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Arundhati Mishra (Smt) v. Sri Ram Charitra Pandey .
Factual and Procedural Background
The appellant–plaintiff instituted a suit for possession and mesne profits in respect of a M.I.G. flat at Lucknow. The flat had originally been allotted to the respondent-tenant by the Lucknow Improvement Trust, later renamed the Lucknow Development Authority, at a monthly rent of Rs 30, of which Rs 24.50 was payable directly to the Trust/Authority and the balance to the appellant.
On 15 March 1971 the appellant served a notice under Section 106 of the Transfer of Property Act terminating the tenancy for non-payment of rent. In reply, the respondent denied the appellant’s title, alleging that the appellant was merely a benamidar and that the respondent was the real owner. The appellant later obtained a sale deed from the Authority in 1977 and, in 1978, issued a suit notice asserting that the respondent’s denial of title amounted to forfeiture of tenancy.
The respondent’s written statement persisted in claiming ownership and, by an application under Order VI Rule 17 of the Code of Civil Procedure, sought alternatively to claim compensation for improvements. After trial, the court held that the appellant had title, that the respondent had forfeited the tenancy by denying that title, and decreed possession and mesne profits in the appellant’s favour.
During the first appeal, the respondent applied (30 March 1989) for a further amendment to plead adverse possession. The appellate court rejected the application and confirmed the decree. In second appeal, a Single Judge of the Allahabad High Court allowed the amendment, set aside the concurrent findings and remitted the matter for a fresh trial. The present appeal to the Supreme Court is against that order.
Legal Issues Presented
- Whether, at the stage of second appeal, the respondent could be permitted to amend the written statement to introduce a plea of adverse possession.
- Whether the High Court erred in setting aside the concurrent findings of the trial and first appellate courts and remitting the case for fresh trial on the basis of the newly introduced plea.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 (1951 SCR 277) | Pleadings may contain mutually inconsistent or alternative pleas; amendments can be allowed at any stage if founded on the same cause of action and without prejudicing the other side. | The Court acknowledged the principle but stressed that each case depends on its facts, including delay, explanation, and prejudice, leading to refusal of amendment here. |
Court's Reasoning and Analysis
The Supreme Court framed the decisive question as whether the plea of adverse possession could appropriately be introduced at the second-appeal stage. It noted:
- Pleas of title and adverse possession are mutually inconsistent; adverse possession arises only when the claimant renounces his own title and openly asserts hostile possession.
- The respondent consistently claimed ownership from the outset and never acknowledged the appellant’s title, thereby negating the factual foundation for an adverse-possession defence.
- No explanation was offered for the late introduction of the plea; even if the respondent’s 1971 reply were treated as the first hostile assertion, limitation would begin only then, and the suit filed in 1978 was within the twelve-year period.
- Although precedent allows liberal amendment of pleadings, such discretion is conditioned by considerations of delay, explanation, prejudice, and limitation. On the present facts, those conditions were not met.
Consequently, the Court concluded that the High Court erred in permitting the amendment and in disturbing the concurrent findings of the lower courts.
Holding and Implications
Appeal Allowed; High Court judgment set aside; matter remitted to the High Court for disposal on merits in accordance with law; no order as to costs.
Immediate effect: the respondent cannot rely on the plea of adverse possession in further proceedings, and the High Court must decide the second appeal on the existing record. The decision is confined to the facts and does not establish a new legal precedent beyond reaffirming principles governing late amendments to pleadings.
Order
1. Leave granted.
2. This appeal arises against the judgment of the Allahabad High Court in Second Appeal No. 89 of 1990 dated December 21, 1992. The facts in a nutshell are that the appellant-plaintiff basing on title laid the suit for possession and mesne profits against the respondent. The respondent was inducted into possession of M.I.G flat allotted to her by the Lucknow Improvement Trust later renamed as Lucknow Development Authority. The rent was Rs 30 per month. It was covenanted that the respondent should pay every month a sum of Rs 24.50 to the L.I.T/L.D.A and the balance to the appellant. On March 15, 1971, the appellant got issued a notice under Section 106 of the T.P Act determining the tenancy for default committed in payment of the rent. Thereon, the respondent replied that the appellant was only his benamidar and he is the real owner of the property. The appellant paid the instalments and got the sale deed executed in 1977 by L.I.T or L.D.A Suit notice was issued in 1978 on the ground that the denial of the appellant's title constitutes forfeiture of the tenancy which the respondent had with the appellant. The respondent reiterated in his written statement that he is the real owner and remained in possession as owner of the suit house and the appellant is only benamidar. The respondent also later filed an application under Order 6 Rule 17, CPC to add para 21-A claiming alternatively compensation for the improvements made by him. Framing appropriate issues and on adduction of evidence, the trial court found that the appellant has title to the property, by denial of the title, the respondent forfeited his tenancy and decreed the suit. Pending first appeal, the respondent filed another application on March 30, 1989 for amendment of the written statement setting up the plea of “adverse possession”. The appellate court rejected the application, considered the case on merits and confirmed the decree of the trial court. In the second appeal the learned Single Judge considered and allowed the application for amendment, set aside the findings of the courts below and remitted the case to the trial court for fresh trial. Thus this appeal by special leave.
3. It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad AIR 1951 SC 177, 1951 SCR 277 that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisites are that the delay in making the application; the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted.
4. The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs.
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