GAFUR BANDU MULLA Vs. KHUTUBBI MARD KONDIBA MULLA

JUDGEMENT

(1.) THIS second appeal is preferred against the judgment and order dated 22nd June, 1979, passed by the Extra Assistant Judge, Satara, dismissing Civil Appeal No. 43 of 1977 and confirming the judgment and order dated 20th November, 1976, passed by the Joint Civil Judge, Junior Division, Karad, dismissing Regular Civil Suit No. 182 of 1971 with costs to defendant Nos. 1 to 4, 6, 7, 9, 10 and 13. The appellants-original plaintiffs filed the aforesaid suit against the respondents defendants for partition and separate possession of the 1/3rd share in the suit property. It was the case of the plaintiffs that Bandu-husband of plaintiff No. 2 and father of plaintiff Nos. 1 and 3 had three brothers viz. Kondi, Gulab and one more brother who died without leaving behind him any heirs. It was further the case of plaintiffs Nos. 1 and 3 that their father had 1/3rd share in the ancestral joint Muslim family properties. It was further their case that defendant Nos. 1 to 17 are the heirs of Kondi and defendant No. 18 is the son of Gulab. The plaintiff Nos. 1 and 3 further averred in the plaint that their father Bandu expired in the year 1940 and at that time they were minors living jointly with Kondi and Gulab till the year 1965. In the year 1963 Kondi expired and thereafter defendant Nos. 1 to 17 started harassing the present plaintiffs and therefore, in the year 1965 they left the suit premises where they were residing jointly with the other members of the deceased Kondi and Gulab. It was further averred in the plaint that cause of action to file the suit accrued to them in 1971 and, therefore, they filed the present suit on 2nd August, 1971, for partition and separate possession of their share in the joint family property. While defendant Nos. 11 and 18 by their written statements admitted the claim of the plaintiffs, defendant Nos. 8, 12, 14 to 17 were not represented. Therefore, the real contesting defendants viz defendants Nos. 1 to 4, 6, 7, 9, 10 and 13 took a specific plea in their written statements that the suit property at no stage belonged to Bandu father of plaintiffs Nos. 1 and 3 or the plaintiffs at any time. The said property, according to them, was the self acquired property of the contacting defendants and their father and, therefore, the plaintiffs are not entitled to demand share in the said property.

(2.) IT is pertinent to note at this stage that neither in their written statements nor in their subsequent depositions the contesting defendants denied the avernment of the plaintiffs that till the year 1965 the plaintiffs were staying jointly with the defendants and it is only after the death of Kondi in 1963 that the defendants started harassing them and, therefore, in the year 1965 they left the suit premises. However, after the evidence was led by both the sides and the matter was fixed for arguments the contesting defendants filed application on 17th November, 1976, vide Exh. 154 for the amendment of the written statement stating that in the deposition defendants No. 2 stated that the father of plaintiff Nos. 1 and 3 filed Suit No. 602 of 1925 before the Civil Judge, Junior Division, Karad, for partition and separate possession of the suit properties and obtained the necessary decree in the year 1925. Since the aforesaid fact was revealed to the contesting defendants only after the said deposition was over, they filed the said application for the amendment of the plaint for taking the specific stand of res-judicata. The said application was resisted by the plaintiffs and on the same day of the presentation of the said application the trial Court allowed the said amendment. Thereafter, the trial Court by its judgment and order dated 20th November, 1976, came to the conclusion that in view of the fact that the father of plaintiffs Nos. 1 and 3 had filed Suit No. 602 of 1925 in respect of the suit property and obtained a decree, the present suit is not maintainable on the ground of res-judicata. However, on the ground of adverse possession, the trial Court held that since the plaintiffs were jointly residing with the defendants till the year 1965 there is no question of adverse possession because the present suit is filed by the plaintiffs on 2nd August, 1971, and dismissed the suit with costs to the aforesaid defendants. Against the dismissal of the suit by the trial Court on the ground of res-judicata, the plaintiffs preferred Civil Appeal No. 43 of 1977 before the District Judge, Satara, and the Extra Assistant Judge by his decision dated 22nd of June, 1979, dismissed the said appeal with costs. The lower Appellate Court confirmed the finding of the trial Court on the point of res-judicata while reversing the finding on the point of adverse possession in favour of defendants. Against the aforesaid decision of the lower Appellate Court the plaintiffs have come in this second appeal.

(3.) MR. Walavalkar, the learned Counsel, appearing on behalf of the appellants-plaintiffs contended that both the Courts below were wrong in allowing the amendment to the written statement as claimed by the defendants vide Exh. 154 and coming to the conclusion that the plaintiffs suit is barred by the principles of res-judicata. In order to support this contention he submitted that after the evidence was over on 16th November, 1976, the contesting defendants presented their application on the next day i. e. 17th November, 1976, for amendment of their written statement praying that the view of the earlier Suit No. 602 of 1925 filed by the father of plaintiff Nos. 1 and 3 for partition and separate possession of all the properties including the suit property, the present suit is barred by the principles of res-judicata and, therefore, allowing such an application at a belated stage the trial Court has prejudged the plaintiff. According to him, the trial Court has virtually lost sight of the fact that the amendment under Order VI, Rule 17 of the Code of Civil Procedure should be allowed only if these Court finds absolutely necessary that for the purpose of determining the real question in the controversy pending in the suit such amendment is required to be carried out. He, therefore, contended that in the present case had the trial Court applied its mind it would have come to a definite finding that from what has been stated by the contesting defendants in their written statement such an amendment was not at all warranted. In fact, the contesting defendants in their written statement at para 6 have clearly stated that the suit property in the self acquired property of their father and the father of plaintiff Nos. 1 and 3 and that the plaintiff No. 2 had at no time in the past any right towards the suit property in any way. The bone of contention therefore, was while according to the plaintiffs the suit property was the joint family property, according to the contesting defendants it was a self acquired property of Kondiba. I do not find anything in the pleadings to show that the property described in Suit No. 602 of 1925 and the property described in the present suit are one and the same. If this is so, there was no justification in allowing the said amendment. However, the trial Court allowed the amendment on the same day on which the application for amendment was made observing that it is not going to cause any predicate to the plaintiffs. It is surprising how the learned trial Judge could grant this application for amendment. In the written statement the defendants have taken a specific stand that is a self acquired property and not a joint family property. The suit filed in the year 1925 was for partition of the joint family property. In the deposition all the contesting defendants stated that the present suit property is the self acquired property of their father and the deposition of all the witnesses were over on 16th November, 1976. However, on the very next day i. e. on 17th November, 1976 the said application, Exh. 154 was preferred. In such circumstances, in my opinion, this application is bound to cause prejudice to the plaintiffs. In any event, when such an amendment was allowed it was mandatory on the trial Judge to allow the plaintiffs to amend their pleadings in the plaint and to allow them to lead evidence, if they so desired. The trial Court failed to do this which prevented the plaintiffs from raising any plea by amending their pleadings and leading evidence. Therefore, the said order passed on Exh. 154 is clearly illegal in the eyes of law. In the view that I have taken the said order dated 17th November, 1976, deserves to be quashed and set aside. This being the position, both the Courts below were not at all justified in allowing the contesting defendants to raise the plea of res judicata. Principles of res judicata are mixed questions of facts and law and, therefore, the plaintiffs ought to have been allowed to take adequate measures to put up their case after the amendment was allowed, particularly when the contesting defendants had taken up the specific plea that the suit property was never a joint family property, but a self acquired property. In the aforesaid circumstances, the decree passed by the trial Court on the point of res-judicata has to be set aside.