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PETITIONER: SHIKHARCHAND JAIN

       Vs.

RESPONDENT: DIGAMBER JAIN PRABAND KARINI SABHA AND OTHERS

DATE OF JUDGMENT11/01/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PALEKAR, D.G. KRISHNAIYER, V.R.

CITATION:  1974 AIR 1174            1974 SCC  (2) 215  CITATOR INFO :  R          1975 SC 123  (22)

ACT: Civil  Procedure  Code--Amendment of the  written  statement during  pendency of the appeal--Whether Appellate Court  can order  amendment of the written statement in view of  change of circumstances not contemplated at the time of institution of the suit.

HEADNOTE: The  respondent  no. 1, Digamber Jain Praband  Karini  Sabha instituted  a  suit against the appellant  for  recovery  of possession  of  certain agricultural  land  Respondent  Smt. Rajrani  was  the malik maqbooza of the land who,  in  1954, gifted  the  land  by a registered gift deed  in  favour  of respondent  no.  1. The third and  fourth  respondents  were cultivating  the  land.   Respondent no.  1  sued  them  for possession  but they pleaded that the appellant had  sub-let the land to them.  The suit was decreed.  Their appeals were dismissed.   The  appellant  thereafter  had  filed  a  suit against respondent no.1 for a declaration that the gift made by  the 5th respondent in favour of the 1st  respondent  was void; but the suit was dismissed for default. The suit from which the present appeal arose, was filed  and all the defendants except Smt.  Rajrani filed their  written statement.   The trial court decreed the suit in  favour  of respondent no.1. On appeal,the first appellate court allowed the  appeal but on a second appeal, the High Court  reversed the decree of the appellate court and restored the decree of the  trial  court and hence the present appeal  before  this Court. Remanding the case to the trial court, HELD  :  (1)  In his written statement,  the  appellant  had admitted Smt.  Rajrani’s ownership of the land.  But he  had pleaded  that  he became the owner of the  land  by  adverse possession  for  more than 12 years from 1937.   The  khasra entries  from 1937-38 to 1941-42 and 1943-44 to 1951-52  are all in favour of Smt.  Rajrani.  Further, assuming that  the appellants’ adverse possession started in 1937 and continued till  1949,  he became the owner of the land in  dispute  in 1950.  Nevertheless, he did not move the appropriate revenue authority  to correct the entries in the. record of  rights.

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Again  one  of  his own witnesses,  has  admitted  that  the appellant  had  been  paying rent of the  disputed  land  on behalf  of  Smt.  Rajrani till 1958-59.  Had  he  became  an owner  by  adverse possession in 1950, he would  never  have paid rent on behalf of Smt.  Rajrani. Maharaja  Srischandra  Nandy v. Baijnath Jugal  Kishore  62, Indian Appeals 40; Deity Pattabhiramaswamy v. S.  Hanymayya, A.I.R.  1959  S.  C. 57 and H.   R.  Ramachandran  Ayyar  v. Ramalingam Chettiar, [1963] 3 S.C.R. 604, referred to. (2)  During pendency of the appeal, as Smt.  Rajrani died in 1968, the appellant filed an application for substitution of himself  as  her  legal  representative  in  place  of  Smt. Rajram.   No  order has yet been made on  this  application. Now he has made another application in the course of hearing seeking  amendment of his written statement in view  of  the changed  circumstances  to the effect that  as  the  limited owner  Smt.   Rajrani died, he is entitled to  the  disputed property  as the sole reversioner and respondent no.  1  and no right in the said lands. It  is,  therefore open to the Court, including a  court  of appeal  to take notice of events which have  happened  after the  institution  of  the  suit and  afford  relief  to  the parties. Rai Charon Mandal and another v. Biswanath Mandal and others A.I.R. 1915 Cal.103, referred to. (3)  Under  the  circumstances,  since  the  death  of  Smt. Rajrani  creates a fresh [,cause of action to the  appellant who claims to be her next reversioner, it will be just  ,and proper to allow the amendment.  Therefore, the amendment  is allowed and 102 the case will go back to the trial court and the trial court will give reasonable time to the respondent to file a  reply to the amended written statement.  The trial Court will then record its findings and the new plea raised by the appellant and  shall  forward them to this Court  through  High  Court within 4 months of the receipts of the record.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1598  of 1967. Appeal  by special leave from the judgment and decree  dated October 17, 1966 of the Madhya Pradesh High Court in  Second Appeal No. 521 of 1962. V.   M.  Tarkunde,  S.  L. Jain and M.  S.  Gupta,  for  the appellant. M.   C.  Chagla, S. K. Bagga, S. Bagga, Yash Bagga and  Rani Arora, for the respondents. The Judgment of the Court was delivered by DWIVEDI,  J.-It  is the defendant’s appeal.   The  plaintiff Digamber  Jain Praband Karini Sabha, Panagar,  instituted  a suit against the defendant Shikharchand Jain for recovery of possession over certain agricultural lands situate in  mauza Imlai.   Smt.  Rajrani, fifth defendant (now dead)  was  the proprietor  of a Patti in mauza Imlai.  The land in  dispute fell  in that Patti.  It was her sir.  The area of the  land is 12 .86 acres.  Smt.  Rajrani became malik maqbooza of the land on the abolition of the proprietary rights in the State in  1951.   On January 18, 1954. she gifted the  land  by  a registered  gift deed in favour of the plaintiff  (which  is registered under the Madhya Pradesh Public Trust Act, 1951). Ram  Das  and Ballu, the third and fourth  defendants,  were cultivating  the  land.   The plaintiff  instituted  a  suit

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against  them  on  July 15, 1954.  In  the  said  suit  they pleaded that Shikharchand had sub-let the land to them.  The suit  was decreed.  Their appeals were dismissed on  May  4, 1957.   Shikharchand also instituted a suit on  November  3, 1955   against  the  plaintiff  and  Smt.   Rajrani  for   a declaration  that the gift made by her would be  void  after her death.  We are told that the suit has been dismissed  in default.   As  the aforesaid defendants  are  disputing  the plaintiff’s  title,  the  suit  was  instituted.   All   the defendants  except  Smt.   Rajrani  filed  a  joint  written statement.   They denied the plaintiff’s title to the  land. Smt.  Rajrani held a limited estate in the land and the gift deed  would be ineffective after her death.  She  could  not gift   the  entire  property.   Shikharchand  has  been   in possession over the land since 1937 as an owner thereof  and has  acquired rights of an owner by adverse  possession  for more than 12 year,.  Smt.  Rajrani filed a separate  written statement.   She  has supported the case of  the  plaintiff. The  trial court framed a number of issues.  Of  them,  only two now survive for consideration.  They are issues Nos.   1 and 4. Issue No. 1 is :               "1(a)   Whether  the  defendant  No.  5   Smt.               Rajrani was the owner of the suit fields  till               18-1-1954 ?               (b)   whether  she was also in  possession  of               the suit fields till 18-1-1954 ?               4.    (a)    whether    defendant    No.     1               (Shikharchand)   has   been   in    exclusive,               continuous and uninterrupted possession of the               suit                103               fields  since 1937 adversely to the  defendant               No. 5 and the plaintiff ?               " (b) whether, therefore, the defendant No.  1               has perfected Ms title by adverse possession ?               Issue  No.  1 was answered in  favour  of  the               plaintiff.   Issue No. 4 was answered  against               Shikharchand.   The trial court held  that  he               was  in possession for and on behalf  of  Smt.               Rajrani  and not in his own right.  The  trial               court  granted a decree for possession to  the               plaintiff.               Defendants  Nos.  1 to 4 went in appeal.   The               first  appellate court allowed the appeal  and               set  aside the decree of the trial  court  and               dismissed the suit.  The plaintiff then  filed               a  second appeal in the High Court  of  Madhya               Pradesh.   The  High Court  has  reversed  the               decree  of  the  first  appellate  court   and               restored that of the trial court.  Hence  this               appeal by Shikharchand. The first appellate court has held that Shikharchand was  in possession over the disputed land since 1937 and has  become the owner thereof by adverse possession before Smt.  Rajrani transferred  the  land  to  the  plaintiff.   Sri  Tarkunde, counsel for Shikharchand, says that it is a finding of  fact and that accordingly the High Court could not interfere with it  in  second appeal.  It appears that the High  Court  was aware  that it was interfering with a finding of fact  in  a second    appeals.   So  the  High  Court   has   explained. "(Defendants 1 to 4) clearly failed to establish by positive evidence  the adverse possession of (Shikharchand) for  more than  twelve years at any point of time so as to  rebut  the statutory presumption of possession arising in favour of the appellant   and  its  predecessor-in-title  Smt.    Rajrani.

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Therefore, with due respect to the learned appellate  Judge. I   might  say  that  the  question  has   been   absolutely misconceived him and he has not approached the question in a proper and legal manner with a view to apply the law to  the facts found established from the record.  In this view,  the decree  passed  by  the  first  appellate  court  cannot  be sustained either on facts or law." So according to the  High Court the finding recorded by the first appellate court  was arrived  at  by  overlooking the  statutory  presumption  of possession in favour of the plaintiff and Smt.  Rajrani  and his  approach  to the issue before him was  not  proper  and legal.  In other words, the High Court intervened under  cl. (c) of s. 100(1) of the Code of Civil Procedure.   According to the High Court, the finding of the first appellate  court suffered  from  a  "substantial  error  or  defect  in   the procedure  provided.... by any other law for the time  being in  force, which may possibly have produced error or  defect in the decision of the case upon the merits." It  is  now to be seen whether the first  appellate  court’s finding really falls within the grip of s. 100(1)(c) of  the Code   of  Civil  Procedure.   In  his   written   statement Shikharchand  has admitted Smt.  Rajrani’s ownership of  the land.   But he has pleaded that he has become the  owner  of the  land on account of adverse possession for more than  12 years  from 1937.  The burden of proving the acquisition  of ownership by adverse possession lay on him.  The Khasra 104 entries  from 1937-38 to 1941-42 and 1943-44 to 1951-52  are all  in favour of Smt.  Rajrani.  They show that she was  in possession  over the land during those years.  Khasra  is  a record  of  right  according  to s.  45(2)  of  the  Central Provinces Land Revenue Act, 1917.  Section 80(3) of that Act provides that entries in a record of right shall be presumed to be correct unless the contrary is shown.  This  provision raises a presumption of correctness of the aforesaid  Khasra entries.    The   burden  of  proving   adverse   possession accordingly  was  a heavy one.  The judgment  of  the  first appellate  court  shows that it has not kept  in  mind  this aspect while examining the evidence.  In the first step,  it has   proceeded   to   assess  the   evidence   adduced   by Shikharchand.   After  discussing  that  evidence,  it   has recorded  a finding that he was in possession.   Thereafter, in  the second step, it has proceeded to take the view  that no reliance can be placed on Khasra entries.  It has  summed up the discussion thus               "(A) 11 these witnesses (of Shikharchand) have               stated  that the possession of the fields  was               with   Shikharchand.   Their  statements   are               further supported by documentary evidence and,               therefore, there is no room for any doubt that               the possession was not with Shikharchand.   It                             is true that in Patwari papers Mst. Rajrani’s               name appears and that the dues were  deposited               on behalf of Mst.  Rajrani.  But in my opinion               the  entries in Khasra and the fact  that  the               receipts  were  issued  in the  name  of  Mst.               Rajrani would not by themselves establish  the               fact  of  possession.It is  settled  law  that               entries in Khasra have only presumptive value,               and  it  is difficult to conclude  from  these               entries  that  the possession  was  with  Mst.               Rajrani.  The falsity of the entries in Khasra               is clear from the fact that from 1937 to  1947               the  name  of Mst.  Rajrani  appeared  in  the

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             khasra  Panchsala  and  yet  Mst.    Rajrani’s               admission  in  D/1 shows that she was  not  in               possession.  This fact is enough to show  that               no  reliance  could be placed  on  the  Khasra               entries." As  already pointed out, this passage shows that  the  first appellate  court proceeded in the reverse order.   Moreover, the Khasra entries have been discarded solely for the reason that Smt.  Rajrani has admitted in Ex.  D/1 that she was not in possession.  But Ex.  D/1 has been entirely misunderstood by the first appellate court.  Exhibit D/1 is a copy of  the plaint filed by Smt.  Rajrani in a suit for profits  against Shikharchand.   Shikharchand was Lambardar of the  muhal  in which the Patti belonging to Smt.  Rajrani was situate.   In the  first  paragraph of her plaint she has  mentioned  this fact.   Thereafter she went on to say that she was  entitled "to  get  her  share  of profits  from  the  defendant."  In paragraph  2  she  has  said : "That  the  defendant  is  in possession  of  all  the  sir  and  khudkasht  land  of  her full ...... patti of the village...... that as the defendant did  not render an account, nor paid any thing in  spite  of repeated demands and a notice by the plaintiff, he is liable to  pay interest by way of damages at the rate of  /8/-  per cent  per month" and the amount detailed in the schedule  of accounts  attached to the plaint.  In the schedule  she  has shown.the amount of rent recovered by Shikharchand from  the tenants.   She has also shown the estimated income from  sir and 105 khudkasht  land  belonging  to her.   After  making  certain deductions,  a total amount of Rs. 318/7/- was claimed  from Shikharchand.   The suit was filed in July 1942.   The  suit for profits related to a period between 1938-39 and 1940-41. We  do not think that paragraph 2 of the plaint can be  read in the manner it has been read by the first appellate court. It  was  a  suit  for profits by  a  co-sharer  against  the Lambardar.   It  was not a suit for mesne profits  which  an owner of land may claim from a trespasser.  It wag really  a suit for accounts from the Lambardar.  So it is not possible to  spell  out  from  paragraph 2  an  admission  from  Smt. Rajrani that Shikharchand was in adverse possession over her sir  land.  Further Shikharchand did not file a copy of  his own  written  statement, nor a copy of the judgment  in  the suit.   If he had denied his possession over her  sir  land, the  suit  for  profits  from  sir  land  would  have   been dismissed.   If he had pleaded adverse possession, over  her sir, then also her suit for profits from sir land would have been dismissed.  If, on the other hand, the suit for profits of sir land were decreed, it would follow that  Shikharchand was  held to be in permissive possession and not in  adverse possession.  In the result, we are of opinion that the first appellate  court was wholly wrong in discarding  the  Khasra entries  on  the solitary statement in paragraph  2  of  her plaint.  The High Court could, therefore, interfere with its finding under s. 100(1)(c). The High Court has considered afresh the entire evidence  on record  and  has  held  that  Shikharchand  has  failed   to establish  by positive evidence his adverse  possession  for more than 12 years.  The appellant could not show to us that the  finding is not sustainable on the evidence  on  record. It  is  not  necessary for us to  reappraise  that  evidence again, but we may point out two circumstances which  heavily tell  against  the  appellant.  Assuming  that  his  adverse possession  started  in  1937 and continued  till  1949,  he became   the  owner  of  the  land  in  dispute   in   1950.

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Nevertheless  he  did  not  move  the  appropriate   revenue authority for the correction of the entries in the record of rights.   He did not get the name of Smt.  Rajrani  expunged from  the record and his name entered therein.  Again,  Beni Ram,  one of his witnesses, has admitted  that  Shikharchand had  been  paying rent of the sir land of Smt.   Rajrani  on behalf  of  Smt.  Rajrani until 1958-59. Had  he  become  an owner  by  adverse possession in 1950, he would  never  have paid rent on behalf of Smt.  Rajrani. Counsel  for  the  appellant has  referred  us  to  Maharaja Srischandra  Nandy  v.  Baijnath  Jugal  Kishore,(1)   Deity Pattabhiramaswamy  v.  S. Hanymayya(2) and  R.  Ramachandran Ayyar  v.  Ramalingam Chettiar.(3) But none of  these  cases help  the appellant on the facts of this case.  In the  last case  this Court said : "(1)f in dealing with a question  of fact  the  first appellate court has placed the  onus  on  a wrong  party  and  its  finding  of  fact  is  the   result, substantially  of this wrong approach, that may be  regarded as a defect in procedure under s. 100(1)(c)." The same  view has  been  expressed  in  Ladli  Prasad  Jaiswal  v.  Karnal Distillery Co. Ltd.(4) In this case the High Court has upset a finding (1) 62 Indian Appeals 40. (2) A. 1. R. 1959 S.C. 57. (3) [1963]  3 S. C. R. 604.  (4) [1964] 1 S. C. R. 270. 106 of fact recorded by the lower appellate court inter alia  on the  ground that the burden of proof was wrongly  placed  on the plaintiff.  Shah J., while affirming the judgment of the High  Court, said: "A decision of the first appellate  court reached   after  placing  the  onus  wrongly  ....  is   not conclusive  and  a  second appeal lies  to  the  High  Court against that decision." In Jai Krishna v. Babu. (1) it was held that possession of a nonowner  after partition is adverse.  No exception  may  be taken  to this preposition.  But we fail to  understand  how this case will assist the appellant. We  now  pass  on to another aspect  of  the  case.   During pendency  of this appeal Smt.  Rajrani died on  December  5, 1965.  The appellant first filed C.M.P. No. 1377 of 1969 for his  substitution  in  place of  Smt.   Rajrani,  the  fifth respondent,  as her legal representative.  No order has  yet been  made  on this application.  Now he  has  made  another application  in the course of hearing.  By this  application he  seeks to amend his written statement.  He wants to  make this addition to the written statement :               "12(a) that the gift deed dated 18-1-1954  was               executed  by Smt.  Rajrani who was a,  limited               owner  having a widow’s estate on the date  of               the  execution  of the  gift  deed.   Assuming               though  not admitting the said gift  deed  was               valid  it  is submitted that  the  above  gift               could  at  most  enure for  the  life  of  the               defendant No. 5. The plaintiff cannot have any               rights  in the suit lands after the  death  of               Smt.   Rajrani and the defendant as  the  sole               surviving reversioner becomes the owner of the               lands and resist the claim of the plaintiff.               (b)   that the genealogy of the family  is  as               under                              Bihari Lal ------------------------------------------------------------- Dakhandji           Bhagwandasji                 Shrichandji (diedissueless)

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                          |                            |                  ----------------------                            |                       Nathulalji                      (died issueless,                     husband of defandant,                            No. 2)                    ----------------------------------------                         |                      |                         |                      |                    Monoolalji              Kapoorchandji                (died issueless)                                                  |                                                Shikharchand                                                (plaintiff) .lm15 "12(c)  that the deceased Smt.  Rajrani could  not  transfer the suit property even for the religious and charitable pur- poses  as  it  was the entire property she had  and  such  a transfer is not binding on the defendant after her death." (1)  A.I.R. 1933 Nagpur 112. 107 He also prays for the renumbering of present paragraph 12 as paragraph  13  of the written statement.  Sri  Tarkunde  has submitted  that if the assertions made in the new  paragraph 12  are  accepted by the Court, the respondent’s  suit  will have  to  be  dismissed.   It is also,  said  that  the  new situation  arising  on the death of  Smt.   Rajrani  during. pendency  of  the appeal can be considered by the  Court  in order  to,  mould the decree in the suit out of  which  this appeal  has arisen.  In our view, Mr. Tarkunde, is right  in this  submission.   Ordinarily, a suit is tried in  all  its stages  on the cause of action as it existed on the date  of its  institution.   But it is open to a Court  (including  a court  of  appeal)  to  take notice  of  events  which  have happened after the institution of the suit and afford relief to  the  parties in the changed circumstances  where  it  is shown  that the relief claimed originally has (1) by  reason of subsequent change of circumstances become  inappropriate, or  (2) where it is necessary to take notice of the  changed circumstances in order to shorten the litigation, or (3)  to do  complete  justice between the parties  (See  Rai  Charan Mandal and another v.. Biswanath Mandal and others)(1). Sri  Chagla, counsel for the respondent, has submitted  that the  application  for  amendment of  the  written  statement should  not be allowed.  It is said that the  appellant  has alleged  in his written statement that Smt.   Rajrani  could not  transfer the disputed land as she was a  limited  owner having  a  widow’s  estate.   The  trial  court  had  framed specific issue on this aspect and recorded a finding against the appellant.  The trial court said : "(Smt.  Rajrani) is a jain  widow, and therefore she is competent to transfer  the suit lands for religious and charitable purposes." The trial court decreed the suit.  The appellant filed an appeal.  The appeal was allowed and the decree of the trial court was set aside.   The  respondent then filed a second appeal  in  the High Court.  As already stated, the High Court set aside the decree of the, first appellate court and restored the decree of  the trial court.  It is said by Sri Chagla that  as  the appellant did not challenge the validity of the gift  either in the first appellate court or in the High Court, he should not  be allowed to challenge it now by an amendment  of  his written  statement.   We find it difficult  to  accept  this submission  of Sri Chagla.  Even if the assertions  made  in

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the  application for amendment of the written statement  are found  to be true, the appellant could not  have  non-suited the respondent during. the life time of Smt.  Rajrani.   The gift  was  valid during her life time.  Her  death  gives  a fresh cause of action to the appellant who claims to be  her next reversioner.  It appears to us that it will be just and proper  to allow the amendment sought for. it  will  shorten litigation. Sri  Chagla  has also pointed out that  the  respondent  has acquired new rights under the Land reform measures passed by the  Madhya  Pradesh Legislature.  It will be  open  to  the respondent  to file a reply to the amendment when  the  case goes  back  to  the trial court and  raise  any  plea  which according  to  it is likely to defeat the  appellant’s  new, claim. (1) A.I.R. 1915 Cal. 103 108 So  we  allow the application for amendment of  the  written statement on payment of Rs. 200 as -costs to the respondent. The  case  will now go back to the trial court.   The  trial court will allow reasonable time to the respondent to file a reply  to  the amended written  statement.   Thereafter  the trial  court will record evidence on the new plea raised  by the appellant by his amendment and by the respondent in  its reply.   The trial court will then record its  findings  and forward  them  to this Court through the  High  Court.   The trial  court should send the findings within four months  of the receipt of the record from this Court.  C.M.P. No.  1377 of 1969 is dismissed as infructuous on receipt of  findings, the appeal will be listed for hearing before the Court. S.C.                                      Case Remanded. 109