Thursday, January 29, 2026

Illegal encroachers of Government poramboke land, irrespective of the length of possession or payment of municipal taxes, do not fall within the definition of “land owner” or “holder of land” under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and therefore cannot claim acquisition or compensation under the said Act.

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LAND ACQUISITION — Act 30 of 2013

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Applicability — Encroachers — Government land.

Persons in illegal occupation of Government poramboke land do not acquire any right, title or interest merely by long possession and are not entitled to invoke the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
(Paras 26, 28, 30)

Encroachment — Long possession — Effect.

Continuous, uninterrupted or long-standing possession of Government land for several decades does not legalise encroachment nor confer ownership or compensatory rights.
(Paras 21, 26)

Section 3(r) — “Land owner” — Interpretation.

Only persons having clear title, patta rights, assigned land rights, forest rights, or persons declared as owners by competent court or authority fall within the definition of “land owner” under Section 3(r) of the Act.
Encroachers without title documents do not fall within its ambit.
(Paras 23, 29)

Section 3(n) — “Holding of land” — Scope.

Occupation without lawful title or recognised interest does not amount to “holding of land” under Section 3(n) of the Act.
(Paras 6, 23, 29)

Payment of property tax — Electricity and water connections — Effect.

Assessment to property tax, payment thereof, or grant of electricity and municipal water connections does not confer legal title or transferable ownership rights over Government land.
(Paras 6, 10)

Government poramboke land — Canal land — Burial ground.

Occupation of land classified as canal land, burial ground or poramboke land remains illegal and objectionable, irrespective of duration of occupation.
(Paras 14, 22, 26)

Land acquisition — Obligation of State — Scope.

Authorities are not statutorily obligated to acquire Government land occupied by encroachers under Act 30 of 2013 for the purpose of paying compensation.
(Paras 20, 28, 30)

Eviction — Due process — Requirement.

Even encroachers are entitled to issuance of notice and adherence to due process of law prior to eviction.
(Paras 7, 27)

Public purpose — Railway Over Bridge (ROB).

Construction of Railway Over Bridge undertaken to ease traffic congestion constitutes public purpose.
(Para 11)

Humanitarian rehabilitation — Effect.

Allotment of alternate housing to encroachers on humanitarian grounds does not confer legal right to claim compensation under the Land Acquisition Act.
(Paras 16, 27)

Contempt proceedings — Effect of dismissal of writ petitions.

When writ petitions themselves fail on merits, contempt cases alleging non-compliance do not survive and are liable to be dismissed.
(Para 31)

Result.

Writ petitions and contempt cases dismissed — No costs.
(Paras 31–32)

ANALYSIS OF FACTS

1. Nature of batch

Multiple writ petitions and contempt cases
Filed by residents of Gunadala area, Vijayawada

2. Relief sought

Petitioners sought:

Declaration that proceedings dated 04-07-2023 rejecting compensation were illegal
Direction to initiate acquisition proceedings under Act 30 of 2013
Payment of compensation under the Right to Fair Compensation Act

3. Petitioners’ case

Occupation of land in Sy.No.284/4
Possession claimed for 100 years or more
Property inherited from ancestors
Area merged into Vijayawada Municipal Corporation in 1981
Property assessed to tax
Electricity and water connections provided
Eviction proposed for Railway Over Bridge (ROB)

Petitioners contended:

They are land holders under Sections 3(n) and 3(r)
Eviction only possible through land acquisition
Long possession creates entitlement to compensation

4. Respondents’ case

Authorities contended:

Land is Government poramboke
Classified as:
- Canal land
- Burial ground
- Rivas canal
No patta or title documents produced
Some claims based on unregistered agreements of sale
Property tax and utility connections do not confer title
Encroachers not entitled to Act 30 of 2013 benefits
Alternate housing already provided under JNNURM scheme

5. Rehabilitation measures

118 affected structures
114 identified as encroachers
88 houses allotted
26 houses to tenants
Flats allotted through lottery system

ANALYSIS OF LAW

1. Scope of Act 30 of 2013

The Court analysed:

Section 3(r) — definition of land owner
Section 3(n) — holding of land
Section 27 — determination of compensation

The Act protects:

Lawful owners
Assigned landholders
Patta holders
Persons recognised by court or statute

It does not extend to:

Illegal occupants
Encroachers on Government land

2. Long possession

The Court categorically held:

An encroacher remains an encroacher irrespective of possession for decades.

Possession:

Not permissive
Not legalised
Creates no equity

3. Payment of taxes

The Court reaffirmed settled law:

Property tax ≠ title
Electricity ≠ ownership
Water connection ≠ vested right

4. Public purpose

Construction of ROB:

Undertaken in public interest
Necessitated due to traffic congestion
Does not mandate compensation to encroachers

5. Due process protection

While denying compensation, the Court protected:

Right to notice
Compliance with eviction procedure

6. Division Bench precedent applied

Reliance placed on:

G. Ramunaidu v. Principal Secretary, Revenue Dept.
(WP No.43730 of 2016 batch, decided 21-03-2025)

Holding:

Encroachers without patta or title cannot be treated as land owners under Act 30 of 2013.

RATIO DECIDENDI

The binding ratio of the judgment is:

Illegal encroachers of Government poramboke land, irrespective of the length of possession or payment of municipal taxes, do not fall within the definition of “land owner” or “holder of land” under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and therefore cannot claim acquisition or compensation under the said Act.

When parties admittedly are governed by an arbitration clause and arbitration proceedings were pending prior to institution of the civil suit, the civil court has no jurisdiction to entertain the suit, and the dispute must be referred to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996.

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ARBITRATION AND CONCILIATION ACT, 1996 — Section 8

Civil suit filed during pendency of arbitration — Maintainability — Jurisdiction of civil court — Ouster — Effect.

Where the dispute between the parties was admittedly pending before the arbitrator since the year 2007 and the arbitration proceedings were in progress, institution of a civil suit in the year 2011 seeking permanent injunction restraining enforcement of partner’s share of profit and loss is not maintainable.
(Paras 22, 26, 29)

Section 8 — Mandatory reference to arbitration — Scope of court’s discretion.

Once existence of arbitration clause and pendency of arbitral proceedings are admitted by both parties, the civil court has no jurisdiction to adjudicate the dispute and is bound to refer the parties to arbitration under Section 8 of the Act.
(Paras 26, 28, 29, 30)

Section 8(2) — Filing of original arbitration agreement — Non-production — Effect.

Where it is the specific plea of the defendant that the original partnership deed containing arbitration clause is with the plaintiff, and such plea is not disputed by the plaintiff, non-production of the original arbitration agreement does not defeat the application under Section 8.
(Paras 16, 17)

Code of Civil Procedure, 1908 — Order VII Rule 11 — Rejection of plaint — Arbitration dispute.

Disputes governed by arbitration clause do not attract rejection of plaint under Order VII Rule 11 CPC; at best, the matter has to be referred to arbitration under Section 8 of the Arbitration and Conciliation Act.
(Para 32)

Arbitrability — Partnership disputes — Share of profit and loss.

Dispute relating to enforcement or restraint of partner’s share of profit and loss in a partnership firm is a dispute arising out of contractual relationship and is arbitrable in nature.
(Paras 20, 26)

Rights in personam — Arbitrability.

Disputes concerning inter se rights of partners fall within rights in personam and are amenable to arbitration.
(Paras 18, 19, 20)

Fraud allegations — Effect on arbitration.

Allegations of fraud, criminal wrongdoing or statutory violation do not detract from the jurisdiction of the arbitral tribunal to decide disputes arising out of civil or contractual relationships.
(Paras 25, 26, 31, 33)

Section 16 — Kompetenz-Kompetenz.

Arbitral tribunal is competent to rule on its own jurisdiction, including objections as to existence or validity of the arbitration agreement, and civil court cannot assume such jurisdiction.
(Para 26)

Parallel proceedings — Bifurcation — Not permissible.

Permitting one part of the dispute to be decided by arbitral tribunal and the other by civil court would lead to delay, multiplicity of proceedings, increased cost of litigation, and possibility of conflicting judgments.
(Paras 29, 34)

Second Appeal — Section 100 CPC — Scope.

High Court cannot interfere with concurrent or appellate findings of fact unless findings are contrary to mandatory provisions of law, settled legal principles, or based on no evidence or inadmissible evidence.
(Para 14)

Substantial question of law — Absence.

Where the dispute is admittedly covered by arbitration clause and proceedings were pending even prior to institution of suit, no substantial question of law arises for consideration in second appeal.
(Para 35)

Result.

Second appeal and cross objections dismissed — Judgment of First Appellate Court directing reference to arbitration confirmed.
(Para 36)

ANALYSIS OF FACTS

1. Parties

Plaintiff / Appellant:
Voona Sarveswara Rao — Managing Partner
Defendant / Respondent:
Andhravarapu Govinda Rajulu — Partner holding 20% share

2. Nature of dispute

Firm: M/s. Ajantha Real Estates, Srikakulam
Registered partnership
Partnership deed contained arbitration clause

3. Arbitration proceedings

Arbitration initiated in 2007
Arbitrator appointed
Proceedings in progress
Evidence stage reached

This fact was admitted by both parties.

4. Civil suit (2011)

Plaintiff filed O.S. No.04 of 2011 seeking:

permanent injunction restraining the defendant from ever claiming or enforcing his 20% share of profit and loss in the firm.

5. Interlocutory application

Defendant filed:

I.A. No.375 of 2017
Under Order VII Rule 11 CPC r/w Section 8 of Arbitration Act
Prayer: rejection of plaint.

6. Trial Court

Allowed I.A.
Rejected plaint.

7. First Appellate Court

Modified order:
- Held plaint cannot be rejected
- Directed reference to arbitration under Section 8

8. Second Appeal

Plaintiff challenged appellate decree on grounds:

Section 8 application filed belatedly
Arbitration agreement not produced
Written statement already filed
Civil suit maintainable

ANALYSIS OF LAW

A. Section 8 — Mandatory nature

The Court reiterated:

Language of Section 8 is peremptory
Once arbitration clause exists, court must refer parties to arbitration

(Paras 28–30)

B. Pendency of arbitration prior to suit

Critical factual finding:

Arbitration pending since 2007
Suit filed in 2011
Plaintiff admitted pendency

Therefore:

Civil court jurisdiction stood excluded even before suit was filed.

(Paras 22, 26, 29)

C. Non-filing of arbitration agreement

Court held:

Defendant pleaded original deed with plaintiff
Plaintiff never disputed possession
Arbitration proceedings already ongoing

Hence:

Non-production of deed not fatal.

(Paras 16–17)

D. Arbitrability of partnership disputes

Dispute concerned:

Share of profits and losses
Inter se rights of partners

Held to be:

Contractual
Rights in personam
Fully arbitrable

(Paras 18–20)

E. Fraud plea

Even assuming allegations of fabrication:

Arbitrator competent to decide
Section 16 empowers tribunal

Civil court cannot assume jurisdiction.

(Paras 25–27, 31, 33)

F. Section 100 CPC limitation

High Court emphasized:

Second appeal confined only to substantial questions of law
No perversity or legal violation shown

(Para 14)

RATIO DECIDENDI

The High Court held:

When parties admittedly are governed by an arbitration clause and arbitration proceedings were pending prior to institution of the civil suit, the civil court has no jurisdiction to entertain the suit, and the dispute must be referred to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996.

Monday, January 26, 2026

REGISTRATION ACT, 1908 — Section 49 — Unregistered document — Collateral purpose An unregistered document, even if compulsorily registrable, may be looked into under the proviso to Section 49 for the limited collateral purpose of: proving severance in status, or showing nature and character of possession, provided the document does not itself effect the partition. (Paras 24–25)

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REGISTRATION ACT, 1908 — Sections 17(1)(b) & 49 — Partition — Document recording past partition — Registration — When not required

A document which merely recites or records a partition already completed does not itself create or declare rights in immovable property and therefore does not require registration under Section 17(1)(b) of the Registration Act.
(Paras 19–22)

REGISTRATION ACT, 1908 — Section 17(1)(b) — Instrument of partition — Test

For attracting compulsory registration, the document must by its own force operate or purport to operate to create or declare rights in immovable property.
A mere recital of what has already taken place cannot be construed as an instrument of partition.
(Paras 20–21)

PARTITION — Nature — Continuing state of facts

Partition, unlike sale or transfer, is not a single act but a continuing state of facts.
If parties actually divide their estate and agree to hold in severalty, partition is complete even without any document.
(Para 23)

PARTITION — Oral partition — Validity

Partition may validly be effected orally.
If the oral partition is subsequently reduced into writing, registration is required only when the writing itself is intended to effect the partition.
(Paras 21–22)

DOCUMENT — Mere list of properties — Instrument of partition — Distinction

A mere list of properties allotted to the respective shares of parties does not constitute an instrument of partition and does not require registration.
Such list is admissible in evidence as it only records past events.
(Paras 21–22, 26)

REGISTRATION ACT, 1908 — Section 49 — Unregistered document — Collateral purpose

An unregistered document, even if compulsorily registrable, may be looked into under the proviso to Section 49 for the limited collateral purpose of:

proving severance in status, or
showing nature and character of possession,

provided the document does not itself effect the partition.
(Paras 24–25)

COLLATERAL TRANSACTION — Meaning

Collateral transaction means a transaction independent of the creation or declaration of rights in immovable property and not required by law to be effected by a registered instrument.
(Para 24)

FAMILY ARRANGEMENT — Settlement of competing claims

Where parties set up competing claims and disputes are resolved by mutual settlement on the footing of antecedent title, the arrangement does not amount to transfer of property and does not fall within the mischief of Sections 17 and 49 of the Registration Act.
(Paras 27–29)

FAMILY SETTLEMENT — Equity — Judicial approach

Family arrangements entered into to preserve peace and amity in the family must be upheld by courts and construed liberally.
(Paras 28–29)

REGISTRATION ACT — Effect of non-registration

If a writing itself embodies the expression of will effecting partition and is intended to be the sole repository of rights, registration is compulsory; failing which, Section 49 bars its admission in evidence.
(Paras 21–22)

HELD

The document Exh. P-12 was not an instrument of partition but a memorandum recording past events and a mere list of properties allotted.
It did not require registration and was admissible in evidence; in any event, it was usable for collateral purpose under the proviso to Section 49 of the Registration Act.

RESULT

Appeal dismissed with costs.

REGISTRATION ACT, 1908 — Sections 17 & 49 — Unregistered partition deed — Admissibility in evidence — Scope Unregistered partition deed compulsorily registrable under Section 17(1)(b) of the Registration Act cannot be received in evidence to create, declare, assign, limit or extinguish rights in immovable property. However, under the proviso to Section 49, such document may be received only for collateral purpose, subject to limitations. (Paras 9–11)

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REGISTRATION ACT, 1908 — Sections 17 & 49 — Unregistered partition deed — Admissibility in evidence — Scope

Unregistered partition deed compulsorily registrable under Section 17(1)(b) of the Registration Act cannot be received in evidence to create, declare, assign, limit or extinguish rights in immovable property.
However, under the proviso to Section 49, such document may be received only for collateral purpose, subject to limitations.
(Paras 9–11)

REGISTRATION ACT, 1908 — Section 49 — Collateral purpose — Meaning and limits

Collateral purpose does not permit proof of partition, allotment of shares, creation or extinction of rights.
Collateral transaction must be independent of and divisible from the main transaction requiring registration.
Document cannot be used indirectly to establish what cannot be proved directly.
(Paras 11, 15–17)

CIVIL PROCEDURE CODE — Order XIII Rule 4 — Marking of document — Effect

Mere marking of a document as an exhibit does not amount to its admissibility in law.
Where objection relates to inherent inadmissibility of the document, such objection can be raised even after marking and even at later stages.
(Paras 17–18)

EVIDENCE ACT, 1872 — Sections 74 & 77 — Certified copy — Effect

Certified copy of an unregistered partition deed does not stand on higher footing than the original.
Benefit of Sections 35 and 36 of the Stamp Act cannot be extended to secondary evidence.
(Paras 12–14)

STAMP ACT — Sections 35 & 36 — Scope

Section 36 applies only where original instrument is admitted in evidence without objection.
Certified copies do not receive protection under Section 36.
(Paras 12–14)

PARTITION DEED — Unregistered — Validation by payment of stamp duty — Effect

Payment of deficit stamp duty and endorsement by Collector cures defect of stamp duty only.
Defect of non-registration under Section 17 of the Registration Act cannot be cured.
(Paras 5.1, 9–11)

CIVIL SUIT — Declaration of title — Nature of evidence

In a suit for declaration of title and recovery of possession, court must determine substantive rights.
Unregistered partition deed cannot be relied upon even for collateral purpose where such reliance directly affects title.
(Paras 19–20)

ADVERSE POSSESSION — Proof — Unregistered partition deed

Unregistered partition deed cannot be used even to establish adverse possession when such document is relied upon to prove source and nature of possession.
(Para 19)

PRACTICE AND PROCEDURE — Bipin Shantilal Panchal principle — Applicability

Though Supreme Court suggested postponement of objections relating to admissibility till final stage, objection regarding inherent inadmissibility of compulsorily registrable unregistered document may be decided at any stage.
(Paras 8, 17–18)

RESULT

Order of trial Court de-exhibiting certified copy of unregistered partition deed upheld.
Civil Revision Petitions dismissed.
(Paras 20–21)

ANALYSIS OF THE JUDGMENT

1. Core Issue

Whether the trial court committed an error in de-exhibiting Ex.B2, being a certified copy of an unregistered partition deed dated 22-06-1969, in suits filed for:

declaration of title, and
recovery of possession.

2. Petitioners’ Case

Partition deed was:
- old (1969),
- earlier marked in O.S. No.311 of 2009,
- validated by Collector after payment of stamp duty.
No objection earlier when marked.
Defendants were in possession since 1969.
Document should be considered at final stage as per Bipin Shantilal Panchal.

3. Respondents’ Objection

Document is:
- compulsorily registrable,
- unregistered,
- allegedly fabricated.
Non-registration defect cannot be cured.
Marking was subject to objection.
Application for de-exhibiting rightly allowed.

4. Legal Framework Considered

The Court exhaustively analysed:

Section 17, Registration Act
— compulsory registration.
Section 49, Registration Act
— effect of non-registration.
Proviso to Section 49
— collateral purpose.
Order XIII Rule 4 CPC
Leading precedents including:
- Bipin Shantilal Panchal
- R.V.E. Venkatachala Gounder
- K.B. Shah & Sons
- Sure Ranga Murali Krishna Reddy
- Lakkoji Mohana Rao
- Dammu Eswara Rao
- Budha Jagadeeshwara Rao

5. Findings of the Court

(a) On Registration

Partition deed clearly falls under Section 17(1)(b).
Non-registration renders it inadmissible for proving rights in immovable property.

(b) On Collateral Purpose

Court reiterated settled law:

Collateral purpose cannot include:
- proof of partition,
- allotment of shares,
- transfer or extinguishment of rights.

Permissible collateral use is limited to:

severance of status only,
not ownership or title.

(c) On Certified Copy

Certified copy does not improve admissibility.
Section 36 Stamp Act protection applies only to original instruments.

(d) On Prior Marking in Earlier Suit

Admission of document in one suit does not bind another suit.
Objection can be raised afresh.

(e) On Adverse Possession

Defendants relied upon partition deed itself to explain possession.
Such use goes to root of title.
Hence cannot be treated as collateral purpose.

6. Final Conclusion

Because:

the suits are for declaration of title, not mere injunction,
substantial property rights are involved,
document is unregistered and compulsorily registrable,

the unregistered partition deed:

cannot be looked into even for collateral purpose, and
was rightly de-exhibited.

RATIO DECIDENDI

An unregistered partition deed, which is compulsorily registrable under Section 17 of the Registration Act, cannot be received in evidence to establish title, partition, allotment of shares or adverse possession; and even for collateral purpose, such document cannot be relied upon where its use directly affects substantive rights in immovable property. Mere marking of such document as an exhibit or validation by payment of stamp duty does not cure the defect of non-registration, and objection to its admissibility can be raised at any stage.

Wish you all a Happy Republic Day 2026

One India, One Soul: A Republic Day Declaration

In this era of rapidly shifting global tides, it is both just and necessary for us to stand as one—one nation, one people, one India. Regardless of caste, creed, language, or religion, our unity is not merely a choice; it is our ultimate shield. As we witness instability and chaos in troubled lands across the world, let us remember that while unity preserves national integrity, division only breeds ruin.

India is not a nation merely defined by the borders drawn in 1947; she is a timeless civilization. We are a legacy shaped by thousands of years of profound knowledge, immense sacrifice, and an unyielding moral compass. From the heights of the Himalayas to the shores of Kanyakumari, from the sands of Rajasthan to the tides of Bengal, our identity is a masterpiece woven by unity in diversity. We are many cultures, many faiths, and many languages—yet we breathe as one soul, guided by one Constitution and sheltered by one Tricolour.

The Republic we cherish was bought with the blood of our freedom fighters. The Constitution they bequeathed to us is more than a legal document; it is a sacred covenant of justice, liberty, equality, and fraternity. It is our collective duty to guard these ideals, ensuring that future generations inherit a nation that is stronger, safer, and more united than the one we hold today.

Let us consciously reject the shadows of hatred, division, and misinformation. Let us rise above narrow interests and remember: when India stands united, no force on earth can weaken her. National unity is our greatest defense, patriotism our greatest strength, and harmony our greatest victory.

On this proud Republic Day, let us bow before the Tricolour and honor our martyrs. Let us respect our soldiers who guard us, our farmers who feed us, our workers who build us, and our scholars who lead us. Today, let us pledge to work selflessly for the progress, dignity, and sovereignty of our beloved Motherland.

May the spirit of nationalism guide our thoughts and strengthen our actions as we illuminate the path of a New India—sovereign, self-reliant, peaceful, and eternal.

Jai Hind. Jai Bharat. Vande Mataram.

Friday, January 23, 2026

After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on strict proof of due diligence. Wrong advice of counsel or subsequent legal opinion does not amount to due diligence. A plaintiff who consciously files a suit for bare injunction despite an existing dispute of title cannot later amend the plaint to seek declaration. Amendment cannot be allowed to nullify admissions already made in evidence. Declaration of title without consequential relief is ineffective and cannot be permitted through belated amendment. Where the real dispute concerns identity of property, amendment for declaration of title is unnecessary and improper.

advocatemmmohan

Amendment of pleadings — Proviso — Due diligence.

Though Order VI Rule 17 CPC permits amendment of pleadings at any stage of proceedings, the proviso mandates that where amendment is sought after commencement of trial, the applicant must establish that despite due diligence, such amendment could not have been sought earlier.
(Paras 4–5)

Amendment after commencement of trial

Wrong legal advice — Not due diligence.

Change of counsel or subsequent advice to seek declaration of title does not constitute “due diligence” within the meaning of the proviso to Order VI Rule 17 CPC.
(Paras 1–4)

Suit for permanent injunction — Amendment to include declaration of title

Belated amendment — Not maintainable.

Where plaintiffs were aware of the alleged title dispute even on the date of filing of the suit and still chose to file a suit for bare injunction, they cannot later seek amendment to incorporate declaration of title after commencement of trial.
(Paras 4–5)

Admissions in cross-examination — Effect

Admissions elicited during cross-examination showing that cause of action pleaded was incorrect disentitle the plaintiff from seeking amendment which would nullify or overcome such admissions.
(Para 4)

Amendment — Prejudice to opposite party

An amendment which would:

• negate admissions already on record, or
• materially prejudice the defence of the opposite party,

is not liable to be allowed.
(Paras 4–5)

Vacant site — Possession follows title

Though possession of a vacant site ordinarily follows title, that principle cannot be invoked to justify a belated amendment when the plaintiff was aware of the dispute at the inception of the suit.
(Para 2)

Declaration of title — Consequential relief

Relief of declaration of title cannot stand alone.
Where removal of structures or other consequential reliefs are necessary, omission to seek such reliefs renders the amendment ineffective and incomplete.
(Para 5)

Identity of property — Distinction from title dispute

Where the core controversy relates to identity of property, mere incorporation of declaration of title does not resolve the dispute.
In such cases, amendment seeking declaration alone is not warranted.
(Para 6)

Multiplicity of proceedings — Limitation

Though avoidance of multiplicity of litigation is a relevant consideration, it cannot override:

• statutory requirement of due diligence, and
• prejudice caused to the opposite party.
(Paras 4–5)

RATIO DECIDENDI

After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on strict proof of due diligence.
Wrong advice of counsel or subsequent legal opinion does not amount to due diligence.
A plaintiff who consciously files a suit for bare injunction despite an existing dispute of title cannot later amend the plaint to seek declaration.
Amendment cannot be allowed to nullify admissions already made in evidence.
Declaration of title without consequential relief is ineffective and cannot be permitted through belated amendment.
Where the real dispute concerns identity of property, amendment for declaration of title is unnecessary and improper.

Order VI Rule 17 CPC permits amendment of pleadings at any stage, including after commencement of trial, subject to due diligence. No statutory limitation period exists for filing amendment applications. Amendments to written statements are to be considered liberally, even permitting additional grounds of defence. Where amendment merely elaborates an existing defence and relates to the real controversy, it ought to be allowed. A plea that suit for injunction is not maintainable without declaration of title is not a new defence when title dispute already exists in pleadings. Supervisory jurisdiction under Article 227 cannot be exercised to upset a discretionary order passed on correct legal principles.

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Constitution of India — Article 227

Supervisory jurisdiction — Scope.

Interference under Article 227 is permissible only where the subordinate court’s order suffers from patent illegality, jurisdictional error, or perversity.
Discretionary orders passed in accordance with settled principles of law do not warrant interference.
(Paras 7, 14)

Civil Procedure Code, 1908 — Order VI Rule 17

Amendment of pleadings — Scope — Liberal approach.

Order VI Rule 17 CPC empowers the Court to permit amendment of pleadings at any stage of the proceedings if such amendment is necessary for determining the real controversy between the parties.
(Paras 8–9)

Amendment after commencement of trial

Due diligence — Meaning and application.

Even after commencement of trial, amendment is permissible provided the Court is satisfied that despite due diligence, the party could not raise the matter earlier.
There is no absolute bar against amendment after commencement of trial.
(Para 10)

Delay in seeking amendment

No limitation prescribed.

Neither the Code of Civil Procedure nor the Limitation Act prescribes any limitation period for filing an application under Order VI Rule 17 CPC.
Filing an amendment application after three years and seven months cannot by itself be treated as belated.
(Para 9)

Written statement — Amendment — Liberal consideration

Amendment of a written statement stands on a more liberal footing than amendment of plaint.
The defendant is entitled even to take additional or alternative grounds of defence.
(Para 13)

Amendment — Elaboration of existing pleadings

Where the proposed amendment merely elaborates or clarifies the defence already taken in the written statement, such amendment does not change the nature of defence and is liable to be allowed.
(Paras 4, 12)

Property dispute — Identity of property

Where the dispute primarily concerns:

• identity of the suit property,
• boundaries, and
• existence or non-existence of access road,

amendment explaining layout plans, master plans and plot boundaries directly relates to the real controversy and is permissible.
(Paras 10–12)

Advocate Commissioner — Dismissal — Effect

Dismissal of an earlier application for appointment of an Advocate Commissioner does not bar a party from seeking amendment of pleadings to clarify facts relating to identity of property.
(Para 12)

Prejudice — Test

Amendment cannot be rejected unless it causes serious prejudice to the opposite party or deprives that party of a valuable accrued right.
Where plaintiff already had to meet the plea of title dispute, elaboration of the same defence causes no prejudice.
(Paras 12–13)

Injunction suit — Plea regarding declaration of title

Where the original written statement itself disputes plaintiff’s title, an additional plea that the suit is not maintainable without declaration of title does not introduce a new defence.
Such plea is only a legal consequence of the existing defence.
(Para 13)

Discretion of trial court

Trial court has wide discretionary power in allowing amendments of pleadings.
So long as the discretion is exercised judicially and on sound reasoning, it does not call for interference under Article 227.
(Paras 12–14)

Supreme Court precedent — Baldev Singh v. Manohar Singh

Trial courts are empowered to permit even new grounds of defence in amendments to written statements.
(Para 13)

RATIO DECIDENDI

Order VI Rule 17 CPC permits amendment of pleadings at any stage, including after commencement of trial, subject to due diligence.
No statutory limitation period exists for filing amendment applications.
Amendments to written statements are to be considered liberally, even permitting additional grounds of defence.
Where amendment merely elaborates an existing defence and relates to the real controversy, it ought to be allowed.
A plea that suit for injunction is not maintainable without declaration of title is not a new defence when title dispute already exists in pleadings.
Supervisory jurisdiction under Article 227 cannot be exercised to upset a discretionary order passed on correct legal principles.

Under Mohammedan Law, oral gift (hiba) is valid without registration if declaration, acceptance and delivery of possession are proved. Concept of joint family property is unknown to Mohammedan Law. Suit for mandatory injunction and recovery of possession is maintainable without declaration of title unless a genuine cloud over title is established. Constructive possession is sufficient delivery of possession for validity of Muslim gift. A plea not raised in the written statement cannot be permitted to be raised for the first time in second appeal. Concurrent findings of fact based on proper appreciation of evidence are not open to interference under Section 100 CPC.

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Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope — Concurrent findings — Interference.

Second appeal lies only on substantial question of law.
High Court cannot re-appreciate evidence or substitute its own findings where the trial court and first appellate court have recorded concurrent findings of fact based on proper appreciation of evidence.
(Paras 13–16, 28)

Substantial Question of Law — Test

A question of law becomes “substantial” only when it:

• directly and substantially affects rights of parties,
• is not finally settled by superior courts, or
• is open to serious debate.

Mere re-appreciation of evidence does not give rise to a substantial question of law.
(Paras 13–15)

Mandatory Injunction — Maintainability

Mandatory injunction and recovery of possession — Declaration not always mandatory.

A suit for mandatory injunction and recovery of possession is maintainable without seeking declaration of title where:

• plaintiff establishes lawful right and possession, and
• defendant fails to raise a genuine cloud over title.

(Paras 24–26)

Injunction suit — Title dispute — Principles

A plaintiff need not seek declaration of title in every case where defendant disputes title.
Declaration becomes necessary only where the defendant raises a genuine and substantial cloud over the plaintiff’s title.
(Para 25)

Mohammedan Law — Joint family property

Concept of joint family unknown.

Under Mohammedan Law:

• concept of Hindu joint family property does not exist,
• property held by a Muslim is individual property unless proved otherwise.

Plea of joint family property among Muslims is legally unsustainable.
(Paras 21, 25)

Mohammedan Law — Gift (Hiba)

Oral gift — Validity — Essentials.

Under Mohammedan Law:

• gift need not be in writing,
• registration is not mandatory,
• oral gift is valid if three essentials are satisfied:

(i) declaration by donor,
(ii) acceptance by donee, and
(iii) delivery of possession — actual or constructive.

(Paras 21–24, 27)

Oral gift — Proof

Oral gift is proved where:

• donor communicates gift to donee,
• donor informs third parties including defendant,
• written communication and legal notice confirm the gift, and
• donor and donee jointly institute the suit.

(Paras 22–24)

Delivery of possession — Constructive possession

Actual physical delivery is not mandatory in every case.
Constructive possession is sufficient where donor retains control and permits donee to assert ownership.
(Paras 24, 27)

Registered document — Thirty years old

A registered document more than thirty years old carries presumption of validity and does not require strict proof under the Evidence Act.
(Para 21)

Licence — Revocation

Where defendant is permitted to occupy property by way of licence, upon revocation of licence, continued occupation becomes unlawful and possession must be restored to the rightful owner.
(Paras 6, 24)

Pleadings — Absence of plea — Effect

Where defendant has not pleaded in written statement that suit is not maintainable without declaration of title, such plea cannot be raised for the first time in second appeal after suffering concurrent decrees.
(Para 26)

Admissions and conduct — Evidentiary value

Conduct of parties, acceptance of legal notice, and absence of rebuttal support plaintiff’s claim of gift and lawful possession.
(Paras 22–24)

Concurrent findings — Finality

Where both courts below have:

• properly framed issues,
• appreciated oral and documentary evidence, and
• applied settled legal principles,

their concurrent findings do not warrant interference under Section 100 CPC.
(Paras 16, 28)

RATIO DECIDENDI

Under Mohammedan Law, oral gift (hiba) is valid without registration if declaration, acceptance and delivery of possession are proved.
Concept of joint family property is unknown to Mohammedan Law.
Suit for mandatory injunction and recovery of possession is maintainable without declaration of title unless a genuine cloud over title is established.
Constructive possession is sufficient delivery of possession for validity of Muslim gift.
A plea not raised in the written statement cannot be permitted to be raised for the first time in second appeal.
Concurrent findings of fact based on proper appreciation of evidence are not open to interference under Section 100 CPC.

When title is seriously disputed and under cloud, a suit for bare permanent injunction is not maintainable without declaration of title. In injunction suits, the burden lies entirely on the plaintiff to prove lawful possession as on the date of suit. Sale deed and pattadar passbook alone are insufficient to establish possession of agricultural land in the absence of revenue adangals. Courts below commit perversity when they ignore material admissions and documentary evidence. Wrong casting of burden of proof constitutes a substantial question of law under Section 100 CPC. Concurrent findings based on misreading or non-consideration of evidence are open to interference in second appeal.

advocatemmmohan

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope of interference — Concurrent findings — Exceptions.

Though ordinarily the High Court will not interfere with concurrent findings of fact, such findings are liable to be interfered with in second appeal where:

(i) material evidence is ignored,
(ii) findings are based on no evidence or mis-reading of documentary evidence, or
(iii) burden of proof is wrongly cast.

(Paras 14–15, 30–31)

Suit for Permanent Injunction — Maintainability

Bare injunction — Cloud over title — Declaration mandatory.

Where there exists a serious dispute regarding title and the plaintiff’s title is under cloud, a mere suit for permanent injunction is not maintainable without seeking the relief of declaration of title.
(Paras 25, 32)

Injunction simpliciter — Principles

A suit for injunction simpliciter is maintainable only where:

• plaintiff is in lawful possession, and
• defendant fails to establish a better title.

A person in wrongful or doubtful possession is not entitled to injunction against the true owner.
(Paras 20–21)

Title dispute — Husband and wife vendors — Complicated questions of law

Where:

• plaintiff’s vendor and defendant’s vendor are husband and wife,
• both claim title through the same original owner, and
• competing registered sale deeds exist,

the dispute involves complicated questions of fact and law, requiring adjudication through a comprehensive declaratory suit.
(Paras 17, 25)

Burden of proof — Injunction suit

In a suit for permanent injunction, the burden lies on the plaintiff to prove lawful possession as on the date of suit.
The burden cannot be shifted on the defendant to prove his possession.
(Paras 21, 27)

Possession — Proof — Revenue records

Possession of agricultural land must be established by reliable evidence such as:

• revenue adangals,
• land revenue receipts, or
• proof of actual cultivation.

Mere production of sale deed, pattadar passbook or title deed is not conclusive proof of possession.
(Paras 21–24, 26)

Revenue entries — Evidentiary value

Mutation entries and pattadar passbooks only enable payment of land revenue and do not, by themselves, establish title or possession.
(Para 23)

Failure to produce revenue adangals — Adverse inference

Where plaintiffs claim cultivation of wet land but fail to produce revenue adangals or land revenue receipts, adverse inference must be drawn against their claim of possession.
(Paras 22–24)

Trial Court — Framing of issues

Failure of the trial court to frame an issue regarding maintainability of suit for bare injunction, despite specific plea of title dispute in the written statement, vitiates the judgment.
(Para 25(iv))

First Appellate Court — Error of law

First appellate court committed perversity by:

• ignoring material documentary evidence,
• not considering existence of cloud over title, and
• wrongly shifting burden of proof on the defendant.

Such findings are legally unsustainable.
(Paras 26–31)

Admissions — Evidentiary value

Admissions of plaintiff’s vendor in cross-examination regarding:

• lack of ancestral property, and
• relationship with defendant’s vendor,

are material admissions and cannot be ignored.
(Paras 17–18)

Competing sale deeds — Effect

Where plaintiff’s vendor had no title and admitted absence of ancestral property, sale deed executed by such vendor does not confer valid title.
(Paras 17, 21, 25)

Second Appeal — Substantial question of law

Substantial question of law arises where courts below decree a suit for bare injunction despite:

• serious title dispute,
• defective source of title, and
• absence of proof of possession.

(Paras 12, 25–32)

RATIO DECIDENDI

When title is seriously disputed and under cloud, a suit for bare permanent injunction is not maintainable without declaration of title.
In injunction suits, the burden lies entirely on the plaintiff to prove lawful possession as on the date of suit.
Sale deed and pattadar passbook alone are insufficient to establish possession of agricultural land in the absence of revenue adangals.
Courts below commit perversity when they ignore material admissions and documentary evidence.
Wrong casting of burden of proof constitutes a substantial question of law under Section 100 CPC.
Concurrent findings based on misreading or non-consideration of evidence are open to interference in second appeal.

After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on proof of due diligence. Conversion of a suit for permanent injunction into declaration of title at the second appellate stage fundamentally changes the nature of the suit and is impermissible. Belated amendment sought after dismissal of suit and first appeal cannot be allowed merely to overcome adverse findings. Amendment cannot be used as a tool to reopen concluded litigation or cure inherent defects noticed by courts below. Failure to seek amendment at earlier stages disentitles the party from seeking it after prolonged delay.

advocatemmmohan

Civil Procedure Code, 1908 — Order VI Rule 17

Amendment of pleadings — Scope — Proviso — Due diligence — Mandatory requirement.

After commencement of trial, amendment of pleadings cannot be permitted unless the party seeking amendment establishes that in spite of due diligence, such amendment could not have been sought earlier.
The burden squarely lies on the applicant to satisfy the proviso to Order VI Rule 17 CPC.
(Paras 7–8)

Amendment at Second Appeal stage

Belated amendment — After dismissal of suit and appeal — Not permissible.

Where:

• suit was instituted in 2004,
• dismissed on merits in 2008,
• appeal dismissed in 2011, and
• second appeal pending from 2011,

an amendment application filed in 2022 at the stage of final hearing of second appeal is grossly belated and liable to be rejected.
(Paras 4–6, 9)

Suit for Permanent Injunction — Conversion into declaration of title

Change of nature of suit — Impermissible.

Conversion of a suit for bare permanent injunction into a suit for declaration of title and consequential injunction:

• introduces a new cause of action,
• alters the fundamental character of the suit, and
• cannot be permitted at the second appellate stage.

Such amendment is hit by Order VI Rule 17 CPC.
(Paras 5–9)

Change in nature of suit — Test

An amendment which:

• introduces an entirely new and inconsistent case, or
• transforms the nature and character of the original suit,

must be rejected.
(Paras 7–9)

Delay — Effect

Though delay alone is not a ground to reject amendment, delay coupled with:

• absence of due diligence,
• attempt to reopen concluded findings, and
• change in nature of suit,

is fatal to the amendment application.
(Paras 6–9)

Second Appeal — Substantial question of law already raised

Where the appellant himself raised a substantial question of law at the time of filing the second appeal regarding maintainability of injunction suit without declaration of title, failure to seek amendment either before the trial court or appellate court disentitles him from seeking amendment after eleven years of pendency of second appeal.
(Para 6)

Amendment — Mala fide attempt

Filing an amendment application:

• after 18 years of institution of suit,
• after losing before two courts, and
• at the stage of final hearing in second appeal,

amounts to a mala fide attempt to reopen settled issues and cannot be permitted.
(Para 9)

Amendment — Not a matter of right

Amendment of pleadings is not a matter of right and cannot be claimed under all circumstances.
Courts must refuse amendment where statutory conditions under Order VI Rule 17 CPC are not satisfied.
(Para 8)

Amendment — Limitation and accrued rights

An amendment which would:

• deprive the opposite party of valuable accrued rights, and
• permit resurrection of a claim long after limitation,

is liable to be rejected.
(Paras 7–9)

RATIO DECIDENDI

After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on proof of due diligence.
Conversion of a suit for permanent injunction into declaration of title at the second appellate stage fundamentally changes the nature of the suit and is impermissible.
Belated amendment sought after dismissal of suit and first appeal cannot be allowed merely to overcome adverse findings.
Amendment cannot be used as a tool to reopen concluded litigation or cure inherent defects noticed by courts below.
Failure to seek amendment at earlier stages disentitles the party from seeking it after prolonged delay.