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