RAN SINGH Vs. MUKHTIARA SINGH

JUDGEMENT

(1.) This second appeal of Ran Singh is directed against the decree of the District Judge, Fatehgarh Sahib at Bassi, confirming that of the Sub Judge, II Class Payal, dismissing the Appellant's suit for possession of 85 bighas of agricultural land as barred by time under Article 2, Patiala Limitation (Custom) Act. Mst. Jiwi, widow of Gurdita, succeeded to the land in suit on the death of her minor son Fateh Singh. She gifted it in favour of Mukhtiar Singh respondent, who is in no way related to this family but is the son of a Pichhlag daughter of Mst. Jiwi, by a registered deed dated 4-11-1975 (Bk). Mutation regarding the gift was sanctioned in Mukhtiar Singh's favour on 23-10-1976 and he also got possession of the land. Mst. Jiwi died on 23-7-2005 and Ran Singh brought the present suit on 4-7-2006 alleging that he was a collateral in the fourth degree of the last male-holder that the land was ancestral qua him and that Mst. Jiwi who had only a limited estate, could not pass on the land to a son of her Pichhlag daughter. In the plaint it was further stated that for the purpose of limitation the suit fell under the Punjab Limitation (Custom) Act and was barred but for the extension to which the Plaintiff was entitled because of the gift having been kept secret from him by a fraud played upon by defendant. Mukhtiar Singh in his written statement admitted the land to be ancestral and joined issue with the Plaintiff on the question of limitation only by denying the alleged fraud. The Plaintiff was thereupon called to prove that he could not know of the gift because of some fraud played by the defendant, and this was the only issue framed in the case. No evidence whatsoever was led by the Plaintiff on the point and the suit was consequently dismissed by the trial Sub Judge. In appeal to the District Judge, some effort, at the first instance, was made to show that the Patiala Limitation (Custom) Act did not apply because the alienation was by a female and in that case it was not necessary to prove that the land was ancestral. But finding little force in the contention, the Appellant came forward with an application for amendment of the plaint. The application was, however, rejected and the appeal dismissed.

(2.) Shri Dalip Chand, the learned Counsel for the Appellant, frankly concedes before me that because of the admissions in the plaint to the effect that the land was ancestral and that the suit was governed by the Patiala Limitation (Custom) Act and no evidence having been led to prove the alleged fraud for extension of the period of limitation, the suit as framed and instituted was barred by time. He, however, urges that in fact the land is not ancestral and the Act, therefore, has no application to the case, and since the gift was by a female the Plaintiff was entitled to succeed even though it related to self-acquired property of the last male holder. For these reasons, he contends, he should have been allowed to amend the plaint and delete the admissions which were gratuitous and uncalled for and which were included in the plaint because of the mistake and defective knowledge of facts and law ol the counsel or the petition writer by whom it was drafted.

(3.) The prayer for amendment is strongly opposed by Shri Atma Ram on the ground that the application was very much, belated and the proposed amendment would change the character of the suit. It is argued that the Plaintiff would have succeeded in the case if he was able to prove the only material point that was contested by the parties and that the prayer for amendment was made when the Plaintiff failed to prove it and the issue was decided against him. The counsel, therefore, contends that the Plaintiff should not be allowed to set up a new case by deleting the admissions made by him in the plaint, particularly when he had stuck 'to them in the trial Court. The contention appears to have much force and I do not think the amendment can be allowed at this stage of the case. In the plaint it was categorically asserted that the land in dispute was ancestral and the Plaintiff's case, therefore, was governed by Patiala Limitation (Custom) Act. He pleaded fraud as a ground of exemption from the period of limitation provided by that Act. The Defendant accepted the averments made in the plaint as correct except that the suit was within time because of any fraud played by him. The fact that the property was ancestral was thus a common ground between the parties and it was also not disputed that the suit which was one to challenge the alienation of ancestral property was governed by the Patiala Limitation (Custom) Act. The Plaintiff now seeks to go back upon what he himself admitted in the plaint and wants to assert and prove that in fact the property is not ancestral and, there fore, the Act had no application to the suit. Initially he pleaded that his right to sue accrued on the date of the gift but since he was kept unaware of it by means of fraud played by the Defendant he could not bring a suit for declaration to set aside the gift within the time allowed by Article 1 of the said Act and therefore, his suit for possession was within time. Now in the amended plaint he wants to urge that the cause of action in fact arose on the death of the alienor and that since it was not necessary for him to bring a suit for declaration the suit for possession was within time. The amendment thus does not amount to a mere clarification of the position put forward in the plaint or rectification of any formal defect therein, as urged by the Appellant. The Plaintiff would be going back upon his own admissions and shall have to disprove facts which he himself asserted in the plaint. If any mistake in drafting the plaint had been committed by the counsel or the petition writer, the Plaintiff or his counsel would not have remained unaware of it when the issue was framed and the case was proceeding before the trial Sub-Judge. The Plaintiff stuck to his pleadings there and thought of applying for amendment when he got a decision against him and the case was being argued in appeal. Allowing amendment, which meant to change the nature of the suit, at that stage would have necessitated a remand and retrial of the case on totally different set of facts. I do not, therefore, think the learned District Judge was wrong or acted arbitrarily in refusing the amendment.