Abatement: Abatement of suit – Non-joinder of necessary parties – Non-impleadment of all other legal heirs of deceased defendant – Effect of – Held: 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, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the suit would not abate – Such suit not bad for non-joinder of necessary parties of all his legal heirs/representatives.
Amendment: Amendment of pleadings at appellate stage – Permissibility of – Held: While dealing with such prayers, the Courts should avoid hyper technical approach – Circumstances attending to the particular case are to be taken into account to allow or not to allow such prayer – It is allowable only in rarest of rare circumstances – It cannot be granted on the mere request, especially at the appellate stage – On facts, trial court allowed the amendment of the plaint, and the defendants were given multiple opportunities to file an additional written statement, which they did not avail and the suit was decreed – Subsequent developments culminated in the impugned judgment wherein the High Court declined permission to amend the written statement to the defendants – High Court observed that grant of amendment of written statement, if at that stage would have necessitated framing of fresh issues and de novo trial – Thus, no perversity or illegality with the rejection of the prayer for amendment of the written statement.
Suit: Suit for possession, based on possessory title – Facts disclosing no title in either party at the relevant time – Prior possession – Relevance of – Held: 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.
Suit: Suit for injunction and for recovery of possession by respondent against the appellants – Maintainability of – Held: On a careful consideration of the available pleadings of the appellants, the High Court held that they did not disclose their defence in their written statement and at the same time did not even contend that they are in possession of the suit property – Thus, the High Court correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent – Trial court after carefully considering the evidence on record held that the respondent is entitled to get back the possession of suit schedule property from which he was dispossessed – After careful consideration of the additional evidence recorded and transmitted to the High Court by the trial court and considering all contentions and aspects, the High Court only confirmed the judgment and decree of the trial court – Thus, 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.
Transfer of Property Act, 1882: s. 52 – Transfer of property pending suit relating thereto – Doctrine of Lis pendens – Held: Import of s. 52 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 – Wherever TP Act is not applicable, such principle in the said provision of the Act, based on justice, equity and good conscience is applicable in a given similar circumstance, like Court sale etc – On facts, the suit from which the appeal arises was one based on possessory title, the legality of sale deed need not be gone into in this appeal and rightly has not been gone into by the High Court – High Court declined to act upon the same, in the light of the doctrine of lis pendens.
Pleadings: Proof offered without pleadings – Relevance of – On facts, claim for possession/ownership over the suit property by the defendants – 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 – Finding of the High Court that any volume of evidence sans appropriate pleadings would be of no avail is correct.
Dismissing the appeal, the Court
HELD: 1.1 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. [Para 7][372-H; 373A]
1.2. In dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, the Court 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 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. 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. 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. All the subsequent developments which ultimately culminated in the impugned judgment is discussed. Evidently the High Court 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. 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 the written statement, there is no reason or justification to interfere with it. [Para 14 & 15][377-A-E; 378D-E; 379-B-E]
1.3. In the wake of the 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 the 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 the 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 said provision, 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 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. 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”. [Para 16][379-D-H; 380-A]
1.4. The prohibition by application of the principles of the doctrine of lis pendens would take its effect with the institution of the suit. There is 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. The aspects is referred 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. [Para 16][380-B-D]
1.5. 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 and also before this Court in the Civil Appeal against the said judgment. The impact and effect of the order of remand passed by this Court assumes great relevance. If the judgment of the High Court was not modified by this Court as per judgment in the Civil Appeal, 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. [Para 20, 21][382-A-D]
1.6. In view of the subsequent judgment of this Court in the said Civil Appeal directed against the order of remand in RFA, 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 the RFA afresh. The trial court could not have expanded the scope of the proceedings before it contrary to the order of remand and hence, the trial court was perfectly correct in rejecting the application for amending the written statement [Para 22][383-A-C]
1.7. In the totality of the circumstances, 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 there is no perversity or illegality with the rejection of the prayer for amendment of the written statement. On the questions as to maintainability of the suit, whether the suit is bad for non-joinder 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. [Para 23, 24][383-FH; 384-A]
1.8 It cannot be understood 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 the Civil Appeal, this Court held against the respondent/ 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 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 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. It is true that the respondent/ 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 the Civil Appeal he seems to have attempted to resurrect the said question. But this Court is 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 the Civil Appeal and as such it had attained finality. On the face of judgment in the Civil Appeal 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, this Court directed only for fresh disposal of the RFA and in that regard the trial court was directed to record the additional evidence of the defendants and to transmit the same to the High Court along with a report. [Para 25, 26][384B-G]
1.9 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. 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 valetpraeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right)”. The High Court is correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent herein. [Para 30 & 31][386-C-E, F]
1.10 As regards the abatement the question whether the suit ought to have been held as abated against all the defendants as contended by the appellants for non-substitution and owing to the failure to implead all the legal representatives on the death of the original third defendant. 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 SMS which is an organization and SVR 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. When that be the position and when the subject suit is one based on prior possession the appellants are not justified in contending that the suit is bad for non-joinder of SM Sangha and SVR. [Para 32][386-F-H; 387-A, D]
1.11 The appellants have also contended that the suit ought to have been held as abated against all the defendants owing to non-substitution 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 were all arrayed in the suit as defendants and they were jointly defending the suit. Upon the death of original third defendant, 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, even if the contention of joint interest is taken as correct, by filing the captioned appeal. [Para 33][387-E-H]
1.12 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. 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 substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, there is no 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 non-substitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the submission that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also fails. [Para 36][389-A-E]
1.13 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 should fail. 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/ the first defendant jointly by SMS and SVR its possession was handed over to the first appellant. Its rejection by the High Court is upheld. However, what is being taken out of the said contention is that based on the same the appellants cannot raise a ground of non-joinder of necessary parties, 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 is upheld. The note is taken 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 the contention of nonjoinder of necessary parties fails. [Para 37][389-E-H; 390-A-B]
1.14 The courts below are correct in holding that the defendants did not have a case of ownership over the suit schedule property and such a case sought to bring out based on Exhibit D2 was repelled by the High Court and the same is upheld. 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. [Para 38][389-B-D]
1.15 In such circumstances, there is 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. As regard the issue whether the impugned judgment is 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 to answer it in the negative. After carefully considering the evidence on record the trial court arrived at the conclusion that the respondent/ 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 the High Court only confirmed the judgment and decree of the trial court. 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. Taking into account the fact that the suit was indisputably filed based on prior permission and illegal dispossession there is no reason to place sale deed executed (even if by the owners) in favour of the deceased second appellant to displace the concurrent findings of the courts below on the entitlement of the respondent/the plaintiff for a decree as granted by the trial court and confirmed by the High Court. [Para 39, 40, 41][390-G; 391-A-F]
Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Limited (2013) 5 SCC 397 : [2013] 2 SCR 74; Gayathri Women’s Welfare Association v. Gowramma And Anr. (2011) 2 SCC 330 : [2011] 2 SCR 47; Pandit Ishwardas v. State of Madhya Pradesh And Ors. (1979) 4 SCC 163 : [1979] 2 SCR 424; United Bank of India, Calcutta v. Abhijit Tea Co. (P) Ltd. & Ors. (2000) 7 SCC 357 : [2000] 3 Suppl. SCR 153; Rukhmanand v. Deenbandh 1971 JLJ SN 159; Krishna Ram Mahale (Dead), By LRs v. Mrs. Shobha Venkat Rao (1989) 4 SCC 131; Nair Service Society Ltd v. Rev. Father K. C. Alexander & Ors. AIR 1968 SC 1165 : [1968] SCR 163; Mustapha Saheb v. Santha Pillai (1900) ILR 23 Mad 179; Bhurey Khan v. Yaseen Khan (Dead) By LRs. And Ors. (1995) 3 Supp. SCC 331; State of Andhra Pradesh through Principal Secretary and Ors. v. Pratap Karan and Ors. (2016) 2 SCC 82 : [2015]
12 SCR 702; Duggi Veera Venkata Gopala
Satyanarayana v. Sakala Veera Raghavaiah and Anr. (1987) 1 SCC 254 : [1987] 1 SCR 674; Hasmat Rai & Anr. v. Raghunath Prasad (1981) 3 SCC 103 : [1981] 3 SCR 605; Union of India v. Ibrahim Uddin and Anr. (2012) 8 SCC 148 : [2012] 8 SCR 35 – referred to.
R.F.V. Heuston, Salmond on the Law of Torts 4 (17th Edn., 1977) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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