GOJABAI Vs. GANGABAI RAMCHANDRA PAWAR

JUDGEMENT

(1.) A compromise decree in a suit for partition (to which the appellant and respondent No. 1 were parties) conferred a right of pre-emption on all the parties thereto inasmuch as after allotting the different properties to them a provision was made in the decree to the effect that if the plaintiffs or defendants wanted to sell the properties allotted to them they should sell the same among themselves mutually. It appears that under this compromise decree 5 acres of land bearing survey No. 236/1/2 part was allotted to the share of respondent No. 1. Instead of offering the said land to the appellant the first respondent sold the same to the second respondent (her daughter's son-in-law) by registered sale deed dated 25-9-1962, for a price of Rs. 4,000 and upon the execution of the deed the possession was also delivered to the second respondent. On 10th March, 1964, the appellant (who was plaintiff No. 1 in the partition suit) filed a suit being Regular Civil Suit No. 30/64 in the court of the Civil Judge, Phaltan, seeking to assert her right of pre-emption in respect of the said land basing her claim entirely upon the compromise decree. She prayed for revocation of the sale deed in favour of respondent No. 2 execution of a fresh sale deed in her own favour. From both the respondents she also prayed for damages of Rs. 1000/- and further claimed mesne profits up to the date of delivery of possession. The trial court by its judgment dated 18th August, 1965 upheld the claim of the appellant and decreed the suit in her favour save and except that it negatived the claim for damages and mesne profits. Against that decree respondent No. 2 (the purchaser under the sale deed dated 25-9-1962) preferred an appeal to the District Court at Satara being Civil Appeal No. 321 of 1965. During the pendency of the appeal the second respondent applied for an amendment of the written statement seeking to raise a plea of the bar of limitation which was granted. The appellant also applied for an amendment of the plaint seeking to introduce in the plaint a new case that there was an agreement of sale in her favour in respect of the land in question and she desired to specifically enforce the same. That amendment application was opposed but notwithstanding the opposition that amendment was allowed by the Assistant Judge on 28th April 1966. Later on 11th June 1966, the learned Assistant Judge allowed the appeal, set aside the decree of the trial court and remanded the suit for fresh trial in accordance with law. It appears that the said order of remand was passed upon consent of the parties.

(2.) Respondent No. 2 preferred an appeal to the High Court against the said remand order, but since the learned Single Judge of the High Court was doubtful whether an appeal lay against the impugned remand order he converted the appeal into a revision application and proceeded to hear the same as such. The High Court felt that the learned Assistant Judge had erred in allowing the amendment sought by the appellant/plaintiff inasmuch as it converted the suit into an entirely new and inconsistent one than what had been instituted initially. On merits it found that the appellant relied upon the compromise decree passed in the partition suit to sustain the plea of agreement of sale and no separate agreement of sale as such was pleaded of which specific performance could be claimed but in its view the compromise decree did not constitute any agreement for sale but merely conferred a right of pre-emption on the appellant/plaintiff. The High court also felt that the suit as initially filed for enforcement of the right of pre-emption was clearly barred by limitation inasmuch as the suit had been filed long after the expiry of one year from the date of delivery of possession of the land by respondent No. 1 to respondent No. 2 pursuant to the impugned sale. It was true that the plea of limitation had not been raised in the written statement initially and the same was allowed to be raised by way of amendment in the appeal. But obviously it would be the duty of the Court to see that the suit if barred by limitation was dismissed irrespective of whether a plea about it was raised or not. In these circumstances the High Court set aside the order allowing the amendment sought by the plaintiff and proceeded to dismiss the suit on the ground of limitation. It is this order passed by the High Court on 17th February, 1969 that is sought to be challenged by the appellant before us in this appeal.

(3.) Counsel for the appellant vehemently contended before us that since the remand order was passed by the learned Assistant Judge upon consent of parties not only would an appeal not lie but even such order could not be interfered with in revision. There is undoubtedly some force in this contention of the counsel. However on a fair reading of the judgment of the High Court we are clearly of the view that the High Court did not intend to interfere with or set aside the order of remand but actually interfered with the order granting amendment of the plaint sought by the appellant/plaintiff and in that behalf we are satisfied that the case sought to be put forward by way of amendment was not merely a new and inconsistent case as such ought not to have been allowed but such amendment was sought with a view to get over the bar of limitation which clearly lay in the way of the plaintiff getting a decree for pre-emption. We are also satisfied that in the amendment that was sought by her, the appellant/plaintiff had nowhere averred that any agreement for sale as such had been entered into by the first respondent with her but the self same compromise decree was relied upon for spelling out the agreement for sale. If regard be had to the terms of the compromise decree it is clear that all that the said decree granted to the appellant/plaintiff was merely a right of pre-emption. The relevant portion of that decree ran thus: