Shikharchand Jain v. Digamber Jain Praband Karini Sabha, (SC) BS106933
SUPREME COURT OF INDIA

Before:- P. Jaganmohan Reddy, S.N. Dwivedi and P.K. Goswami, JJ.

Civil Appeal No. 1598 of 1967. D/d. 11.1.1974.

Shikharchand Jain - Appellant

Versus

Digamber Jain Praband Karini Sabha and others - Respondents

A. Civil Procedure Code, 1908, Sections 100(1)(c) and 151 and Order 6, Rule 17 - Evidence Act, 1872, Section 35 - Central Provinces Land Revenue Act, 1917, Sections 45 and 80 - Appeal - First appellate Court discarding khasra entries on solitary statement - Khasra being recorded of right, provides that entries in a record of rights, to be presumed correct unless contrary is shown - Burden of proving adverse possession lying on person alleging so - Second appeal - Interference by High Court with its finding under Section 100(1)(c) of the Act.

[Paras 5 and 6]

B. Civil Procedure Code, 1908, Order 6, Rule 17 - Amendment of written statement in appeal - Institution of suit for recovery of possession of lands - Widow making gift therefor dying - Defendant seeking to amend written statement during pendency of second appeal - Amendment needed due to events taking place after institution of suit - Held, it would be just and proper to allow amendment.

[Para 11]

Cases Referred :-

Srischandra Nandy v. Baijnath Jugal: Kishore 62 Ind App 40.

Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 Supreme Court 57.

R. Ramachandran Ayyar v. Ramalingam Chettiar (1963) 3 SCR 604.

Ladli Prasad Jaiswal, v. Karnal Distillery Co. Ltd. (1964) 1 SCR 270.

Jai Krishna v. Babu, AIR 1933 Nagpur 112.

Rai Charan v. Biswanath, AIR 1915 Calcutta 103).

JUDGMENT

Dwivedi, J. - It the defendant's appeal. The plaintiff Digamber Jain Praband Karini Sabha, Panagar, instituted a suit against the defendant Shikharchand Jain for recovery of possession over certain agricultural lands situate in mauza Imlai, Smt. Rajrani, fifth defendant (now dead) was the proprietor of a Patti in mauza Imalai. The land in dispute fell in that Patti. It was her sir. The area of the land is 12.86 acres. Smt. Rajrani became malik maqbooza of the land on the abolition of the proprietary rights in the State in 1951.On January 18, 1954, she gifted the land by a registered gift deed in favour of the plaintiff (which is registered under the Madhya Pradesh Public Trust Act, 1951). Ram Das and Ballu, the third and fourth defendants were cultivating the land. The plaintiff instituted a suit against them on July 15, 1954. In the said suit they pleaded that Shikharchand had sub-let the land to them. The suit was decreed. Their appeals were dismissed on May 4, 1957, Shikharchand and also instituted a suit on November 3, 1955 against the plaintiff and Smt. Rajrani for a declaration that the gift made by her would be void after her death. We are told that the suit has been dismissed in default. As the aforesaid defendants are disputing the plaintiff's title, the suit was instituted. All the defendants except. Smt. Rajrani filed a joint written statement. They denied the plaintiff's title to the land. Smt. Rajrani held a limited estate in the land and the gift deed would be ineffective after her death. She could not gift the entire property. Shikharchand has been in possession over the land since 1937 as an owner thereof and has acquired rights of an owner by adverse possession for more than 12 years. Smt. Rajrani filed a separate written statement. She has supported the case of the plaintiff. The trial court framed a number of issues. Of them, only two now survive for consideration. They are issues Nos. 1 and 4. Issue No. 1 is:

2. Issue No. 1 was answered in favour of the plaintiff. Issue No. 4 was answered against Shikharchand. The trial Court held that he was in possession for and on behalf of Smt. Rajrani and not in his own right. The trial court granted a decree for possession to the plaintiff.

3. Defendants Nos. 1 to 4 went in appeal. The first appellant court allowed the appeal and set aside the decree of the trial court and dismissed the suit. The plaintiff then filed a second appeal in the High Court of Madhya Pradesh. The High Court has reversed the decree of the first appellate court and restored that of the trial court. Hence this appeal by Shikharchand.

4. The first appellate court has held that Shikharchand was in possession over the disputed land since 1937 and has become the owner thereof by adverse possession before Smt. Rajrani transferred the land to the plaintiff. Sri Tarkunde, counsel for Shikharchnd, says that it is a finding of fact and that accordingly the High Court could not interfere with it in second appeal. It appear that the High Court was aware that it was interfering with a finding of fact in a second appeal. So the High Court has explained.

So according to the High Court the finding recorded by the first appellate court was arrived at by overlooking the statutory presumption of possession in favour of the plaintiff and Smt. Rajrani and his approach to the issues before him was not proper and legal. In other words, the High Court intervened under Clause (c) of Section 100(1) of the Civil Procedure Code According to the High Court, the finding of the first appellant court suffered from a "substantial error or defect in the procedure provided....by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."

5. It is now to be seen whether the first appellate court's finding really falls within the grip of Section 100(1) (c) of the Civil Procedure Code. In his written statement Shikharchand has admitted Smt. Rajrani's ownership of the land. but he has pleaded that he has become the owner of the land on account of adverse possession for more than 12 years from 1937. The burden of proving the acquisition of ownership by adverse possession lay on him. The Khasra entries from 1937-38 to 1941-42 and 1943-44 to 1951-52 are all in favour of Smt. Rajrani. They show that she was in possession over the land during those years. Khasra is a record of right according to Section 45(2) of the Central Provinces Land Revenue Act, 1917. Section 80(3) of that Act provides that entries in a record of rights shall be presumed to be correct unless the contrary is shown. This provision raises a presumption of correctness of the aforesaid Khasra entries. The burden of proving adverse possession accordingly was a heavy one. The judgment of the first appellate court shows that it has not kept in mind this aspect while examining the evidence. In the first step, it has proceeded to assess the evidence adduced by Shikharchand. After discussing that evidence, it has recorded a finding that he was in possession. Thereafter, in the second step, it has proceeded to take the view that no reliance can be placed on Khasra entries. It has summed up the discussion thus:

6. As already pointed out, this passage shows that the first appellate court proceeded in the reverse order. Moreover, the Khasra entries have been discarded solely for the reason that Smt. Rajrani has admitted in Ex. D/1 that she was not in possession. But Ex. D/1 has been entirely misunderstood by the first appellate court. Exhibit D/1 is a copy of the plaint filed by Smt. Rajrani in a suit for profits against Shikharchand. Shikharchand was Lambardar of the mahal in which the patti belonging to Smt. Rajrani was situate. In the first paragraph of her plaint she has mentioned this fact. Thereafter she went on to say that she was entitled "to get her share of profits from the defendant." In paragraph 2 she has said:

7. The High Court has considered afresh the entire evidence on record and has held that Shikharchand has failed to establish by positive evidence his adverse possession for more than 12 years. The appellant could not show to us that the finding is not sustainable on the evidence on record. It is not necessary for us to reappraise that evidence again, but we may point out two circumstances which heavily tell against the appellant. Assuming that his adverse possession started in 1937 and continued till 1949, he became the owner of the land in dispute in 1950. Nevertheless he did not move the appropriate revenue authority for the correction of the entries in the record of rights. He did not get the name of Smt. Rajrani expunged from the record and his name entered therein. Again, Beni Ram, one of his witnesses, has admitted that Shikharchand had been paying rent of the sir land of Smt. Rajrani on behalf of Smt. Rajrani until 1958-59. Had he become an-owner by adverse possession in 1950, he would never have paid rent on behalf of Smt. Rajrani.

8. Counsel for the appellant has referred us to Srischandra Nandy v. Baijnath Jugal: Kishore 62 Ind App 40; Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 Supreme Court 57 and R. Ramachandran Ayyar v. Ramalingam Chettiar (1963) 3 SCR 604. But none of these cases help the appellant on the facts of this case. In the last case this Court said:

The same view has been expressed in Ladli Prasad Jaiswal, v. Karnal Distillery Co. Ltd. (1964) 1 SCR 270. In this case the High Court has upset a finding of fact recorded by the lower appellate court inter alia on the ground that the burden of proof was wrongly placed on the plaintiff. Shah J., while affirming the judgment of the High Court, said:

9. In Jai Krishna v. Babu, AIR 1933 Nagpur 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant.

10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement.

11. He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statement. Sri Tarkunde has submitted that if the assertions made in the new paragraph 12 are accepted by the Court, the respondent's suit will have to be dismissed. It is also said that the new situation arising on the death of Smt. Rajrani during pendency of the appeal can be considered by the Court in order to mould the decree in the suit out of which this appeal has arisen. In our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties. (See Rai Charan v. Biswanath, AIR 1915 Calcutta 103).

12. Sri Chagla counsel for the respondent, has submitted that the application for amendment of the written statement should not be allowed. It is said that the appellant has alleged in his written statement that Smt. Rajrani could not transfer the disputed land as she was a limited owner having a widow's estate. The trial Court had framed a specific issue on this aspect and recorded a finding against the appellants. The trial Court said:

The trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge' it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation.

13. Sri Chagla has also pointed out that the respondent has acquired new rights under the Land reform measures passed by the Madhya Pradesh Legislature. It will be open to the respondent to file a reply to the amendment when the case goes back to the trial Court and raise any plea which according to it is likely to defeat the appellant's new claim.

14. So we allow the application for amendment of the written statement on payment of Rs. 200/- as costs to the respondent. The case will now go back to the trial Court. The trial Court will allow reasonable time to the respondent to file a reply to the amended written statement. Thereafter the trial Court will record evidence on the new plea raised by the appellant by his amendment and by the respondent in its reply. The trial Court will then record its findings and forward them to this Court through the High Court. The trial Court should send the findings within four months of the receipt of the record from this Court. C.M.P. No. 1377 of 1969 is dismissed an infructuous.

Order accordingly.