KEDAR NATH Vs. CHAWALI

JUDGEMENT

(1.) THIS is a plaintiffs' Regular Second Appeal. Whereas, the suit of the plaintiffs for possession with regard to two parcel of lands, measuring 182 kanals and 35 kanals 12 marlas, situate in village Bassi, Tehsil and District Mohendergarh, was decreed by learned Court vide judgment and decree dated 17.5.1975, appeal preferred by the defendant-respondents was partly allowed. Whereas, appeal pertaining to the land measuring 182 kanals was dismissed, the one pertaining to 35 kanals 12 marlas of land was allowed. Against the judgment and decree dated 5.2.1980 passed by learned Appellate Court upholding the judgment and decree of learned trial Court in favour of the plaintiffs pertaining to 182 kanals of land, the defendants preferred Regular Second Appeal bearing No. 704 of 1980, which was dismissed on 2.4.1980. The same very Hon'ble Judge, who dismissed the appeal filed on behalf of the defendants on 2.4.1980, admitted the present appeal, pertaining to 35 kanals 12 marlas of land, preferred by the plaintiff-appellants, on 5.9.1980.

(2.) THERE is no need to go into the details of the case as, suffice it to mention that with regard to the two parcels of land, as mentioned above, consistent findings of learned Courts below are that the plaintiffs are the owners on the basis of title insofar as land measuring 182 kanals is concerned and on the basis of inheritance from Hardeva and Balla insofar as 35 kanals 12 marlas of land is concerned. As mentioned above, the plaintiffs have been held to be owners on the basis of title as also inheritance in tune with the pleadings made in the plaint. Despite the findings of learned trial court pertaining to the ownership, as mentioned above, suit of the plaintiffs with regard to the land measuring 35 kanals 12 marlas has been dismissed by learned Appellate Court reversing the judgment of learned trial Court on the sole ground that the defendants were tenants of the parcel of land measuring 35 kanals 12 marlas and the issue pertaining to jurisdiction of civil court to entertain and try the civil suit. Obviously, findings on the issue aforesaid, which was framed by learned trial Court as Issue No. 14-A, would depend on as to whether the defendants were the tenants of the parcel of land measuring 35 kanals 12 marlas.

(3.) HAVING given in brevity the pleadings of the parties and the result of the suit before learned trial Court as also Appellate Court, time is now ripe to evaluate the contentions of learned counsel raised in support of this appeal, which only pertain to the land measuring 35 kanals 12 marlas. It has vehemently been argued by learned counsel that inspite of the fact that suit before the revenue Court did not pertain to the second piece of land measuring 35 kanals 12 marlas, in the proceedings of the present suit as well, the defendants had denied the title of the plaintiffs. Once, they have denied the title of the plaintiffs, naturally, it could not be their case that they were tenants over the property in dispute. They moved an application for amendment of written statement under Order 6 Rule 17 of Code of Civil Procedure almost two years after the institution of the suit wherein, for the first time, they pleaded that they were the tenants. This amendment was allowed. They later moved yet another application for amendment of the written statement claiming adverse title. That application was, however, dismissed. Even though there was a complete denial with regard to title of the plaintiffs in the written statement that had earlier been filed but in the amended written statement also, there was no mention that who was the owner of the property in dispute and in other words, under whom the defendants were cultivating the suit land as tenants and as to how much was the rate of rent. Paragraph 9-A that was inserted in the written statement, after translating into English, runs thus :-