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Advocates
  • N.Saran
  • M.P.Bharti
  • K.P.Sinha
  • A.K.Verma
  • A.K.Choudhary
Judges
  • Madan Mohan Prasad, J.
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citation codes
Case Number
Advocates
  • N.Saran
  • M.P.Bharti
  • K.P.Sinha
  • A.K.Verma
  • A.K.Choudhary
Judges
  • Madan Mohan Prasad, J.
Acts
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Smart Summary

Judgment Summary — Madan Mohan Pd., J.

Factual and Procedural Background

This second appeal arises out of a suit for permanent injunction which was dismissed by the trial court and the lower appellate court.

The plaintiffs' pleaded case was that Baij Nath Lal, the original raiyat of the suit plot, sold the plot to his wife, Mossamat Kamli; she sold it to her daughter; the daughter sold it to the plaintiffs. The plaintiffs claimed to be in possession after their purchase. They alleged that the defendants were making false allegations that led to proceedings under Section 107 of the Code of Criminal Procedure, and that defendants had set up defendant No. 4 to make a false claim and attempt to construct a temporary shed on part of the land — hence the suit to maintain the status quo by permanent injunction.

Defendant No. 4 alone contested the suit. He claimed to have purchased the plot (or parts of it) from defendants 1–3 (sons of Baij Nath Lal) and from one Phulwanti for the remaining portion. He alleged that the sale deed executed by Baij Nath Lal in favour of Mossamat Kamli was a sham ("farzi") and that the sons had acquired interest; he claimed adverse possession for himself and predecessors and stated he had constructed rooms on the land.

The trial court found that the sale by Baij Nath Lal was not to his wife alone but also to defendants 2 and 3; that the transferee daughter had joint possession to the extent of the wife's interest; and that defendant No. 4 had acquired good title from defendants 2 and 3. However, the trial court found that the plaintiffs had not come into possession and dismissed the suit. On adverse possession it found against the defendants.

On appeal the lower appellate court agreed with the trial court: the plaintiffs acquired the interest of Mossamat Kamli to the extent of her share, defendant No. 4 acquired the interest of defendants 2 and 3, and a suit for mere injunction was not maintainable in the absence of proof of plaintiffs' possession.

The sole point advanced in the second appeal by the appellants was that, since the courts found the appellants had acquired part interest (although they had not come into possession), the suit should have been decreed to the extent of that interest for possession and a permanent injunction granted for that portion.

Legal Issues Presented

  1. Whether a suit framed and prosecuted as one for permanent injunction (on the basis that the plaintiffs were in possession) can be treated as, or converted into, a suit for possession and a decree for possession granted in respect of an interest found in favour of the plaintiffs despite their not being in possession.
  2. Whether, in the circumstances of this case, an amendment of the plaint should be permitted at a late stage so as to seek relief for possession (i.e., whether the court should allow a change that would substantially alter the nature of the suit and potentially prejudice the defendants).
  3. Whether the courts may rely upon or accept a third party's challenge to a document as "farzi" (a sham) by showing absence of consideration, and the consequences of a lower court not having adequately considered evidence on that point.

Arguments of the Parties

Appellants' Arguments

  • Although the suit was framed as one for permanent injunction, the courts below found that the plaintiffs had acquired a part interest in the property (the interest of Mossamat Kamli). Therefore, the appellants argued the court should have decreed possession to the extent of that interest and granted permanent injunction in respect of that portion.
  • Counsel relied on authorities to support the proposition that a court may grant a relief in substance even if the plaint is framed differently and that relief technically not prayed for may be granted if its substance appears in the plaint and no prejudice is caused to the other side.

Respondents' Arguments

  • The suit was not one for possession but only for permanent injunction predicated on the plaintiffs' being in possession; therefore a decree for possession could not be granted.
  • Several objections were raised to allowing possession relief: (a) a suit for possession at this stage would be time-barred (statute of limitations); (b) the plaintiffs came with a dishonest case — suppressing facts about the nature of the original sale; (c) no petition to amend the plaint had been filed at any stage; (d) the finding that the sale deed was "farzi" was vitiated by non-consideration of evidence and the courts below erred in refusing to admit a challenge to the passing of consideration; (e) granting possession relief would change the very nature of the suit and cause great prejudice to the defendants.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kedar Lal Seal v. Hari Lal Seal (A.I.R. 1952 S.C. 47) Where the substance of the claim in the plaint corresponds to a particular relief (e.g., a mortgage/subrogation relief) even if inartfully pleaded, the court should not defeat the claim on technicality when no prejudice results. Distinguished on facts: that case concerned a mortgage/subrogation relief effectively pleaded in substance; the court held the principle did not apply where the suit's nature would be changed and prejudice would result.
Nathaniel Uraon v. Mahadeo Uraon (A.I.R. 1957 Patna 511) Example where plaintiffs sued for possession and the court granted a decree for joint possession (altering form of relief but within substance of claim). Distinguished as factually different; not applicable to a suit framed solely for injunction where plaintiffs were not in possession.
Pandohi Ahir v. Faruq Khan (A.I.R. 1954 Allahabad 191) Illustrates a case where exclusive possession was sought but joint possession was granted — relief given in substance. Distinguished on facts and not treated as supporting conversion of an injunction suit into a possession suit without amendment or absence of prejudice.
Gangaram Ram Chandra v. Butra Sao (A.I.R. 1952 Nagpur 202) Held that a suit for exclusive possession in relation to joint family property could be treated as a suit for partition and possession of the portion determined to belong to the plaintiffs. Distinguished; facts differ and the principle does not permit changing the nature of the present suit for injunction into a suit for possession without appropriate procedures.
Tulsi Ahir v. Mossamat Sonia (1962 B.L.J.R. 261) Where a suit for declaration concerning a sale by a female (coparcenary property) was decreed also on the basis of a reversionary right implicit in the plaint. Distinguished; the present plaint did not sufficiently or implicitly seek possession and the circumstances (including suppression of facts) differ.
Prahlad Mohanti v. Prahlad Chandra Das (A.I.R. 1944 Patna 276) Where a plaintiff knowingly comes to court on false averments, he is not entitled to have his plaint amended at a late stage (in that case, at the stage of a second appeal); delay and deliberate suppression can bar amendment. Applied by this Court to refuse to permit amendment or to grant possession relief at the second appeal stage where plaintiffs had framed the suit to avoid proper characterization (and possibly court fees) and had suppressed facts.

Court's Reasoning and Analysis

The court framed the central enquiry as whether a suit for permanent injunction — predicated on the plaintiffs' possession and not framed as a suit for possession — can be treated in substance as a suit for possession and whether a decree for possession can be granted in such circumstances.

The court distilled two threshold considerations from the authorities and principles: (1) whether the relief the court proposes to grant is one which, in substance, was prayed for in the plaint; and (2) whether granting such relief would cause prejudice to the other party.

On the facts, the court observed that no application to amend the plaint had ever been made. An amendment would be necessary because the courts below were not called upon to decide title or to grant possession: the suit was framed only for injunction based on asserted possession. The court emphasized the settled principle that an amendment should not be permitted where it would change the very nature of the suit.

The court further found that the appellants had framed the suit in a way that suppressed material facts known to them — specifically, they alleged an exclusive sale by Baij Nath Lal to his wife though the sale deed showed transfers to his wife and also to two sons (defendants 2 and 3). The court noted a possible motive for this suppression: avoidance of payment of appropriate court-fees under Section 7(iv)(c) of the Court Fees Act, given the market value indicated by the sale deed. The court relied on Prahlad Mohanti v. Prahlad Chandra Das to support the proposition that a plaintiff who knowingly comes with false averments is not entitled to the indulgence of allowing an amendment at the stage of a second appeal.

The court also observed that the lower court had not fully considered evidence on whether the deed executed by Baij Nath Lal was a sham (farzi). The lower court had characterized the defendants' plea as not alleging a benami transaction but only that the deed was not acted upon, and had suggested the defendant (a third party) could not challenge the passing of consideration. The appellate judge disagreed: where a deed is alleged to be farzi, absence of consideration is relevant and a third party can raise that issue; consequently, the matter would require full reconsideration of the evidence de novo if possession relief were to be granted.

Granting the possession relief in the present circumstances would therefore (a) change the nature of the suit; (b) prejudice the defendants by requiring fresh pleadings and fresh consideration of evidence; and (c) potentially be vitiated on appeal because the question of the farzi character of the deed was not properly considered below. The court also noted that plaintiffs could have filed a suit for possession earlier (knowing they were transferees only of one of multiple transferees) and that such a suit would now be barred by limitation; further, the suit had been valued only at Rs. 200 for injunction despite the sale deed showing purchase at Rs. 800, which raised valuation and court-fee questions requiring fresh determination.

On balance, the court concluded that it would not be fair or just to the other party to permit amendment or to grant possession relief at this stage; there was no equitable basis to go to such lengths to provide plaintiffs relief they could have sought properly by a different suit.

Holding and Implications

APPEAL DISMISSED.

Direct effect on the parties:

  • The dismissal of the second appeal affirms the conclusions of the courts below: the suit for permanent injunction remains dismissed (subject to the terms already reached by the lower courts).
  • The court declined to grant a decree for possession in favour of the plaintiffs in this proceeding and refused to allow an amendment to convert the suit into one for possession at this stage.
  • The court made no order as to the costs of this appeal.

Broader implications: The opinion does not purport to create a new precedent beyond applying established principles — it emphasizes the limits on permitting amendments that change the nature of a suit, the relevance of suppression of material facts and court-fee valuation, and confirms that allegations of a deed being "farzi" can be raised by third parties where absence of consideration is shown. The opinion contains no extended pronouncement of novel law; it applies existing authority to the facts before it.

Appeal dismissed.
Show full summary ...

    Abdul Latif & Another v. Mahadeo Lal & Others

    Madan Mohan Pd., J.:— This second appeal arises out of a suit for permanent injunction which has been dismissed by both the courts below.

    2. The plaintiff appellants' case was as follows. One Baij Nath Lal is said to have been raiyat of the suit plot as his self acquired property. For some urgent necessities he is said to have sold this plot to his wife, Mossamat Kamli, who in her turn sold it to her daughter, who again sold it to the plaintiffs. The plaintiffs, therefore, claimed to be in possession of the suit land after their purchase. It has said the defendants were making false allegations leading to a proceeding under Section 107 of the Code of Criminal Procedure and that they had set up defendant No. 4 to make a false claim to the land and the said defendant tried to construct a temporary shed on the portion of the land and hence the necessity of the suit for maintaining the status quo.

    3. The suit was contested by defendant No. 4 alone who claimed to be the purchaser of the said plot from defendants 1 to 3, the sons of the aforesaid Baij Nath Lal. According to him, the, land was coparcenary property of Baij Nath Lal and his sons and he purchased a major portion of the plot in question from those defendants and the remaining portion from one Phulwanti to whom those defendants had sold that portion. His further case was that the sale deed executed by Baij Nath Lal in favour of Mossamat Kamli and his two sons was a farzi transaction and that inspite of it all the three sons of Baij Nath had acquired the property. He, therefore, alleged adverse possession of himself and his predecessors-in-interest as against the plaintiffs. He thus claimed to be in possession in his own right and to have constructed certain rooms on the land.

    4. The trial court found that the sale by Baij Nath Lal was not to his wife alone, but also to defendants 2 and 3. It further found that her transferee, that is, her daughter, came to be in joint possession as a result of the sale to her which was valid to the extent of the interest of Baijnath's wife. It further found that defendant No. 4 had also acquired a good title by the sale to him made by defendants 2 and 3, who were the original transferees from Baij Nath Lal. It, however, found that the plaintiffs had not come in possession and on that ground dismissed the suit. On the question of adverse possession it found against the defendants.

    5. The plaintiffs went up in appeal did not challenge the other findings except, that with regard to the validity and effect of the sale deed and the question of maintainability of the suit. The lower appellate court found agreeing with the court below that the plaintiffs had acquired the interest of Mossamat Kamli to the extent of her share in the property sold to her by Baij Nath Lal and the defendant No. 4, acquired the interest to the extent of the interest which defendants 2 and 3 had acquired by virtue of their sale deed. On the second point again concurring with the trial court, it found that the suit for mere, injunction was not maintainable in the absence of proof of possession of the plaintiffs.

    6. The only point which has been raised by learned counsel for the appellants in the second appeal is that the court having found that the appellants had acquired a part of the interest of the property and had not come into possession, it should have decreed the suit to the extent of that interest for possession and granted permanent injunction in respect of that portion. In support of the argument, it is said that plaintiffs' title having been found, they were entitled to possession and, therefore, there was no difficulty in the courts below decreeing possession upon their own findings. Learned counsel has placed reliance on a few decisions to support the proposition that even though the suit may be framed one way, the court may grant a decree in respect of some relief which is not prayed for. They are (1) Kedar Lal Seal v. Hari Lal Seal (A.I.R 1952 Supreme Court, 47), (2) Nathaniel Uraon v. Mahadeo Uraon (A.I.R 1957 Patna, 511). (3) Pandohi Ahir v. Faruq Khan (A.I.R 1954 Allahabad, 191), (4) Gangaram Ram Chandra v. Butra Sao (A.I.R 1952 Nagpur, 202) and (5) Tulsi Ahir v. Mossamat Sonia (1962 B.L.J.R 261).

    7. On the other hand, it has been contended by learned counsel for the respondents that the suit being not one for possession, but merely for permanent injunction on the assumption of the plaintiffs being in possession, it could not be decreed for possession for various reasons. Firstly, that the suit for possession at the present moment has become time barred; secondly, that the plaintiffs came to court with the dishonest case of the sale of the entire property to them exclusively by an alleged exclusive owner; thirdly, that no petition for amendment of the plaint was filed at any stage upto the present day; fourthly, that the finding in respect of the case of the defendants that the sale deed by Baij Nath Lal was a farzi transaction is vitiated by non-consideration of the evidence in that respect, and because there is a wrong finding of the court to the effect that the respondents were not entitled to challenge the payment of consideration and, therefore, lastly a re-opening of the matter, if at all, would require a reconsideration of the entire case and evidence on this point and fifthly, that it would change the very nature of the suit if such a decree were to be granted and that would be causing great prejudice to the defendants.

    8. Now coming to the argument raised by learned counsel, for the appellants it must be remembered that the basic facts alleged by him were that the entire land had been sold by Baij Nath Lal to his wife alone, who sold it to his daughter who in her turn sold it to the plaintiffs and consequently the plaintiffs came in possession. The courts were not asked to adjudicate upon any of these facts and declare the title of the plaintiffs or grant possession of the property. The suit was thus not for any of these purposes. It was framed merely as a suit for injunction against the defendants on the finding that they had no right to interfere with the possession of the plaintiffs. The question is whether such a suit could in substance be allowed to be treated as a suit for possession and if the court in such circumstances could grant a decree for pessession?

    9. I may as well state at the outset that the decisions on which reliance has been placed by learned counsel are entirely different on facts and the law laid down therein has no application to the present case. In (1) A.I.R 1952 Supreme Court 47 (Supra) the suit was in respect of a mortgage where the plaintiff claimed to have satisfied the mortgage and claimed to receive the balance and the learned Judges held that in substance the plaintiff had asked for a mortgage decree though the plaint was inartistically drafted. Therefore, though the plaintiff had not used the word ‘subrogation’ he had asked in substance for a relief to which a subrogee would be entitled and, therefore, the learned Judges said that a claim could not be thrown out on a mere technicality of the pleading when the substance of the plaint was there and no prejudice was caused to the other side.

    10. In (2) A.I.R 1957 Patna, 511 (Supra) the plaintiffs had sued for possession, the and the defendants being the descendants of common ancestors instead of granting a decree for ejectment, the court granted a decree for joint possession.

    11. In (3) A.I.R 1954 Allahabad 191 (Supra) again by the suit exclusive possession was asked for, but joint possession was given.

    12. In (4) A.I.R 1952 Nagpur 202 (Supra) also it was a suit for exclusive possession of properties belonging to the joint family and it was held that it could be turned into a suit for partition and possession of such share only as might be determined to belong to the plaintiffs.

    13. In (5) 1962 B.L.J.R 261 (Supra) the suit was for a declaration that a sale deed executed by a female was not binding on the plaintiffs because it was the coparcenery property. It was, however, decreed as a suit also on the basis of his reversionary right, the claim being said to be implicit in the plaint.

    14. It will thus appear firstly that the real question is whether the relief which the court is going to grant is one which in substance has been prayed for in the plaint and secondly whether it will cause any prejudice to the other party.

    15. Coming to the facts of the present case, firstly, no prayer for amendment of the plaint has been made nor was ever made. An amendment of the plaint would be obviously necessary for the simple reason that even though the courts below might have held that the plaintiffs got title by virtue of the sale deed, they were really not called upon to do so. The suit not being for possession at all, it is difficult to say how the courts could have granted possession, more so in a suit which was framed only for the relief of permanent injunction where the very fact which the plaintiffs had to prove was their possession.

    16. The question which next arises is whether in the absence of any prayer, in view of the arguments raised, should an amendment of the plaint be ordered for. In the circumstances of the present case, I am inclined to the view that it will not be fair or just to the other party for that would change the very nature of the suit and it is well settled that by an amendment one is not allowed to change the nature of the suit itself. Secondly, the appellants framed their suit in such a manner by suppressing certain facts which must have been within their knowledge in order to gain advantage. It was their case that the property had been sold by Baijnath Lal to his wife alone. It appears from the sale deed itself that Baijnath had transferred it not only to his wife but even to his two sons defendants 2 and 3 though not to his other son defendant no. 1. The appellants did not make out a case of being entitled only to a part of the property inspite of the sale deed and that is the reason why they did not invite the courts to adjudicate upon their title. There seems to be another reason for that, namely, avoidance of payment of court fees under Section 7(iv)(c) of the Court Fees Act on the market value of the suit land. It has been held by this Court in (6) Prahlad Mohanti v. Prahlad Chandra Das (A.I.R 1944 Patna 276) that where a person knowing all the facts comes to court on false averment, he is not entitled to any indulgence of having his plaint amended at the stage of second appeal. In that case the plaintiff was entitled to eject the defendants under a right conferred by Section 52 of the Bengal Land Revenue Sales Act, but he did not sue to eject the defendants on that ground. Therefore the learned Judge said that the circumstance that his claim under Section 52 had become barred by time at the stage when the second appeal was heard was also one reason why the plaintiff should not be granted the indulgence. The circumstances of the present case are similar and I respectfully concur in the view expressed by the learned Judge. There is yet another reason for not allowing this prayer. It appears that the court below did not consider the entire evidence in respect of the question as to whether the deed executed by Baijnath Lal in favour of his wife and two sons was a farzi transaction. The court below has said wrongly that “the plea of the defendants was not that it was farzi in the sense of being a benami transaction, but what has been alleged by him is that the deed was not acted upon”, and further that “as for the question of passing of consideration he (defendant) is a third party to the transaction and hence his challenge about passing of consideration cannot be accepted”. Here the defendant was undoubtedly challenging the transaction as a sham and colourable farzi transaction without any consideration. Thus generally speaking a third party is not entitled to raise the question but where the allegation is that a deed is farzi the question of passing of consideration is a relevant one and the question regarding the farzi character of a document can be raised not only by the parties to the document, but also by a third party and in such cases undoubtedly even a third party can show absence of consideration for the purpose of holding the deed to be a farzi one. If at all, the court below could have granted the decree as contended by learned counsel for the appellants in the absence of the consideration of the question of farzi that would have been of no avail and liable to be set aside by this Court. If this Court grants the indulgence to the plaintiff appellants, this matter will have to be gone through afresh. In fact, as I have said earlier, the nature of the whole suit would change and apart from that it would be necessary to give an opportunity to the defendant respondents to file a fresh written statement which would require a reconsideration of the entire matter de nevo. In the circumstances of the present case, it would not be a just and proper course to adopt. Lastly, it was open to the plaintiff appellants to file a suit for possession for they knew very well that they were transferees from only one of the person to whom the original transfer had been made by Baij Nath Lal. It is thus obvious that it was a deliberate act not to frame the suit in that manner and such a suit will now be barred by law of limitation. It is also obvious that they valued the suit only on the relief of injunction at the sum of Rs. 200/- and paid Court Fees thereon even though their sale deed showed that they had purchased the same for a sum of Rs. 800/-. Therefore, the question of valuation also will have to be determined afresh. To conclude, there does not appear to be any circumstance in equity as well which should impel the Court to go to this great length for allowing the plaintiffs to get the relief which they could have got by a different suit, but they did not ask for it.

    17. For the reasons aforesaid, the contention of learned counsel is untenable in the circumstances of the present case. This appeal is accordingly dismissed. In the circumstances of this case, however, I will not make any order as to costs of this appeal.

    Appeal dismissed.

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    Comments

    Abdul Latif & Another v. Mahadeo Lal & Others
    (Nov 19, 1975)