivshankara & Anr.
 …Appellants
Versus
H.P. Vedavyasa Char
 …Respondent
J U D G M E N T
C.T. RAVIKUMAR, J.
1. The defendant Nos. 1 and 2 in O.S. No.6456 of 1993
on the file of the Court of XIV Additional City Civil Judge,
Bangalore, filed this appeal under Article 136 of the
Constitution of India, calling in question the judgment and
decree dated 09.09.2010 passed by the Hon’ble High
Court of Karnataka at Bengaluru in RFA No.1966 of 2007.
They are the sons of the third defendant in the said suit,
who died during its pendency. They filed the stated first
appeal on being aggrieved and dissatisfied with the
judgment and decree dated 04.07.2007 in O.S. No.6456 of
1993. During the pendency of the captioned appeal, the
Page 1 of 48
second appellant died and consequently his legal heirs
were impleaded as additional appellants 2.1 to 2.4. Ergo,
in this appeal, hereafter the original first appellant and
the impleaded legal heirs of the deceased second
appellant are collectively described as ‘appellants’, unless
otherwise specifically mentioned. The respondent herein
was the plaintiff in the said suit which was filed originally
praying thus: -
“to grant a judgment for decree of permanent injunction
restraining the first and second defendants either by
themselves or through anyone on their behalf from
interfering in the plaintiffs right, title and interest over
and in the suit schedule property including creating
documents alienating the property to others and award
cost and grant such other relief (s) as deemed fit and
proper under the circumstances to the interest of justice
and equity.”
2. The appellants herein filed written statement
contending, inter alia, that the subject suit is not
maintainable, that there is no prayer for possession, that
the suit was not valued correctly and that the real owners
of the suit property was not arraigned as parties.
Subsequently, the plaintiff / respondent herein got
amended the plaint by adding paragraph 9 (a), schedules
Page 2 of 48
A, B and ‘C’ and also prayers qua them viz., prayer ‘b’.
Compositely, the suit property, which is a house bearing
No. B-91, has been described as ‘A schedule’ and out of
which a portion measuring 35’ x 40’, within the
boundaries mentioned, has been described as ‘B
schedule’. ‘C schedule’ is the portion of the premises
bearing No. B-91 as described therein. To be precise, the
prayers in the amended plaint read as under: -
"(a) a judgment and decree of perpetual injunction
against the defendants 1 to 3 directing the
defendants to restore the possession of the schedule
premises to the plaintiff and not to interfere in the
plaintiffs’ lawful possession and enjoyment of the
schedule property in any manner whatsoever.
(b) A judgment and decree against the defendants for
mandatory injunction directing the defendants to
restore the possession of the 'B' schedule property,
which is marked
'ABCD' in the annexed sketch, and there may be
decree for permanent injunction against the
defendants for 'CDEF' portion which is marked as 'C'
schedule to the plaint and there may be a decree for
the enquiry into the mesne profits with Order XVIII
Rule 12 of CPC, and also there may be a decree for
the cost of the suit, with such other relief or reliefs as
this Hon'ble Court deems fit in the circumstances of
the case.:
Page 3 of 48
3. Obviously, the defendants did not challenge the
order allowing the amendment of the plaint and also did
not file additional written statement after the
amendment.
4. The Trial Court framed the following issues based on
the pleadings on both sides:
1) Whether the suit is bad for mis-joinder or nonjoinder of necessary parties?
2) Whether the Court fee paid on the plaint is
insufficient?
3) Whether the plaintiff is entitled for possession of
the suit schedule premises?
5. Though the plaintiff/respondent herein adduced oral
and documentary evidence in support of his claims, the
defendant therein did not lead any evidence, at all. The
Trial Court, after considering the evidence and the
provisions of law applicable partly decreed the suit as per
judgment dated 04.07.2007, holding that the
plaintiff/respondent herein, is entitled to recover
possession of suit ‘B’ schedule property from the
defendants and consequently directed the defendants to
vacate and deliver suit ‘B’ schedule property to the
Page 4 of 48
plaintiff (the respondent herein) within two months from
that day. Further, it was also decreed that the plaintiff
would be entitled to recover possession of ‘B’ schedule
property from the defendants by due process of law in
case of failure on the part of the defendants to vacate
and deliver the suit ‘B’ schedule property within the
period stipulated. Furthermore, the defendants were
restrained by perpetual injunction from interfering with
the peaceful possession and enjoyment of ‘C’ schedule
property by the plaintiff.
6. As noted earlier, defendant No. 3 died during the
pendency of the suit. The surviving defendants viz., the
original defendant Nos.1 and 2 challenged the judgment
and decree dated 04.07.2007 of the trial Court before the
High Court in RFA No.1966 of 2007. In the said first
appeal, they filed an application under Order XLI Rule 27
of the Code of Civil Procedure, 1908 (for short, the CPC’)
seeking permission to produce additional evidence.
Virtually, they did not adduce any evidence whatsoever
before the trial court. The respondent herein (the plaintiff)
objected to the maintainability of the appeal as the
Page 5 of 48
original suit viz., O.S. No.6456 of 1993 was filed under
Section 6 of the Specific Relief Act, 1963. The High Court
dispelled the said objection and as per judgment dated
29.10.2007 allowed the application for production of
additional evidence and remanded the matter to the trial
Court for fresh disposal after affording an opportunity to
the defendants viz., the first appellant herein and the
deceased second appellant to lead additional evidence.
The said judgment of the High Court dated 29.10.2007
was challenged by the plaintiff/respondent herein before
this Court in SLP (Civil) No.1279 of 2008 essentially,
contending that the said suit being one filed under
Section 6 of the Specific Relief Act, the appeal filed before
the High Court being RFA No.1966 of 2007 was
incompetent. Leave was granted by this Court and the
Civil Appeal arising from the SLP viz., Civil Appeal
No.5201 of 2009 was dispose of as per judgment dated
03.09.2009 holding that O.S. No.6456 of 1993 was not
one under Section 6 of the Specific Relief Act, as the relief
sought for did not fall within its scope. While, virtually,
remanding the matter thereunder to the High Court for
Page 6 of 48
fresh disposal of the appeal the trial Court was directed to
record the evidence as directed by the High Court and to
submit a report thereon to the High Court to enable it to
dispose of the appeal within the time stipulated.
7. Before proceeding with the matter further, we think
it appropriate to consider the impact of such an order of
remand as it would certainly deconvolute consideration of
this appeal. There can be no doubt with respect to the
settled position that the Court to which the case is
remanded has to comply with the order of remand and
acting contrary to the order of remand is contrary to law.
In other words, an order of remand has to be followed in
its true spirit. True that in this case the High Court,
originally, as per judgment dated 29.10.2007 remanded
the matter to the trial Court for fresh disposal and while
doing so, it also directed the trial Court to afford
opportunity to the defendants to lead evidence. But then,
the same was modified by this Court and as per the
judgment in C.A. No.5201 of 2009 the matter was
remanded to the High Court for fresh disposal of RFA
Page 7 of 48
No.1996 of 2007 and the further direction to the trial
Court was only to record the evidence as directed by the
High Court and to forward it along with report to enable
the High Court to dispose of the appeal taking into
account the additionally recorded evidence of the
defendants as well. Thus, it is evident that the direction
to the trial Court for recording the evidence and
submitting it along with report will not efface the
evidence already on record or will not be having the effect
of setting aside of the judgment and decree passed by
the trial Court and indisputably, its purpose was only to
enable the High Court to consider RFA No.1996 of 2007
carrying challenge against the judgment and decree of
the trial Court in O.S. No.6456 of 1993, not only based on
the evidence already considered by the trial Court but
also based on the additionally recorded evidence of the
defendants based on its judgment dated 29.10.2007.
8. Now, we will proceed with the matter further. In
fact, in the meanwhile, pursuant to the order of remand
by the High Court the Trial Court took up the matter and
posted it for defendants’ evidence. The original defendant
Page 8 of 48
Nos. 1 and 2 (the first appellant herein and the deceased
second appellant) filed an application for amendment of
the written statement before the Trial Court. Besides the
same, three more applications were filed before the Trial
Court viz., (1) seeking permission to file additional written
statement; (2) seeking permission to produce 8
documents; and (3) to recall PW-1. The Trial Court allowed
only the applications for permission to produce
documents and to recall PW-1, by order dated
13.11.2007. The plaintiff/respondent herein challenged
the same before the High Court in WP No. 18328 of 2007
and consequently, the High Court stayed the said order
dated 13.11.2007. It was thereafter that Civil Appeal No.
5201 of 2009 was disposed of by this Court in the manner
mentioned above. Pursuant to this Court’s order dated
03.08.2009 the Trial Court took up the matter and posted
it for the evidence of the defendants. They filed I.A. No. 8
of 2009 seeking permission to amend the written
statement which came to be dismissed by the Trial Court.
Thereafter, the second defendant filed affidavit in lieu of
chief examination and got marked Exhibits D-1 to D-9 and
Page 9 of 48
he was also cross-examined. However, they did not
examine any other witnesses. Later, the Trial Court
transmitted the recorded evidence to the High Court
along with its report.
8.1 Pursuant to the receipt of the report and recorded
evidence the High Court took up RFA No. 1966 of 2007.
The defendants viz., the appellants therein filed three
interlocutory applications before the High Court as
hereunder:-
1) Misc. Civil Application No. 10400/2010 under
Order 41 Rule 2 read with Section 151 CPC to
raise additional grounds 16A and l6B in the
Appeal.
2) Misc. Civil Application No. 11451/2010 under
Order 41 Rule 2 read with Section 151 CPC to
raise additional grounds 16C and 16D in the
appeal.
3) Misc. Civil Application No.11452/2010 under
Order 6 Rule 17 read with 151 CPC for
amendment of written statement.
Page 10 of 48
8.2 Misc. Civil Application No. 10400/2010 to raise
additional grounds was allowed on consent. However, the
other two applications were vehemently opposed. After
hearing the parties on the main appeal as also on the
other two applications referred above, the Hon’ble High
Court formulated the following points for consideration: -
(i) “Whether the application
Misc.Civil.No.11452 /2010 filed by the
appellants under Order VI Rule 17 read with
Section 151 of the Code of Civil Procedure
seeking amendment of the written
statement to incorporate paragraphs 26(b)
to 26(e) deserves to be allowed or
rejected?”
(ii) Whether the application Misc. Civil
No.11451/2010 filed under 41 Rule 2 r/w
Section 151 of the Code of Civil Procedure
by the appellants to raise additional
grounds in this appeal as ground No. l6C &
16D is to be allowed or dismissed?”
(iii) Whether the suit as brought is maintainable
or not?
(iv) Whether the suit is bad for non-joinder of
necessary parties?
Page 11 of 48
(v) Whether the judgment and decree passed
by the XIV Addl. City Civil Court in O.S.
No.6456/1993 dated 4-7-2007 is to be
reversed, confirmed or modified?
(vi) What order?”
9. After elaborately considering the contentions, the
evidence adduced by both sides with reference to the
rival pleadings, the High Court answered the points
formulated against the appellants herein and in favour of
the respondent herein. Misc. Application Nos. 11451 of
2010 and 11452 of 2010, seeking respectively
amendment of the written statement and permission to
raise additional grounds viz., ground No.16 (c) and 16(d),
were dismissed. Point No.3 in regard to the
maintainability of the suit raised by the appellants therein
was rejected and suit was held as maintainable. On the
question whether the suit is bad for non-joinder of
necessary parties viz. point No.4, it was held in the
negative. Based on conclusions and findings on the
points formulated it was held that the respondent
herein/the plaintiff is entitled to the judgment and decree
as decreed by the Trial Court and consequently the appeal
Page 12 of 48
was dismissed with cost and the judgement and decree of
the Trial Court was confirmed. Hence, this appeal.
10. Heard, Ms. Kiran Suri, learned Senior Counsel for the
appellants and Mr. Narender Hooda, learned Senior
Counsel for the respondent.
11. The appellants have raised multiple grounds to
assail the judgment of the High Court. It is contended
inter alia that the plaintiff/the respondent herein had
failed to establish his possession over plaint ‘B’ schedule
property. That apart, it is contended that the High Court
had failed to consider the contention that the subject suit
was actually abated owing to the failure of the respondent
herein/the plaintiff to bring on record the legal
representatives of Sri Hanumaiah, the third respondent
who breathed his last during the pendency of the subject
suit. It is their further contention that Sri Rama @
Ramamurthy, the deceased second defendant had
purchased the suit property from Sriman Madhwa Sangha
which is an organisation and Sri Vittal Rao as per sale
deed executed on 05.10.2000 jointly by the latter and the
authorised representative of the former organisation and
Page 13 of 48
therefore, the High Court ought not to have confirmed the
judgment and decree of the trial Court.
12. We have already taken note of the fact that the Misc.
Civil Application carrying the prayers for amendment of
the written statement by incorporating paragraphs 26 (b)
to 26 (e) and for raising additional grounds in the appeal
were dismissed by the High Court. The points formulated
qua those prayers were jointly considered by the High
Court owing to the interlacement of the relevant facts.
The avowed purpose of the proposed amendment was
obviously to bring in the contention that the suit property
was purchased by the deceased second appellant from
Sriman Madhwa Sangha and Sri Vittal Rao as per sale
deed dated 05.10.2000.
13. Evidently, in this case the Trial Court decreed the
suit on 04.07.2007 and the original defendants 1 and 2
viz., the first appellant and the deceased second
appellant in this appeal, preferred appeal viz., RFA
No.1966 of 2007 challenging the same. In the said
appeal, an application under Order XLI Rule 27 CPC
seeking permission to adduce additional evidence was
Page 14 of 48
filed raising the contention that they were not given
opportunity to adduce evidence. The said appeal came
to be disposed of by the High Court as per judgment and
decree dated 29.10.2007, whereunder the said
application was allowed and the appellants therein/the
original defendants 1 and 2, were given permission to
lead additional evidence before the Trial Court.
Furthermore, an opportunity to cross-examine the said
defendants were given to the respondent herein/the
plaintiff. A direction was also given to the Trial Court
thereunder to dispose of the case on merits in so far as
‘B’ schedule property is concerned. It is aggrieved by
the said judgment and decree dated 29.10.2007 of the
High Court that the respondent herein/the plaintiff filed a
Civil Appeal No.5201 of 2009 arising out of SLP (C)
No.1279 of 2008 before this Court and which came to be
disposed of modifying the judgment and decree of the
High Court dated 29.10.2007 by directing the Trial Court
to record the evidence ‘as directed by the High Court’ and
transmit the records to the First Appellate Court viz., the
High Court and such other directions as mentioned
Page 15 of 48
hereinbefore. The impugned order was passed thereafter
by the High Court whereby the judgment and decree of
the Trial Court was confirmed. It is thus obvious that
there are concurrent findings against the appellants and
in favour of the respondent herein. Normally, an in-depth
consideration is not the rule in an appeal by Special Leave
filed under Article 136 of the Constitution of India when
the findings are concurrent, in the absence of exceptional
circumstances. Nonetheless, taking into account the
facts that the captioned appeal is of the year 2011 and an
interim direction to the parties to maintain the status quo
was passed as early as on 25.02.2011, we are inclined to
deal with the conclusions and also the contentions of the
parties appropriately.
14. We are not oblivious of the settled position that in
dealing with prayers for amendment of the pleadings the
Courts should avoid hyper technical approach. But at the
same time, we should keep reminded of the position that
the same cannot be granted on the mere request through
an application for amendment of the written statement,
especially at the appellate stage, where, what is called in
Page 16 of 48
question is the judgment and decree passed by the trial
Court and, in other words, after the adverse decree and
without a genuine, sustainable reason. In short, the
circumstances attending to the particular case are to be
taken into account to consider whether such a prayer is
allowable or not and no doubt, it is allowable only in
rarest of rare circumstances. In the case on hand, prayer
to amend the plaint was allowed by the Trial Court as per
order dated 01.09.1995. Accordingly, the amendment
was carried out by the plaintiff. Indisputably, thereafter,
during the span of one year or thereabouts more than
eight opportunities were given to the defendants therein
to file additional written statement, if any. Indubitably,
the materials on record would reveal that the
opportunities were not availed and no additional written
statement was filed. Thereafter, based on the pleadings,
issues were framed. Obviously, the defendants did not
adduce any evidence for the reasons best known to them.
The suit came to be decreed thereafter as mentioned
earlier. We have also discussed in detail all the
subsequent developments which ultimately culminated in
Page 17 of 48
the impugned judgment dated 09.09.2010 in RFA No.1966
of 2007, including the slight modification of the judgment
and decree of the High Court dated 29.10.2007 in terms
of the judgment of this Court in Civil Appeal No.5201 of
2009. Pursuant to the judgment in the said Civil Appeal
by this Court, in terms of the surviving directions of the
High Court in its judgment dated 09.09.2010, which
virtually merged with the judgment in C.A. No.5201 of
2009 the second defendant viz., the deceased second
appellant herein filed his affidavit in lieu of his
examination-in-chief on 16.09.2009 and got marked
Exhibits D-1 to D-9. He was then cross examined. No
other witnesses were examined on behalf of the
defendants.
15. The materials on record and the impugned judgment
passed by the High Court would reveal that the original
defendants 1 and 2, who were the appellants before the
High Court raised various contentions in support of their
prayers for amendment of the written statement as also
for permission to raise additional grounds in the appeal,
before the High Court and they were also reiterated
Page 18 of 48
before us. It is contended that the delay in seeking such
prayers by itself cannot be a reason to reject the prayers
made in the stated Misc. Civil Applications and further
that allowing such prayers would not have, in any way,
caused prejudice to the respondent herein/the respondent
therein. The chronology of events referred to
hereinbefore in this judgment were evidently weighed
with the High Court while considering the said
applications and also answering the points formulated
qua those prayers. The fact that the defendants were
given opportunities to file additional written statements
for not less than eight times after the amendment of the
plaint, in between the period 07.03.1996 till the framing
of the issues viz. 15.04.1997, that in the interlocutory
application filed in RFA No.1966 of 2007 based on which
the trial Court was directed to afford opportunity to the
defendants to adduce evidence as per judgment and
decree passed on 29.10.2007 they sought permission
only to adduce evidence, contending that they were
deprived of opportunity to adduce evidence and even at
that point of time no permission was sought for amending
Page 19 of 48
the written statement, were taken into consideration by
the High Court. Evidently, the High Court also observed
that if the amendment of written statement was allowed
at that stage, it would have necessitated framing of fresh
issues and parties were to agitate their rights as if in a de
novo trial. That apart, the High Court, inter alia
considered the following aspects as well:
That, in the written statement filed by the
defendants they did not disclose their defence and at the
same, they also did not plead therein that they are in
possession of the suit property.
That their plea, essentially attracts the principle of
‘just tertii’, which expression in Latin means ‘right of a
third party’, that the third parties, according to them, are
Sriman Madhwa Sangha, which is an organisation and Sri
Vittal Rao, that it has come in evidence that those third
parties filed a petition for evicting the respondent
herein/plaintiff as HRC No. 10020 of 1991. The fact is
that the defendants had pleaded that the ownership of
the suit property was with the said third parties and did
not claim possession specifically and it is thereafter that
they sought to bring in a plea that pursuant to an
Page 20 of 48
agreement for sale entered into between those parties
viz., the first defendant/the first appellant herein viz.,
Exhibit D-1 dated 01.03.1993 possession of the suit
schedule property was delivered to the first appellant.
But the crucial reason assigned by the High Court to
dispel them is that the first defendant/the first appellant
herein did not enter the box and the deceased second
defendant/the second defendant while being examined as
DW-1, during his chief examination itself admitted that
the respondent herein/the plaintiff was then in possession
of the suit schedule ‘A’ property (which also includes ‘B’
schedule) viz., in and vide paragraph 8 of his affidavit
filed in lieu of chief examination. That apart, it was noted
that during the cross-examination DW-1 admitted that as
on the date of Exhibit D-1, possession of the property was
not taken as Sriman Madhwa Sangha assured to secure
possession and hand it over to the first defendant. In the
circumstances thus revealed from the materials on record
and when such aspects and evidence were taken into
account by the High Court to decline permission to amend
Page 21 of 48
the written statement, we do not find any reason or
justification to interfere with it.
16. To fortify our view, we will consider certain other
aspects as well. In the wake of the above-mentioned
admission by DW-1, the attempt to bring in new plea
by amending the written statement that the second
defendant (the deceased second appellant) had
purchased the suit schedule property as per Exhibit D-2,
sale deed dated 05.10.2000 has to be seen. Since
admittedly and indisputably the suit from which the
appeal arises was one based on possessory title, the
legality of Exhibit D-2 sale deed need not be gone into in
this appeal and rightly has not been gone into by the High
Court. Evidently, the High Court declined to act upon the
same, in the light of the doctrine of lis pendens. Even if it
is taken for granted that the provisions under Section 52
of the Transfer of Property Act are not applicable as such
in the case on hand it cannot be disputed that the
principle contained in the provision is applicable in the
case on hand. It is a well-nigh settled position that
wherever TP Act is not applicable, such principle in the
Page 22 of 48
said provision of the said Act, which is based on justice,
equity and good conscience is applicable in a given
similar circumstance, like Court sale etc. Transfer of
possession pendente lite will also be transfer of property
within the meaning of Section 52 and, therefore, the
import of Section 52 of the TP Act is that if there is any
transfer of right in immovable property during the
pendency of a suit such transfer will be non est in the eye
of law if it will adversely affect the interest of the other
party to the suit in the property concerned. We may
hasten to add that the effect of Section 52 is that the
right of the successful party in the litigation in regard to
that property would not be affected by the alienation, but
it does not mean that as against the transferor the
transaction is invalid. In the decision in Thomson Press
(India) Ltd. v. Nanak Builders and Investors Private
Limited
1
, this Court held the provision of Section 52 pf
the Transfer of Property Act, 1882, did not indeed annul
the conveyance or the transfer otherwise, but to render it
subservient to the rights of the parties to a litigation.
1 (2013) 5 SCC 397
Page 23 of 48
There can be no doubt with respect to the position that
the prohibition by application of the principles of the said
doctrine would take its effect with the institution of the
suit. Be that as it may, we have no hesitation to hold that
the High Court was perfectly justified in the
circumstances, to come to the conclusion, while
considering the application for amendment of the written
statement filed at the appellate stage, that granting the
same would have, in effect, necessitated framing of fresh
issues and constrained the parties to agitate their rights
as if in a de novo trial. We referred to the aforesaid
aspects solely to drive home the point that since the
subject suit is based only on possessory title viz., on the
basis of prior possession the finding and consequential
rejection of the prayer for amendment of written
statement to bring in the plea of purchase of the property
pending the suit by the deceased second appellant
cannot be said to be ground resulting in grave injustice.
17. It is also not inappropriate in this context, to refer to
another indisputable position. The materials on record
would reveal that before passing of the judgment and
Page 24 of 48
decree the trial Court, afforded several opportunities to
the defendants to file additional written statement but
they failed not only to file additional written statement
but also failed to file any application for amendment of
the written statement before the trial court during the
pendency of original proceedings before it. It is a fact that
the defendants filed an application for amendment of the
written statement before the trial Court when the matter
was sent to the trial Court pursuant to the order of this
Court in CA No. 5201 of 2009 for recording the evidence
solely for the purpose of forwarding the same along with
a report to the High Court to enable the High Court to
dispose of RFA No. 1966 of 2007. So also, it is an
indisputable fact that even while filing an application with
prayer to grant permission for amendment of the written
statement in RFA No.1996 of 2007 the defendants had not
assigned any reasons for delay and no reasonable
explanation was given for not filing such an application
before the trial Court when the original proceedings were
pending before the trial Court. What was assigned as a
reason is that they could not file an additional written
Page 25 of 48
statement owing to mistake and by oversight. No other
reason was assigned for non-filing of application for
amendment of written statement.
18. In the contextual situation, it is relevant to refer to
the decision of this Court in Gayathri Women’s Welfare
Association v. Gowramma And Anr.
2 wherein the
observation in the decision of this Court in Pandit
Ishwardas v. State of Madhya Pradesh And Ors.
3 at
paragraph 34 which was quoted with agreement, as
under: -
"34. In Ishwardas, it has been observed as follows
(SCC P. 166, Para 5):
5. There is no impediment or bar against an
appellate court permitting amendment of
pleadings so as to enable a party to raise a
new plea. All that is necessary is that the
appellate court should observe the well-known
principles subject to which amendments of
pleadings are usually granted. Naturally one of
the circumstances which will be taken into
consideration before an amendment is granted
is the delay in making the application seeking
such amendment and, if made at the appellate
stage, the reason why it was not sought in the
trial court. If the necessary material on which
2 (2011) 2 SCC 330
3 (1979) 4 SCC 163
Page 26 of 48
the plea arising from the amendment may be
decided is already there, the amendment may
be more readily granted than otherwise. But,
there is no prohibition against an appellate
court permitting an amendment at the
appellate stage merely because the necessary
material is not already before the court.”
19. After quoting the same it was observed in Gayathri
Women’s Welfare Association’s case (supra) thus: -
“These observations clearly indicate that one of the
circumstances which will be taken into
consideration before an amendment is granted is
the delay in making the application seeking such
amendment and, if made at the appellate sage, the
reason why it was not sought in the trial court.”
20. It is to be noted that in the case on hand also as
stated earlier, there was considerable delay in seeking
amendment of the written statement or filing additional
written statement and no sustainable reason was
assigned as to why such prayers were not sought in the
trial court while the original proceedings were pending
before it. It is also relevant to note that such prayers were
also not made before the High Court when the High Court
initially disposed of RFA No. 1966 of 2007 as per
Page 27 of 48
judgment dated 29.10.2007 and also before this Court in
CA No. 5201 of 2009 directed against the said judgment.
21. In the afore-mentioned contextual situation, the
impact and effect of the order of remand passed by this
Court in CA No.5201 of 2009, assumes great relevance.
We have considered and come to a conclusion on this
aspect as can be seen from paragraph 5 (supra). If the
judgment of the High Court in RFA No.1996 of 2007 was
not modified by this Court as per judgment in CA
No.52001 of 2009 it would have had the effect of reviving
the suit in full and in such eventuality, the suit should
have been deemed to be pending. In that context, it is
apposite to refer to paragraph 16 of the decision of this
Court in United Bank of India, Calcutta v. Abhijit Tea
Co. (P) Ltd. & Ors.
4
, which reads thus: -
“16. But, it is now well settled that an order of
remand by the appellate court to the trial court which
had disposed of the suit revives the suit in full except
as to matters, if any, decided finally by the appellate
court. Once the suit is revived, it must, in the eye of
the law, be deemed to be pending — from the
beginning when it was instituted. The judgment
disposing of the suit passed by the Single Judge
4 (2000) 7 SCC 357
Page 28 of 48
which is set aside gets effaced altogether and the
continuity of the suit in the trial court is restored, as a
matter of law. The suit cannot be treated as one
freshly instituted on the date of the remand order.
Otherwise serious questions as to limitation would
arise. In fact, if any evidence was recorded before its
earlier disposal, it would be evidence in the
remanded suit and if any interlocutory orders were
passed earlier, they would revive. In the case of a
remand, it is as if the suit was never disposed of
(subject to any adjudication which has become final,
in the appellate judgment). The position could have
been different if the appeal was disposed of once and
for all and the suit was not remanded.”
22. In view of the subsequent judgment of this Court in
Civil Appeal No.5201 of 2009, dated 03.09.2009, directed
against the order of remand in RFA No.1996 of 2007, the
judgment of the High Court got merged in it. As per the
same, the scope of proceedings before the trial Court was
confined only to record the additional evidence of
defendants and to transmit the same to the High Court so
as to enable the High Court to dispose of RFA No.1996 of
2007 afresh. In short, in view of the settled position, the
trial Court could not have expanded the scope of the
proceedings before it contrary to the order of remand and
Page 29 of 48
hence, the trial Court was perfectly correct in rejecting
the application for amending the written statement. In
this context, the direction of the High Court of Madhya
Pradesh in Rukhmanand v. Deenbandh
5
, assumes
relevance. It reads thus:-
“It is settled law that when a suit is remanded for a
decision afresh with certain specific directions, the
jurisdiction of the trial Court after remand depends
upon the terms of the order of remand and the trial
Court cannot either consider matters other than
those specified in the remand order, or enter into
questions falling outside its limit. There was,
therefore, no jurisdiction in the learned trial Judge to
allow an amendment of the pleadings which was
outside the scope of the remand order.”
23. In the totality of the circumstances, especially taking
into account the relevant reasons assigned by the High
Court for disallowing the prayer for amendment of the
written statement and taking note of the delay and the
failure to offer any reason therefor and the reasons
mentioned hereinbefore we see no reason at all to hold
any perversity or illegality with the rejection of the prayer
for amendment of the written statement.
5 1971 JLJ SN 159
Page 30 of 48
24. We have noted the points of agreement in the
judgments of the courts below. On the questions as to
maintainability of the suit, whether the suit is bad for nonjoinder of necessary parties as also whether the suit
ought to have been held as abated against all the
defendants for non-substitution of all the legal heirs on
the death of the original third defendant, the courts below
returned concurrent findings against the appellants.
25. We are at a loss to understand as to how the plea
regarding the maintainability of the suit arise for
consideration. The contention of the appellants is that it
was filed under section 6 of the Specific Relief Act and
while disposing of C.A. No. 5201 of 2009 this court held
against the respondent herein/ the plaintiff that the suit is
not one under Section 6 of the Specific Relief Act. Ergo,
according to the appellants, the relief claimed for
possession by the plaintiff/the respondent herein was not
entertainable as he being a person claiming only
possessory title and the original defendant No. 2/ the
deceased appellant No. 2 being the lawful owner of the
Page 31 of 48
suit schedule property. Though the contentions appear to
be attractive and acceptable at the first blush the fact is
that they are absolutely untenable and rightly held
against them, in view of the materials on record.
26. It is true that the respondent herein/ the plaintiff
had a case that O.S. No. 6456 of 1993 filed under Section
6 of the Specific Relief Act and even after, the judgment
in C.A. No. 5201 of 2009 he seems to have attempted to
resurrect the said question. But we are entirely in
agreement with the High Court that the question whether
the suit is one under Section 6 of the Specific Relief Act is
not now available for consideration as it was held
otherwise by this court in the judgment in C.A. No. 5201
of 2009 and as such it had attained finality. On the face
of judgment in C.A. No. 5201 of 2009 the conclusion that
O.S. No. 6456 of 1993 is not one under Section 6 of the
Specific Relief Act is not revisitable. Evidently, even-after
holding thus and upon modifying the judgment of the
High Court dated 29.10.2007 this Court directed only for
fresh disposal of RFA No. 1996 of 2007 and in that regard
the trial Court was directed to record the additional
Page 32 of 48
evidence of the defendants and to transmit the same to
the High Court along with a report.
27. Indisputably, the case of the respondent herein/the
plaintiff is based on prior possession and illegal
dispossession by the respondents. During his crossexamination also PW-1 the respondent herein deposed
that he is not claiming a right of ownership in the subject
suit. Therefore, the question is how the appellants can
claim that such a suit is not maintainable. It is also a fact
that after carefully scanning the pleadings and evidence
of the defendants, the High Court, as per the impugned
judgment, held that what is raised by the defendants to
resist the case of the plaintiff / the respondent herein is
nothing but a plea that attracts the principle of “jus
tertii”, which in Latin means ‘right of a third party.’ In
fact, it is a plea against a claim of interest in property,
raised in defence that a third party has a better right than
the claimant. In this context, it is relevant to refer to
R.F.V. Heuston, Salmond on the Law of Torts 4 (17th Edn.,
1977), in which it was observed that no defendant in an
action of trespass can plead the ‘jus tertii’ that the right
Page 33 of 48
of possession outstanding in some third person.
Obviously, to buttress their contention that the suit is
maintainable, based on the contention of the defendants
that the right of possession is outstanding in some third
person that attract the principal of ‘jus tertii’ and that
they, therefore, are not justified in challenging the
maintainability of the suit the defendant relied upon the
decision of this Court in Krishna Ram Mahale (Dead),
By LRs v. Mrs. Shobha Venkat Rao
6
. The impugned
judgment would reveal that based on the exposition of
law in the aforesaid decision and taking note of the
factual position, the High Court has come to the
conclusion that the challenge made by the defendants
regarding the maintainability of the suit is untenable. In
that context, the High Court has also considered the
decision of this Court in Nair Service Society Ltd v.
Rev. Father K. C. Alexander & Ors.
7
 In the said
decision, this Court held that it could not be said that
after a period of six months is over, a suit based on prior
6 (1989) 4 SCC 131
7 AIR 1968 SC 1165
Page 34 of 48
possession alone, is not possible and it in so far as
relevant reads thus: -
“15. We agree as to a part of the reasoning but with
respect we cannot subscribe to the view that after
the period of 6 months is over a suit based on prior
possession alone, is not possible. Section 8 of the
Specific Relief Act, 1963 does not limit the kinds of
suit but only lays down that the procedure laid down
by the Code of Civil Procedure must be followed.
This is very different from saying that a suit based on
possession alone is incompetent after the expiry of
six months. Under Section 9 of the Civil Procedure
Code, it is all suits of civil nature are triable except
suits of which their cognizance would either expressly
or impliedly barred.”
28. In Nair Service Society Ltd. case (supra) this
Court quoted the following observations made in
Mustapha Saheb v. Santha Pillai
8
, with agreement: -
“…..that a party ousted by a person who has no
better right is, with reference to the person so
ousting, entitled to recover by virtue of the
possession he had held before the ouster even
though that "possession was without any title."
8 (1900) ILR 23 Mad 179
Page 35 of 48
29. In view of the aforesaid decisions and the factual
position obtained in this case, in our opinion, the
decisions sought to be relied on by the appellants are
really of no assistance.
30. It is evident that on a careful consideration of the
available pleadings of the defendants, the High Court held
that they did not disclose their defence in their written
statement and at the same time did not even contend
therein that they are in possession of the suit property.
According to us, in such circumstances, when the facts
disclose no title in either party, at the relevant time, prior
possession alone decides the right to possession of land
in the assumed character of owner against all the world
except against the rightful owner. In that context, it is
worthy to refer to the maxim ‘Possessio contra omnes
valet praeter eur cui ius sit possessionis’ (he that hath
possession hath right against all but him that hath the
very right)”.

31. In the light of the factual position obtained in this
case and legal position settled in the decisions referred
supra we are of the firm view that the High Court is
Page 36 of 48
correct in holding the question of maintainability of the
suit in the affirmative and in favour of the respondent
herein.
32. Now, we will consider the question whether the suit
ought to have been held as abated against all the
defendants as contended by the appellants for nonsubstitution and owing to the failure to implead all the
legal representatives on the death of the original third
defendant- Hanumaiah. The contention that the suit is
bad for non-joinder of necessary parties is also raised
based on the same reason. Hence, these questions are to
be considered jointly. Obviously, the Courts below
declined to uphold the said contentions of the defendants.
It is to be noted that the appellants have also raised a
contention that Sriman Madhwa Sangha which is an
organization and Sri Vittal Rao ought to have been
impleaded as parties to the suit and in view of their non
impleadment, the suit is bad for non-joinder of necessary
parties. While considering the same, the fact that the
aforesaid Sriman Madhwa Sangha and Sri Vittal Rao filed
Page 37 of 48
a petition for eviction against the respondent herein as
HRC No.10020 of 1991 wherein it was stated that the first
respondent therein (the respondent herein) is in
occupation of a portion of the schedule property and he
has illegally and unauthorizedly sub-let the other two
portions of the property to the second and third
respondents therein, namely Shri B. Ramachandra Rao
and Sh. N. Murlidhara Rao on monthly rental of Rs.400/-
and Rs.300/- respectively and has been collecting the
rents from them, rightly taken into consideration by the
High Court, requires to be borne in mind. That apart, the
fact that while being examined as DW-1 the deceased
second appellant herein had deposed that no possession
was taken after execution of Exhibit D-1 agreement for
sale dated 01.03.1993 as Sriman Madhwa Sangha had
assured to secure possession and hand over the
possession to the first appellant herein/the first
defendant. When that be the position and when the
subject suit is one based on prior possession the
appellants herein are not justified in contending that the
Page 38 of 48
suit is bad for non-joinder of Sriman Madhwa Sangha and
Sri Vittal Rao.
33. As noticed earlier, the appellants have also
contended that the suit ought to have been held as
abated against all the defendants owing to nonsubstitution of all the legal representatives of the
deceased defendant No. 3 upon his death. This contention
is bereft of any basis and merits and was rightly repelled
by the courts below. In that regard it is to be noted that
the first appellant and deceased second appellant as also
their father Hanumaiah were all arrayed in the suit as
defendants and they were jointly defending the suit. Upon
the death of original third defendant viz., Hanumaiah the
original defendants No.1 and 2, who are sons of the
original defendant No.3 fully and substantially
representing the joint interest contested the suit and,
thereafter, after suffering an adverse judgment and
decree in the suit diligently preferred the appeal before
the High Court which ultimately culminated in the
impugned judgment and decree. Even thereafter,
obviously they are diligently prosecuting the joint interest,
Page 39 of 48
even if the contention of joint interest is taken as correct,
by filing the captioned appeal.
34. In the contextual situation the following decisions
assumes relevance. The decision in Bhurey Khan v.
Yaseen Khan (Dead) By LRs. And Ors.
9 was referred
to in the impugned judgment by the High Court to reject
the aforesaid contention of the appellants therein viz.
original defendant Nos. 1 and 2. In paragraph 4 of the
decision in Bhurey Khan’s case, this Court held thus:-
 “……the estate of the deceased was thus
sufficiently represented. If the appellant would not
have filed any application to bring on record the
daughters and the widow of the deceased the
appeal would not have abated under Order 22 Rule
4 of the Code of Civil Procedure as held by this Court
in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265 :
AIR 1971 SC 742] . The position, in our opinion,
would not be worse where an application was made
for bringing on record other legal representatives
but that was dismissed for one or the other reason.
Since the estate of the deceased was represented
the appeal could not have been abated.”
9 1995 Supp. (3) SCC 331
Page 40 of 48
35. In the decision in State of Andhra Pradesh
through Principal Secretary and Ors. v. Pratap
Karan and Ors.
10
, this Court held:-
“40. In the instant case, the plaintiffs joined
together and filed the suit for rectification of the
revenue record by incorporating their names as the
owners and possessors in respect of the suit land on
the ground inter alia that after the death of their
predecessor-in-title, who was admittedly the
pattadar and khatadar, the plaintiffs succeeded the
estate as sharers being the sons of khatadar.
Indisputably, therefore, all the plaintiffs had equal
shares in the suit property left by their
predecessors. Hence, in the event of death of any of
the plaintiffs, the estate is fully and substantially
represented by the other sharers as owners of the
suit property. Therefore, by reason of nonsubstitution of the legal representative(s) of the
deceased plaintiffs, who died during the pendency
of the appeal in the High Court, entire appeal shall
not stand abated. Remaining sharers, having
definite shares in the estate of the deceased, shall
be entitled to proceed with the appeal without the
appeal having been abated. We, therefore, do not
find any reason to agree with the submission made
by the learned counsel appearing for the
appellants.”
10 (2016) 2 SCC 82
Page 41 of 48
36. We are of the considered view that the same analogy
is applicable in a case where even in the event of death of
one of the defendants, when the estate/interest was
being fully and substantially represented in the suit jointly
by the other defendants along with deceased defendant
and when they are also his legal representatives. In such
cases, by reason of non-impleadment of all other legal
heirs consequential to the death of the said defendant,
the defendants could not be heard to contend that the
suit should stand abated on account of non-substitution of
all the other legal representatives of the deceased
defendant. In this case, it is to be noted that along with
the deceased 3rd defendant the original defendant Nos. 1
and 2 were jointly defending their joint interest. Hence,
applying the ratio of the aforesaid decision and taking
into account the fact that the appellants/ the original
defendants No. 1 and 2 despite the death of original
defendant No.3 defended the suit and preferred and
prosecuted the first appeal. Upon the death of the
second appellant the joint interest is being fully and
Page 42 of 48
substantially taken forward in this proceeding as well by
the first appellant along with the substituted legal
representatives of the deceased second appellant, we do
not find any reason to disagree with the conclusions and
findings of the courts below for rejecting the contention
that suit ought to have held abated owing to the nonsubstitution of all the legal heirs of deceased third
defendant against all defendants. For the same reason,
the contention that the suit was bad for non-joinder of
necessary parties of all his legal heirs/representatives
also has to fail.
37. There is yet another reason why the contention that
suit was bad for non-joinder of necessary parties due to
failure to bring on record the legal representatives of the
deceased third defendant Sri. Hanumaiah should fail. We
have already noted the case which the defendants sought
to bring in, without taking up necessary pleadings in the
written statement filed in the suit. Relying on Exhibit D-1
it is contended that pursuant to the agreement for sale of
the suit schedule property executed in favour of the first
appellant herein/the first defendant jointly by Sriman
Page 43 of 48
Madhwa Sangha and Sri Vittal Rao its possession was
handed over to the first appellant herein. We have
already upheld its rejection by the High Court. However,
what we are taking out of the said contention is that
based on the same the appellants cannot raise a ground
of non-joinder of necessary parties, as stated above, as
the first appellant was arrayed as a party in the very suit
itself and he being the person in favour of whom the
same was allegedly executed. The contention raised
based on Exhibit D-2 sale deed was also repelled by the
High Court and we have also upheld the same. We took
note of the same again solely to stress upon the position
that the case built upon the same can in no way be the
basis for raising a contention of non-joinder of necessary
party/parties. This is because the deceased second
appellant who was shown as the vendee thereunder was
the original second defendant in the suit. For the reasons
above also the contention of non-joinder of necessary
parties must fail.
38. We have already found that the courts below are
correct in holding that the defendants did not have a case
Page 44 of 48
of ownership over the suit schedule property and such a
case sought to bring out based on Exhibit D-2 was
repelled by the High Court and we have upheld the same.
They have also failed to establish any better claim for
possession. The finding of the High Court that any volume
of evidence sans appropriate pleadings would be no avail
is the correct exposition of law. In the decision in Duggi
Veera Venkata Gopala Satyanarayana v. Sakala
Veera Raghavaiah and Anr.
11
, this Court agreed with
the observation made in the earlier decision in Hasmat
Rai & Anr. v. Raghunath Prasad
12
that any amount of
proof offered without pleadings is generally of no
relevance. In Duggi Veera Venkata Gopala
Satyanarayana (supra) with respect to the aforesaid
observations in Hasmat Rai & Anr. (supra) this Court
held, ‘we respectfully agree with the above statement of
law and reiterate the same.’ Further, it is also relevant to
refer to paragraph 85.6 of the decision in Union of India
v. Ibrahim Uddin and Anr.
13
, which reads thus:-
11 (1987) 1 SCC 254
12 (1981) 3 SCC 103
13 (2012) 8 SCC 148
Page 45 of 48
“85.6. The court cannot travel beyond the pleadings
as no party can lead the evidence on an issue/point
not raised in the pleadings and in case, such
evidence has been adduced or a finding of fact has
been recorded by the court, it is just to be ignored.
Though it may be a different case where in spite of
specific pleadings, a particular issue is not framed
and the parties having full knowledge of the issue in
controversy lead the evidence and the court records
a finding on it.”
39. In such circumstances, we have absolutely no
hesitation to hold that the original defendants failed to
raise sufficient and appropriate pleadings in the written
statement that they have better right for possession of
the suit properties. No amount of proof offered without
appropriate pleadings would have any relevance. The
Courts below have rightly relied on the evidence of PW-5
to hold forceful dispossession of the defendants from ‘B’
schedule property. Nothing is on record to uphold the
said finding.
40. After considering and answering the questions,
mentioned as above, we bestowed our anxious
consideration to find whether the impugned judgment is
Page 46 of 48
inflicted with perversity or any patent illegality warranting
interference in invocation of the power under Article 136
of the Constitution of India. The sound reasons given by
the courts below persuade us to answer it in the negative.
After carefully considering the evidence on record the Trial
Court arrived at the conclusion that the respondent
herein/the plaintiff is entitled to get back the possession
of suit schedule property from which he was dispossessed
and even after careful consideration of the additional
evidence recorded and transmitted to the High Court by
the trial court and considering all contentions and aspects
with reference to plethora of decisions the High Court
only confirmed the judgment and decree of the trial court.
As observed earlier, when the concurrent findings of the
courts below are the outcome of the rightful consideration
and appreciation of materials on record they do not call
for any interference.
41. Thus, taking into account the fact that the suit was
indisputably filed based on prior permission and illegal
dispossession we do not find any reason to place Exhibit
D-2 sale deed executed (even if by the owners) in favour
Page 47 of 48
of the deceased second appellant to displace the
concurrent findings of the courts below on the entitlement
of the respondent herein/the plaintiff for a decree as
granted by the trial court and confirmed the High Court.
In the said situation, this appeal has to fail. Consequently,
it is dismissed. In the circumstances, there will be no
order as to costs.
……………………, J.
(B.R. Gavai)
……………………, J.
 (C.T. Ravikumar)
New Delhi;
March 29, 2023.
Page 48 of 48

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