BADRI PRASAD Vs. RAM PRASAD

JUDGEMENT

(1.) THIS is a civil regular second appeal by the plaintiffs in a suit for declaration and possession which has been dismissed by both courts below for reasons presently to be mentioned. But before I deal with the case on the merits, I feel bound to point out that this is a typical case where rules of procedure have been allowed to override the dictates of justice and for no valid reason whatsoever.

(2.) THIS litigation was started on the 11th April, 1947. The dispute is about a certain piece of land measuring 15 yards by 11 yards situate in the town of Bari in mohalla Sarai which was shown as 'a' in a rough sketch incorporated under paragraph one of the plaint. The plaintiffs put their case in this way. It was alleged that they were the owners in possession of plot B and that there was another plot a to the south of it: but as appears from the proceedings which took place subsequent to the riling of the plaint, the plot A which is in dispute is to the north of the plot B and a good deal of confusion seems to have been caused in this case because of this apparent but unfortunate mistake. The case of the plaintiffs further was that both these plots belonged to one Chena. In Svt. 1907, Chena is alleged to have granted a usufructuary mortgage of it for a sum of Rs. 65/- to one Sadasukh, and the latter's son Kalla it is said transferred his mortgagee rights to the grandfather of the plaintiffs on Kati Vadi 5 Svt. 1957, as a result of which they came in possession of this plot, that is, plot B. As regards the plot A, the case of the plaintiffs was that they were also in occupation of this plot which lay adjacent to the other plot B and that they had later purchased it from the heirs and successors of Chena, the original owner by a document dated the 28th November, 1945. The plaintiffs' grievance was that the contesting defendant Ramprasad on a representation that this land belonged to the Town council of Bari obtained a sale of it from the latter. The date of the sale is not mentioned in the plaint; but it appears from the allegations made therein that it must have taken place some time before 1941. The plaintiffs raised an objection before the Town Council but they were directed to have their rights decided in a competent Court of law. Consequently, the plaintiffs instituted the suit, out of which this appeal arises, for a declaration that the Town Council of Bari had no right to sell the land in question, and, therefore, the sale made by it in favour of the defendant Ramprasad was void and inoperative against the plaintiffs. It may be pointed out at this place that the plaintiffs did not make any prayer for possession in the plaint as was originally filed but by an amendment thereof they included this prayer, also and this amended plaint was filed in Court on the 27th january, 1954. The plaintiffs besides impleading Ramprasad as a defendant also impleaded the Secretary of the Town Council Bari as a party defendant. It is unfortunate that the case made no progress whatever until the beginning of 1954. The Secretary, Town Council, Bari, did not file any written statement and the suit was contested by the other defendant Ramprasad only. I shall hereinafter refer to ramprasad as the only defendant in the case for facility of reference.

(3.) THE defence of Ramprasad was that the plaintiffs had no right or title to the land in dispute and that it belonged to the Town Council. He seems to have admitted, however, that the plot B had been under mortgage with the plaintiffs and that the defendant had filed a suit for pre-emption with respect to the sale which had been obtained in respect of that plot by the plaintiffs and that suit was pending. The defendant also contended that the plaintiffs had not described the boundaries of the plot in dispute in their plaint and that it did not really disclose any cause of action. There is no doubt that the plaint in this case was a rather badly drafted one and this has led to much of the trouble which has arisen in this case during all these years. At the time the case came up for framing of issues some time in the month of October or November, 1954, it seems to have been realised that there were certain defects in the plaint and that the plaintiffs should be asked to furnish further and better particulars of their claim. On the 6th January, 1955, the plaintiffs filed an application in which they gave these particulars and also sought therein permission for amending the plaint. As this was a joint application and was not permitted by the rules, the trial Court rejected it by its order dated the 11th February, 1955, and directed the plaintiffs to file separate applications in the matter by the 18th February, 1955. The Court made it clear in its order that if the plaintiffs wished to amend their plaint, it would be open to them to file a separate application for that purpose. It appears from the record that copies of two applications, one containing further and better particulars and the other seeking permission to amend the plaint which were intended to be moved in Court were handed over to learned counsel for the defendant on the 18th February, 1955, but these were actually filed in Court on the 22nd February, 1955.