Decided on November 22,1967

PURANSINGH Respondents


- (1.) THIS is a second appeal by the plaintiff whose suit has been dismissed by the Courts below.
(2.) THE plaintiff's case in the plaint which was presented on 7-4-1961 was that he was Bhumiswamy of the suit lands and was in possession for the last twenty years, that the defendants nearly a year before trespassed on the lands and caused loss to the plaintiff by committing theft of his crop and a criminal case instituted against them is pending, that he was still in possession but as the defendants were again threatening to take forcible possession, he should be granted a decree of permanent injunction against them. THE defendants in their written statement denied the title of the plaintiff and pleaded that they never committed any act of trespass or theft and the criminal case against them was false, that they have been in possession of the suit lands for a long time and the plaintiff was never in possession and that the plaintiff was not entitled to the relief claimed by him. THE plaintiff in his deposition which was recorded on 21-9-1962 stated that the defendants by their acts of trespass and other unlawful acts dispossessed him two years before. THE trial Court in its judgment which was delivered on 30-9-1963 held that the plaintiff was Bhumiswamy of the suit lands and that he was in possession till three years before (i. e. till 1960) when he was dispossessed by the defendants. THE Court further held that as the plaintiff was out of possession, he should have claimed the relief of possession and was not entitled to the relief of permanent injunction. THE plaintiff's suit was, therefore, dismissed. He then went in appeal to the Court of the Additional District Judge, Sehore. During the pendency of his appeal in that Court, he filed an application on 17-8-1966 under Order 6, rule 17 of the Code of Civil Procedure for permission to amend the plaint and to incorporate in it an averment of dispossession in 1960 and a relief for possession. THE Additional District Judge has rejected this application and has dismissed the appeal. In this second appeal, Shri Jakatdar, the learned counsel for the appellant, has raised only one contention that the application for amendment should have been allowed. The Additional District Judge in disallowing the plaintiff to amend the plaint, has given the following reasons :- (i) the plaintiff was aware of the fact of his dispossession which he now seeks to introduce in the plaint; (ii) the prayer for amendment was a belated one; (iii) the amendment seeks to introduce a different cause of action, and (iv) granting of amendment would involve a fresh trial with fresh pleadings and fresh evidence.
(3.) IN my view, the aforesaid reasons stated by the learned Additional District Judge in his order are not good reasons in law. I have already mentioned that the plaintiff did state in the plaint that in 1960 the defendants committed acts of trespass and theft of his crop. According to the case as laid in the plaint, the plaintiff (more correctly his counsel) did not think that these acts of trespass or theft resulted in his dispossession. I cannot blame the plaintiff or his lawyer for this lapse. Even jurists have failed to give universally acceptable definition of possession. "The search for a unitary concept of possession in the law is one doomed to frustration;" (Paton's Jurisprudence, pp. 493, 500). Holmes, a great jurist and a great judge, defined possession as follows:- "When we say of a man that he has possession, we affirm directly that all the facts of a certain group are true of him, and we convey indirectly or by implication that the law will give him the advantage of the situation. Contract, or property or any other substantive notion of the law, may be analyzed in the same way, and should be treated in the same order. The only difference is, that, while possession denotes the facts and connotes the consequence, property always, and contracts with more uncertainty and oscillation, denote the consequence and connote the facts." (The common Law, pp. 169, 170.) Writing about this definition, Paton says " Holmes saw one important aspect of the complicating factors concerned", "but he produced, none less, an oversimplification which having shed some light, obscured further investigation;" (Jurisprudence, 3rd Edn., p. 523). According to him:- "One might describe 'possession' as a word which serves as a useful symbol to refer to the link between diverse conditions of facts and equally diverse conditions in law." (Jurisprudence, 3rd Edn., p. 523.);

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