I. S. ISRANI, J. - (1.) THE above mentioned 3 appeals are decided togather by this one judgment as common point of law and similar facts are involved in all the 3 appeals.
(2.) IT will suffice to state for the purpose of these appeals that the plaintiff-appellant instituted 3 suits in the court of Munsiff, Bharatpur in the year 1969, alleging therein that he had purchased a plot of land with some construction thereon for consideration of Rs. 10,000/- on 7. 5. 69 from Smt. Harbansh Kumari, who had purchased the same from the Custodian Department, wherein it was recorded as evacuee property. All these appeals arise out of this suit. IT was alleged that the respondents had encroached upon a part of this land and raised some constructions thereon. IT was further stated that Smt. Harbansh Kumari had & also given right to the plaintiff-appellant to take legal steps for obtaining possession of the land unlawfully encroached upon by the respondents. A notice was given to the respondents by the appellant through his advocate to remove the encroachment and ultimately the above suits were instituted in the trial court against the respondents. The respondents in their written statements denied the allegations of the plaint and pleaded that the land in dispute was part of the Nazul land, for which Harbansh Kumari had no right to sale to the appellant and that the sale was false, sham, void and ineffective against them and the appellant did not become owner of the land by the said sale deed. It was also pleaded that the land was not evacuee property and never vested in the custodian department nor the custodian had taken over the same under its control. It was further alleged that the respondents were in possession of the land in dispute as owners, and that Municipal Board, Bharatpur sold 650 sq. yards of land by auction to Madan Lal for consideration vide sale proclamation dated 22. 6. 67, which was accepted by the Municipal Board. Respondent Gopal Prasad further alleged that he had purchased the land mentioned in para 2 of the plaint in 1958-59 from Madan Lal by a registered sale deed and thereafter took loan and raised constructions on the same after obtaining permission in the same year and since then he is in its occupation. Respondent Shanker Lal in addition to the above allegations, also stated that he purchased a piece of land measuring 45'x37' from respondent Gopal Prasad on 30. 5. 61 for consideration of Rs. 100/ -. Respondent Dr. Prem Singh, in addition, also alleged that he was owner of a portion of the land in dispute, which he had purchased from Dr. Fateh Singh. Learned trial court framed as many as 13 issues and after recording evidence and hearing parties, decreed all the 3 suits against the respondents. During the pendency of appeals the respondent filed applications under O. 6 R. 17 C. P. C. praying for amendment in their written statements. It was prayed by the respondents in their respective applications that they may be permitted to incorporate in the written statements that the appellant or his predecessor in title Harbansh Kumari or the custodian did not have possession over the disputed land and even within 12 years of the filing of the suit the possession of the disputed land was not with them. It was prayed that they may also be permitted to plead in the written statement by way of amendment that since the respondents had raised constructions oyer the disputed land, on which they have spent several thousands of rupees, there fore, the appellant was not entitled to take possession of the disputed land, but only to receive compensation regarding the same. It was also stated in the said applications that the question regarding the appellant or his predecessors in title or ustodian did not have possession over the disputed land nor they were in possession of the land 12 years immediately before filing of the suit, was raised in the trial court. This point was also considered by the trial court, but it was prayed that they may be permitted now to incorporate this plea by way of amendment in the written statements. The appellant filed reply to these applications and opposed the applications for amendment and contended that the respondents had deliberately raised constructions unlawfully on the disputed land knowing fully well that they were not its owners, nor any reason has been stated in the applications for amendment why these pleas were not raised in the written statements in the trial court. The first appellate court, after hearing both the parties, allowed the applications for amendment, set-aside the judgments and decrees of the trial court in all the 3 suits and remanded the matter directing that the written statements may be permitted to be amended, new issues may be framed, both the parties be allowed to record their evidence and thereafter after hearing both the parties, the matter may be decided afresh. The contention of Shri R. P. Garg, learned counsel for the appellant is that the respondents came out with a case that they were bona-fide purchasers of the disputed land and denied the ownership of Harbansh Kumari as also the possession of the custodian department over the disputed land. It was alleged that the disputed land was not an evacuee property. However, the respondents failed to prove either of the pleas raised by them and the suits filed by the appellant against each of the respondents were decreed. It was further pointed out by the learned counsel that all the respondents from the very biginning knew that they were in unauthorised and unlawful possession of the disputed land, but still preferred to raise constructions over the same with a view to garb the land illegally. It is further pointed out that it is clear from Ex. 15 in appeal No. 15/80 filed against respondent Gopal Prasad, who was employed in Municipal Board, Bharatpur, that he wrote a letter dated 2. 4. 65 to the Managing Officer-cum-Assistant Custodian, Evacuee Properties, Alwar, in which it has been clearly stated by him that the evacuee properly sold to Harbansh Kumari is near his house and that the same may be sold to him instead of Harbansh Kumari. It is, therefore, contended that even though it was equally within the knowledge of all he respondents that the disputsd land was in evacuee property and in possession of the custodian department, still false pleas were raised legarding the ownership of the same in their written statements and fraud was committed, to fabricate the evidence, mis-guide the court and garb the land, which was in their possession illegally and unlawfully. It is further contended that it is clear from the facts and circumstances that the amendment which has been sought 9 years after the suit were filed, has been prayed only with a view to prolong the litigation and forestall the appellant from getting the fruits of the decrees, which have been passed in his favour. It is further contended that the respondents wanted to introduce new case by way of amendment in the written statements, which will involve complete retrial of the suits, which were filed as early as 1969. It is also pointed out that the amendment applications are mala-fide and have been brought with the intention of prolonging the litigation, which has already consumed 19 years. Reliance has been placed on the case of Haji Mohd. Ishaq vs. Mohammed Iqbal (1) in which the amendment at the appellate stage was not allowed by the Apex Court and it was pointed out that the amendment of the written statement sought in appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The same view was taken in the case of M/s Modi Spinning & Wiving Company Ltd. Vs. Ladha Ram & Company (2 ). Shri A. K. Gupta, learned counsel appearing for the respondents has supported the impugned judgments and orders and pointed out that the amendments are permitted even at the stage of second appeal. It is also pointed out by the learned counsel that merely because the plea regarding adverse possession was raised and considered by the trial court shall not debar the respondents from raising the same by way of pleadings in the written statements. It is further submitted that inconsistent pleas are permitted to be raised in the written statement and if proposed amendment is not allowed, the rights of the respondents will be prejudiced and they will suffer great loss. It is also contended that the application is bona-fide and has been made with a view to get the rights of the respondents decided through court of law. Reliance has been placed on Jai Jai Ram Manohar Lal Vs. National Building Material Supply (3) in which it was held by the Apex Court that while considering the amendment of plaint, the application for amendment should not be refused on technical grounds. In Nichal Bhai Ballabh Bhai Vs. Jaswant Lal (4) it was held that the amendment of the plaint should be allowed to avoid multiplicity of the suits. In Pregonda Vs. Kalgonda (5), it was pointed out by the Apex Court that two conditions ought to be satisfi-ed; firstly, it does not cause injustice to the other side, and secondly, that the same was necessary for the purpose of determining the real questions in contro-versy between the parties. I have heard learned counsel for both the parties and have also perused the impugned judgments of both the courts below as well as the record of the cases.
(3.) THE respondents have come with a clear cut case in the written statements that they were bona-fide purchasers and therefore owners of the disputed land and that it was not an evacuee property. THErefore, the custodian had no right to sell the same to Harbansh Kumari who in turn could not sale the disputed land to the appellant. Thus, the appellant had no title whatsoever to the land in dispute, even the names from whom the respondents purchased the land, were given. If the respondents wanted to raise any inconsistant plea they could have raised the same in their written statement itself. THE plea regarding adverse possession and that the custodian department was not in possession of the disputed land was admittedly raised in the trial court, which was rejected after due consideration. Ex. 15 in appeal No. 15/80 clearly shows that the respondents had full knowledge of the fact that the land in dispute was evacuee properly and in possession of the custodian department, therefore, respondent Gopal Prasad wrote this application to the Managing Officer-cum-Assistant Custodian, Evacuee Properties, Alwar, praying that the disputed land may be sold to him and not to Harbansh Kumari. This shows that the respondents deliberately raised false pleas and produced fabricated evidence in the trial court to garb the land, which was rightly sold by the Custodian department to Harbansh Kumari, who sold the same to the appellant for consideration. This clearly shows that the application which has been filed as late as about 9 years from the date of the suits, cannot be termed to be a bona-fide application. THEre was nothing to stop the respondents from raising whatever inconsistant pleas they wanted to raise in the written statement. However, they preferred to do so after the suits filed by the appellant were decreed, evidently with a view to see that they are able to drag the litigation for as long as they could manage to do so by keeping the litigation pending as long as possible in various courts. The law cited by the learned counsel for the respondents is hardly of any help to him. In the matter of Jai Jai Ram (supra), the plaintiff, who was Manager of Joint Hindu Family filed a suit under a business name and an objection was taken by the defendant that the firm being unregistered firm, was incompetent to sue. Therefore, the application for amendment of the plaint stating that he-himself had intended to file the suit and had in fact filed the action on behalf of the family, in the business name, may be allowed. It was held by the Apex Court thai the mis-description was on account of bona fide mistake and the amendment deserves to be allowed. In the case of Nichal Bhai (supra), the matter under consideration before the Apex Court was whether a son could pot amend a suit for partition of joint family property in the absence of assent of his living father. In the third paragraph of the plaint, the plaintiff had stated that we were and are members of a joint and undivided family". The plaintiff made an application for amending* this paragraph stating that the words "and are" had graphed inadvertantly and should be allowed to delete the same. It was held that the High Court rightly allowed the amendment prayed by the plaintiff, which would avoid multiplicity of the suits. Applying the principle laid down by the Apex Court in the case of Pregonda (supra), I am clearly of the opinion that the amendment sought for is not at all necessary for determining any real controversy between the parties, rather the amendment is sought only with a view to carry on the litigation endlessly. If such applications for amendment are allowed, it is bound to cause injustice to the other side. If the amendment sought for is permitted, it would introduce totally a new case and the respondents shall adduce evidence in respect of the facts stated in the application for amendment. It is true that the courts should be liberal in allowing the parties to amend their pleadings provided they are intended to serve the ends of justice, which is not the case in the matters under consideration. ;