1

2026:CGHC:9411

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

SA No. 204 of 2014

Judgment reserved on 27/11/2025

Judgment delivered on 23/02/2026

1 - Pal Sai S/o Gyan Sai Aged About 69 Years R/o Kerju, P.S. And Tah.

Sitapur, Distt. Surguja C.G., Chhattisgarh

2A - Gunjmati W/o Late Anil Singh Aged About 58 Years R/o Baneya, P.S.

And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),

Chhattisgarh

2A.a - Jaspal Singh S/o Late Anil Singh Aged About 35 Years R/o

Baneya, P.S. And Tah. Sitapur, Distt. Surguja C.G., District : Surguja

(Ambikapur), Chhattisgarh

2A.b - Ganesh S/o Late Anil Singh Aged About 30 Years R/o Baneya, P.S.

And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),

Chhattisgarh

2B - Chhabil Sai (Dead Through Lrs) S/o As Per Honble Court Order

Dated 30-01-2025

2B.a- Murchhand Singh S/o Late Chhabil Sai Aged About 46 Years R/o

Occupation - Agriculturist R/o Village Kerju, Tahsil Sitapur, District

Surguja (C.G.)

2

2B.b- Deelip Kumar S/o Late Chhabil Sai Aged About 29 Years R/o

Occupation - Agriculturist R/o Village Kerju, Tahsil Sitapur, District

Surguja (C.G.)

2B.c- Dulari Bai W/o Late chhabil Sai, aged about 65 years, R/o Village

Kerju, Tahsil Sitapur, District Surguja (C.G.)

2B.d- Chintamani, W/o Prem Singh, D/o Late Chhabil Sai, aged about 34

years, R/o Village Jamnimuda, Raja Ama, Tahsil Pathalgon, District

Jashpur (C.G.)

2B.e- Geeta, W/o Dev Kumar, D/o Late Chhabil Sai, aged about 30

years, R/o Village Sokhapara, Kodekela, Gharjiabathan, Tahsil

Pathalgon, District Jashpur (C.G.)

2C - Bad Sai S/o Late Prasann Ram Aged About 55 Years R/o

Faradbahar, P.S. And Tah. Jashpur, Distt. Jashpur C.G., District : Jashpur,

Chhattisgarh

2D - Chamar Sai S/o Late Ram Sai Aged About 57 Years R/o Kerju, P.S.

And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),

Chhattisgarh

2E- Neelamber S/o Late Ram Sai Aged About 55 Years R/o Kerju, P.S.

And Tah. Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur),

Chhattisgarh

... Appellants

versus

1A - Girvar S/o Hawal Sai Aged About 61 Years R/o Kerju, P.S. And Tah.

Sitapur, Distt. Surguja C.G., Chhattisgarh

1B- Hirdan S/o Hawal Sai Aged About 52 Years R/o Kerju, P.S. And Tah.

3

Sitapur, Distt. Surguja C.G., District : Surguja (Ambikapur), Chhattisgarh

2 - State Of C.G. Through- Collector, Ambikapur, Distt. Surguja C.G.,

District : Surguja (Ambikapur), Chhattisgarh

... Respondents

(Cause title taken from Case Information System)

For Appellants :Mr. Shahid Ahmed Ansari, Advocate

For Respondents No. 1A & 1B:Mr. Ashok Kumar Shukla and Mr.

Vikas Dhritlahare, Advocates

For Respondent No.2/State:Mr. Kalpesh Ruparel, Panel Lawyer

Hon'ble Shri Ravindra Kumar Agrawal, Judge

C.A.V. Judgment

1.This second appeal under Section 100 of the Code of Civil

Procedure, 1908, has been preferred by the appellants/defendants

calling in question the legality, validity and propriety of the

judgment and decree dated 12.05.2014 passed by the learned 2nd

Additional District Judge, Ambikapur, District Surguja (C.G.) in Civil

Appeal No.50-A/2012, whereby the appeal preferred by the

respondents/plaintiffs has been allowed and the judgment and

decree dated 19.03.2012 passed by the learned Civil Judge Class-

II, Sitapur, District Surguja in Civil Suit No.31-A/1989 (earlier Civil

Suit No.12A/2007) dismissing the suit as barred by limitation has

been set aside, and the respondents/plaintiffs have been held

entitled to recovery of possession of the suit land as described in

4

Schedule-B appended to the impugned judgment and decree. The

appellants, being aggrieved by the reversal of the trial Court’s

findings on limitation and possession, have raised various

substantial questions of law relating to limitation, amendment of

pleadings under Order VI Rule 17 CPC, accrual of cause of action,

and the legality of the findings recorded by the first appellate Court.

2.The second appeal is admitted on 07.12.2015 on the following

substantial question of law:-

“Whether the learned lower appellate Court

was justified in reversing judgment and

decree of the trial Court and grant decree in

favour of plaintiff by holding that the suit was

within limitation?”

3.The facts of the case as emerges from the pleadings of the case

are that, the dispute in the present second appeal pertains to

agricultural land admeasuring 9.75 acres situated in various

Khasra numbers at Village Kerju, Tahsil Sitapur, District Surguja

(C.G.) (hereinafter referred to as “the suit land”). The parties to the

lis are closely related and are descendants of two real brothers,

namely, Jagan Sai and Lagan Sai. The respondents/plaintiffs are

the sons and legal representatives of Jagan Sai, whereas the

appellants/defendants are the sons and legal representatives of

Lagan Sai.

*******It is the case of the appellants/defendants that Jagan Sai

5

died about 36 years prior to the institution of the suit and Lagan Sai

died about 12 years prior to the Surguja Settlement operations.

According to the plaintiffs, the suit land originally belonged to their

predecessor-in-interest Jagan Sai and they are the title holders

thereof. On the contrary, the case of the defendants is that their

names were mutated in the revenue records in the year 1954-55

and they have been in continuous, open and peaceful possession

of the suit land since then.

*******The respondents/plaintiffs instituted a civil suit on 22.06.1989

before the Court of Civil Judge Class-II, Ambikapur (now Sitapur),

being Civil Suit No.31-A/1989, seeking declaration of title over the

suit land and permanent injunction against the defendants.

Notably, in the original plaint, no specific relief of recovery of

possession was claimed, though it was alleged that the defendants

were interfering with the land.

*******The appellants/defendants filed their written statement

denying the plaint allegations in toto and contended that the suit

was barred by limitation. It was specifically pleaded that the

defendants were in possession since 1954-55 and their names had

been duly recorded in the revenue records. It was further

contended that the plaintiffs had no subsisting right, title or interest

over the suit land and the suit was liable to be dismissed.

*******On the basis of pleadings, the learned trial Court framed four

issues relating to title, possession, limitation and relief. By

judgment and decree dated 12.02.1996, the trial Court declared

6

the title in favour of the plaintiffs but dismissed the suit for

permanent injunction on the ground that the defendants were

found to be in possession since 1954-55 and the plaintiffs had not

claimed the relief of recovery of possession. Thus, though

declaration was granted, consequential relief was refused.

*******Aggrieved by the partial dismissal of the suit, the plaintiffs

preferred Civil Appeal No.27-A/2003 before the learned District

Judge, Ambikapur. During the pendency of the said appeal, the

plaintiffs moved an application under Order VI Rule 17 CPC on

10.11.1998 seeking amendment of the plaint for incorporating the

relief of recovery of possession.

*******The defendants opposed the said amendment by filing a

detailed reply contending that the amendment was highly belated,

barred by limitation and would change the nature of the suit. It was

specifically urged that since the defendants were in possession

since 1954-55, any claim for recovery of possession was

hopelessly time barred and could not be introduced by way of

amendment.

*******The first appellate Court, by judgment and decree dated

21.07.2003, affirmed the findings of the trial Court on Issues No.1

and 2 relating to title, but set aside the findings on Issues No.3 and

4 relating to limitation and possession. The matter was remanded

to the trial Court with direction to decide the application under

Order VI Rule 17 CPC and thereafter to record fresh findings on

the issues concerning limitation and recovery of possession.

7

*******After remand, the trial Court again registered the matter as

Civil Suit No.31-A/1989 and by judgment dated 02.09.2003

dismissed the suit holding it to be barred by limitation and also

rejected the application under Order VI Rule 17 CPC.

*******The plaintiffs again preferred Civil Appeal No.25-A/2003

before the 1st Additional District Judge, Ambikapur. By judgment

and decree dated 24.01.2005, the appellate Court set aside the

judgment dated 02.09.2003 and remanded the matter to the trial

Court once again with direction to afford opportunity to the parties

to adduce evidence on the amendment application and to decide

the same in accordance with law.

*******Pursuant to the second remand, the learned Civil Judge

Class-II afforded opportunity to both sides. The defendants

produced revenue records and other documentary evidence in

support of their possession. However, the plaintiffs failed to

produce fresh evidence as directed. The trial Court allowed the

amendment application under Order VI Rule 17 CPC but ultimately,

by judgment and decree dated 19.03.2012, dismissed the suit

holding that the claim for recovery of possession was barred by

limitation.

*******Against the said judgment and decree dated 19.03.2012, the

plaintiffs preferred Civil Appeal No.50-A/2012 before the learned

2nd Additional District Judge, Ambikapur. By the impugned

judgment and decree dated 12.05.2014, the appellate Court

allowed the appeal, reversed the findings of the trial Court on

8

limitation, and decreed the suit directing recovery of possession of

the suit land as described in Schedule-B of the judgment.

*******The appellants/defendants, being aggrieved by the reversal

of well-reasoned findings of the trial Court, particularly on the

question of limitation, accrual of cause of action, and permissibility

of amendment introducing a time-barred relief, have preferred the

present second appeal under Section 100 CPC raising substantial

questions of law relating to limitation, amendment of pleadings,

accrual of cause of action, evidentiary appreciation, and alleged

perversity in the findings of the first appellate Court.

4.Mr. Shahid Ahmed Ansari, l earned counsel for the

appellants/defendants would submit that, the judgment and decree

dated 12.05.2014 passed by the learned 2nd Additional District

Judge, Ambikapur in Civil Appeal No.50-A/2012 is contrary to the

settled principles of law governing limitation, amendment of

pleadings and recovery of possession. The first appellate Court

has reversed the well-reasoned findings of the trial Court without

proper appreciation of pleadings, documentary evidence and

settled legal position.

*******It is contended that admittedly the names of the

predecessors of the appellants, namely Gyan Sai and Prasann Sai,

were mutated in the revenue records in the year 1954-55. The

defendants have been in open, peaceful and continuous

possession of the suit land since then. The plaintiffs instituted the

suit in the year 1989, i.e., after more than three decades from the

9

date when the alleged adverse entry came into existence.

*******Under Article 65 of the Limitation Act, 1963, a suit for

possession based on title is required to be filed within 12 years

from the date when possession becomes adverse to the plaintiff. In

the present case, the cause of action, if any, arose in the year

1954-55 when the names of the defendants’ predecessors were

recorded and they entered into possession. Therefore, the suit filed

in 1989 is ex facie barred by limitation.

*******The learned trial Court rightly recorded a categorical finding

that the claim for recovery of possession is time barred. The first

appellate Court has erred in reversing this finding without assigning

cogent reasons.

*******It is further submitted that in the original plaint, the plaintiffs

had not claimed the relief of recovery of possession. The trial Court

in its first judgment dated 12.02.1996 specifically held that the

defendants were in possession since 1954-55 and since no relief

of possession was claimed, the suit for injunction was liable to be

dismissed.

*******Only during the pendency of the appeal, by application dated

10.11.1998 under Order VI Rule 17 CPC, the plaintiffs sought to

introduce the relief of recovery of possession. By that time, even

assuming the plaintiffs had any cause of action, the claim was

already barred by limitation.

*******It is well settled that an amendment introducing a time-

10

barred relief cannot ordinarily be permitted, and even if permitted,

such amendment does not relate back so as to defeat the law of

limitation. The first appellate Court has failed to consider that

valuable rights had accrued in favour of the defendants by lapse of

time, which could not be defeated by allowing a belated

amendment.

*******Learned counsel would submit that the original suit was one

for declaration and permanent injunction. By introducing the relief

of recovery of possession, the nature of the suit was fundamentally

altered from a suit for prohibitory relief to a suit for ejectment.

*******Such amendment, particularly after recording findings on

possession and after lapse of considerable time, seriously

prejudiced the defendants and caused irreparable injury. The first

appellate Court failed to appreciate that amendment cannot be

allowed to fill lacunae in the plaintiff’s case or to overcome an

adverse finding.

*******It is contended that even assuming the plaintiffs have some

title, it is an admitted and proved fact that they were not in physical

possession of the suit land for decades. A decree for recovery of

possession after such inordinate delay, in the face of long and

settled possession of the defendants, is unsustainable in law.

*******The first appellate Court has ignored the principle that long,

continuous and hostile possession ripens into title by adverse

possession when not challenged within the statutory period.

11

*******The learned counsel for the appellants specifically draws

attention to the statement of plaintiffs’ own witness Asaru. In

paragraph 4 of his deposition, he clearly stated:

“

जगनसायनेलगभगपौनेदसएकड़कीजमीनप्रेमवश इन

लोगोंको

(

पालसाय वगैरह

) ”

कोकमानेखानेकेलिएदियाथा।

*******Further, in paragraph 11, he admitted:

“

उक्त जमीनकोजगनसायनेसर्वेसेटलमेंटके

10-12 सा

ल

बादपालसाय वगैरहकोदियाथावेलोग उसीसमयसेकमाते

-

”

खातेआ रहेहैं।

*******These admissions clearly establish that the defendants and

their predecessors were in possession for several decades. The

first appellate Court has completely ignored this crucial admission,

thereby rendering its findings perverse.

*******It is submitted that the cause of action, if any, first arose

when the revenue entries were made in 1954-55 and when the

defendants entered into possession. The plaintiffs cannot contend

that cause of action arose on the date of amendment. The

limitation is to be computed from the date of dispossession or

adverse possession, not from the date when the relief is

incorporated in the plaint.

*******The learned counsel submits that the first appellate Court

has misread evidence, ignored material admissions, and failed to

properly consider the law of limitation and amendment. The

12

impugned judgment suffers from perversity inasmuch as it

overlooks admitted long possession of the defendants and grants

relief of possession after more than 30 years.

*******Such findings, being contrary to record and settled legal

principles, give rise to substantial questions of law within the

meaning of Section 100 CPC.

*******Lastly, it is submitted that the appellants and their

predecessors have been cultivating and enjoying the suit land

openly for decades. The plaintiffs remained silent for an

unreasonable period and woke up only after lapse of statutory

limitation. Equity and justice are in favour of protecting long-settled

possession rather than unsettling it on technical grounds.

*******In view of the aforesaid submissions, learned counsel for the

appellants prays that the impugned judgment and decree dated

12.05.2014 passed by the learned 2nd Additional District Judge,

Ambikapur in Civil Appeal No.50-A/2012 be set aside and the

judgment and decree dated 19.03.2012 passed by the learned trial

Court dismissing the suit as barred by limitation be restored.

5.Mr. Ashok Kumar Shukla, learned counsel appearing for

respondents No.1A and 1B/plaintiffs would respectfully submit that,

the title of the plaintiffs over the suit land stands conclusively

established. Both the trial Court in its earlier judgment dated

12.02.1996 and the first appellate Court in judgment dated

21.07.2003 categorically recorded findings in favour of the plaintiffs

13

on Issues No.1 and 2 relating to title. These findings were never

set aside on merits and have attained finality. The defendants have

failed to produce any document of title in their favour. Mere

mutation in revenue records does not confer ownership. It is settled

law that revenue entries are only fiscal in nature and do not create

or extinguish title. Thus, the plaintiffs are the recorded and

declared title holders of the suit land.

*******It is submitted that the present suit is essentially one based

on title. Under Article 65 of the Limitation Act, 1963, limitation for

recovery of possession based on title is 12 years from the date

when possession of the defendant becomes adverse to the

plaintiff. The burden to prove adverse possession lies heavily on

the defendants. In the present case, the defendants have neither

specifically pleaded the date from which their possession became

hostile nor proved the necessary ingredients of adverse

possession, namely: actual possession, open and hostile

assertion, denial of title of true owner, continuous and

uninterrupted possession for 12 years. In absence of clear

pleading and strict proof, adverse possession cannot be presumed.

*******The appellants heavily rely upon mutation entries of 1954-

55. It is respectfully submitted that mutation entries do not amount

to declaration of hostile title. Mutation is effected for revenue

purposes and does not extinguish the title of the true owner. The

mere recording of name in revenue records cannot be equated

with open and hostile assertion of ownership against the true title

14

holder. The defendants have not proved that the plaintiffs had

knowledge of any hostile claim in 1954-55. Therefore, limitation

cannot be computed mechanically from the date of mutation.

*******Learned counsel draws attention to the statement of witness

Asaru, relied upon by the appellants themselves, wherein it has

been stated that: “

जगनसायनेलगभगपौनेदसएकड़कीजमीनप्रेमवश इन

”

लोगोंकोकमानेखानेकेलिएदियाथा।

This statement clearly indicates

that the possession of the defendants was permissive in nature. If

land was given “ ”

कमानेखानेकेलिए

, it establishes that possession

originated with the consent of the true owner. Permissive

possession can never become adverse unless there is a clear and

unequivocal repudiation of the true owner’s title, which must be

communicated and proved. No such evidence exists on record.

Thus, the defendants’ own reliance on the above statement

demolishes their plea of adverse possession.

*******It is submitted that the amendment sought by the plaintiffs

was merely to add the consequential relief of recovery of

possession. The foundational facts relating to title and possession

were already pleaded in the original plaint. It is well settled that

when a plaintiff seeks declaration of title and it is found that he is

not in possession, the Court may permit amendment to incorporate

relief of possession to avoid multiplicity of proceedings. The

amendment did not introduce a new cause of action. It was based

on the same set of facts. Therefore, it was rightly allowed.

15

*******It is submitted that once amendment is allowed, it ordinarily

relates back to the date of institution of the suit unless specifically

directed otherwise. Since the suit was filed in 1989 and the

defendants failed to prove that their possession became adverse

12 years prior to the institution of the suit, the plea of limitation is

unsustainable.

*******The first appellate Court is the final Court of fact. It has re-

appreciated the entire oral and documentary evidence and has

recorded findings in favour of the plaintiffs. In a second appeal

under Section 100 CPC, interference is permissible only on

substantial question of law. Re-appreciation of evidence or

substitution of factual findings is impermissible unless the findings

are perverse. In the present case, the findings of the first appellate

Court are based on evidence and correct application of law. No

perversity has been demonstrated.

*******The defendants cannot claim that any vested right accrued in

their favour merely due to lapse of time. In absence of proof of

hostile possession for the statutory period, no right by adverse

possession can arise. Equity follows the law. When title is

established in favour of plaintiffs and adverse possession is not

proved, recovery of possession must follow.

*******The learned first appellate Court has correctly appreciated,

the settled position of law regarding mutation entries, the burden of

proof of adverse possession, the permissive nature of defendants’

16

possession, and the maintainability of amendment. The decree

directing recovery of possession is therefore just, legal and in

consonance with settled principles.

*******In view of the aforesaid submissions, learned counsel for

respondents No.1A and 1B respectfully prays that the present

second appeal being devoid of merit and not involving any

substantial question of law, deserves to be dismissed with costs,

and the judgment and decree dated 12.05.2014 passed by the

learned 2nd Additional District Judge, Ambikapur be affirmed.

6.Mr. Kalpesh Ruparel, learned Panel Lawyer appearing for

respondent No.2/State submits that, the State has been arrayed as

a party through the Collector, Surguja, in view of the fact that the

dispute pertains to agricultural land recorded in revenue records.

The State does not claim any independent right, title or interest

over the suit land and has been impleaded in a formal capacity.

The dispute is essentially inter se between private parties

regarding title and possession over the suit property. Therefore, the

State confines its submissions to the extent of legality of revenue

entries and procedural compliance.

7.I have heard learned counsel for the parties at length and perused

the entire record with utmost circumspection.

8.The second appeal was admitted on the substantial question of law

as to whether the learned first appellate Court was justified in

17

reversing the judgment and decree of the trial Court and in holding

that the suit was within limitation. The controversy, therefore,

essentially revolves around the applicability of Article 65 of the

Limitation Act, 1963, the nature of possession of the defendants,

and the legal effect of amendment of pleadings under Order VI

Rule 17 CPC.

9.The learned trial court, while deciding the issue No. 3, which was

with respect to limitation to file this suit, has considered in para 7 of

its judgment that, at the time of survey settlement, the suit property

was in ownership and possession of the ancestors of the plaintiff

and defendant, namely Jagan and Lagan, and the father of the

defendant No. 1- Gyan Sai, Prasanna Sai, Ram Sai and Baiga

were minors at the time of survey settlement. Therefore, the land

was recorded in the name of Jagan, and in the record of right of

1954-55, the name of defendant No. 1- Gyan Sai, Prasanna Sai,

Ram Sai, and Baiga was recorded in the year 1954-55, which was

well within the knowledge of the father of the plaintiff, Jagan Sai,

and therefore, the cause of action first arose at the time when the

name of Gyan Sai and his brothers were recorded in the revenue

record, and since the cause of action was arose in the year 1954-

55, the plaintiffs made prayer for possession by way of amendment

incorporated on 02.02.2012, which is barred by limitation as

provided under Article 65 of the Limitation Act, 1963.

10.It is not in dispute that the relief of possession was amended in the

relief column of the plaint vide order dated 26.11.2011. It transpires

18

from the record that the application for amendment was filed on

10.11.1998, which was allowed on 26.11.2011, and amendment

was incorporated. From perusal of the order dated 26.11.2011, it

transpires that at the time of hearing of the application of Order VI

Rule 17 CPC, the defendants have not raised any objection in that

application for amendment in the plaint and the same was allowed

on 26.11.2011. Once no objection have been raised by the

defendants and the application for amendment was allowed, the

said amendment could relates back from the date of institution of

the suit and the doctrine of relation back came into play.

11.In the case of Prithi Pal Singh and another v. Amrik Singh and

others, (2013) 9 SCC 576, the Hon’ble Supreme Court has held in

paragraphs 9 and 11 that:-

“9. After remand the learned Single Judge

reconsidered the second appeal and dismissed

the same. The learned Single Judge extensively

dealt with the question whether the amendment

made in the plaint would relate back to the date of

institution of the suit or the same will be treated as

effective from the date of this Court's order and

held: [Amrik Singh case, RCR (Civil) pp. 506-09,

paras 8-12]

"8. The admitted facts now stand that the

plaintiff and vendor are the co-sharers. The

19

fate of the present appeal hinges upon the

question "whether the amendment allowed

by the Apex Court vide its judgment dated

10-11-1994 will operate from the date of the

order or is deemed to have been

incorporated as a part of the plaint from the

date of the institution of the suit?" If the

amendment is considered to be part of the

plaint from the date of institution of the suit,

the plaintiff is bound to succeed, otherwise

the suit shall fail if the amendment is found

to become operative from the date of the

order of the Apex Court allowing

amendment. It is settled principle of law that

at that time of consideration of the plea of

amendment, the Court is not required to go

into the question of merits of the

amendment sought. A party seeking the

amendment may ultimately succeed or fail

on the basis of the amendment is not the

relevant consideration at the time the plea

of amendment is to be considered. Only

consideration at the time is whether such

an amendment is necessary, relevant and

relate to the controversy involved in the lis.

The Hon'ble Supreme Court by allowing the

20

amendment of the plaint vide its order

dated 10-11-1994 observed that the

amendment should have been allowed, on

the basis of the admitted facts, Whether the

suit is barred by limitation or is within

limitation, all depends upon the effective

date of amendment. Mr Goel, the learned

counsel for the appellants has referred to

the judgment passed in Tarlok Singh v.

Vijay Kumar Sabharwal. In this case, the

parties had entered into an agreement to

sell. A suit for perpetual injunction was

instituted on 23-12-1987. During the

pendency of the suit, an application under

Order 6 Rule 17 CPC came to be filed on

17-7-1989 for converting the suit for

injunction into the one for specific

performance of agreement dated 18-8-

1984. The amendment was allowed on 25-

8-1989. A plea was raised that the suit for

specific performance is barred by limitation.

This plea was considered by the Apex

Court wherein following observations have

been made: (SCC pp. 368-69, para 6)

21

6. Shri Prem Malhotra, the learned

counsel for the respondent. contended

that since the respondent had refused

performance the suit must be deemed to

have been filed on 23-12-1987 and,

therefore, when the amendment was

allowed, it would relate back to the date

of filing the suit which was filed within

three years from the date of the refusal.

Accordingly, the suit is not barred by

limitation. Shri U.R Lalit, the learned

Senior Counsel for the appellant,

contended that in view of the liberty

given by the High Court the appellant is

entitled to raise the plea of limitation.

The suit filed after expiry of 3 years from

1986 is barred by limitation. The

question is: as to when the limitation

began to run? In view of the admitted

position that the contract was to be

performed within 15 days after the

injunction was vacated, the limitation

began to run on 6-4-1986. In view of the

position that the suit for perpetual

injunction was converted into one for

specific performance by order dated 25-

22

8-1989, the suit must be deemed to

have been instituted on 25-8-1989 and

the suit was clearly barred by limitation.

We find force in the stand of the

appellant. We think that parties had, by

agreement, determined the date for

performance of the contract. Thereby

limitation began to run from 6-4-1986.

Suit merely for injunction laid on 23-12-

1987 would not be of any avail nor the

limitation began to run from that date.

Suit for d perpetual injunction is different

from suit for specific performance. The

suit for specific performance in fact was

claimed by way of amendment

application filed under Order 6 Rule 17

CPC on 12-9-1979. It will operate only

on the application being ordered. Since

the amendment was ordered on 25-8-

1989 the crucial date would be the date

on which the amendment was ordered

by which e date, admittedly, the suit is

barred by limitation. The courts below,

therefore, were not right in decreeing the

suit."

23

9. In Sampath Kumar v. Ayyakannu, (2002)

7 SCC 559 initially, a suit for prohibitory

injunction was filed in the year 1988

claiming possession of the suit property.

Later in the year 1989, an application under

Order 6 Rule 17 CPC was made for

conversion of the suit into one for

declaration of title of the suit property and

consequential relief of delivery of

possession alleging that during the

pendency of the suit, defendant

dispossessed the plaintiff in January 1989.

The amendment was refused. However, in

appeal before the Hon'ble Apex Court, the

conditional amendment was allowed. The

Hon'ble Apex Court observed as under.

(SCC pp. 563-64, paras 11 & 13)

11. In the present case the amendment

is being sought for almost 11 years after

the date of the institution of the suit. The

plaintiff is not debarred from instituting a

new suit seeking relief of declaration of

title and recovery of possession on the

same basic facts as are pleaded in the

plaint seeking relief of issuance of

24

permanent prohibitory injunction and

which is pending. In order to avoid

multiplicity of suits it would be a sound

exercise of discretion to permit the relief

of declaration of title and recovery of

possession being sought for in the

pending suit. The plaintiff has alleged

the cause of action for the reliefs now

sought to be added as having arisen to

him during the pendency of the suit. The

merits of the averments sought to be

incorporated by way of amendment are

not to be judged at the stage of allowing

the prayer for amendment. However, the

defendant is right in submitting that if he

has already perfected his title by way of

adverse possession then the right so

accrued should not be allowed to be

defeated by permitting amendment and

seeking a new relief which would relate

back to the date of the suit and thereby

depriving the defendant of the

advantage accrued to him by lapse of

time, by excluding a period of about 11

years in calculating the period of

prescriptive title claimed to have been

25

earned by the defendant. The interest of

the defendant can be protected by

directing that so far as the reliefs of

declaration of title and recovery of

possession, now sought for, are

concerned the prayer in that regard shall

be deemed to have been made on the

date on which the application for

amendment has been filed.

* * *

13.... The prayer for declaration of title

and recovery of possession shall be

deemed to have been made on the date

on which the application for amendment

was filed.

10. From the ratio of the aforesaid

judgments, following points emerge:

(a) merits of the averments sought to be

incorporated by way of amendment are

not to be judged at the stage of allowing

the prayer for amendment;

(b) the dominant purpose of the

amendment is to minimise the litigation;

26

(c) the amendment once allowed and

incorporated relates back to the date of

the initial institution of the suit;

(d) the Court, however, in appropriate

case may restrict the application of

doctrine of relation back and permit the

application of the amendment from the

date the amendment is allowed.

11. This principle has been enunciated by

the Hon'ble Apex Court in Siddalingamma

v. Mamtha Shenoy, (2001) 8 SCC 561

wherein the Court observed: (SCC P.566,

para 10)

10.... On the doctrine of relation back,

which generally governs amendment of

pleadings unless for reasons the court

excludes the applicability of the doctrine

in a given case, the petition for eviction

as amended would be deemed to have

been filed originally as such and the

evidence shall have to be appreciated in

the light of the averments made in the

amended petition"

27

12. Mr C.B. Goel, learned counsel has

strenuously argued that the a amendment

in the present case should be treated to

have effected only from 10-11-1994 and the

suit for pre-emption is deemed to have

been instituted on the said date on the

ground of the plaintiff being co-sharer. His

precise contention is that the suit for pre-

emption filed in the year 1994 under clause

'Fourthly' Section 15(1)(b) is barred by time

having been filed beyond one year from the

date of the sale in question. To appreciate

this contention, the sole question is whether

a new relief has been introduced way of

amendment. In Tarlok Singh, initially, the

suit was for permanent prohibitory

injunction. However, by way of amendment,

a new relief of specific performance was

introduced which was held to be barred by

time as the cause of action for the relief of

specific performance had accrued to the

plaintiff in the said case from the c date of

the execution of the agreement to sell dated

21-12-1984. Relief of specific performance

was introduced in the year 1989 which was

admittedly beyond three years from the

28

date cause of action accrued. I have

already extracted the relevant observations

of the Hon'ble Supreme Court in regard to

the amendment. Applying the test to the

fact of the present case, the plea of Mr Goel

is not sustainable. In the instant case, it

was a suit for pre-emption from the initial

day. Initially, the ground for seeking relief

was that the plaintiff is the brother of the

defendant vendor This was one of the

grounds available under law by virtue of

clause Secondly of Section 15(1)(a) of the

Act. This provision has, however, come to

be struck down by the Supreme Court in

Atam Parkash. The plaintiff by asking for

amendment sought to introduce an

additional ground on the plea that besides

being the brother, he is also a co-sharer in

the suit land. As observed by the Hon'ble

Supreme Court, and is evident from the

judgment impugned as also the report of

the trial court dated 7-3-2006, there is

sufficient material/evidence already on

record prior to the introduction of the

amendment to establish that the plaintiff is

the co-sharer with the defendant vendor.

29

Through the amendment only, a new

ground has been incorporated and not the

new relief. Since the suit seeking the relief

of pre-emption was instituted within the

time, by introduction of a new ground to

support the relief, the suit cannot become

time-barred. In the present case, the

doctrine of relation back of the amendment

has to apply as no new or fresh relief has

been incorporated. Apart from above, there

is another reason to decline the prayer of

the appellants. It is settled law as is evident

from the ratio of the judgment in

Siddalingammas, that the court in

appropriate cases while allowing the

amendment, may restrict the application of

doctrine of relation back and permit the

amendment from the date of the

amendment. In the present case, the order

of the Apex Court dated 10-11-1994 is clear

and unambiguous in its terms. No such

restriction has been imposed. To the

contrary, the amendment rejected by this

Court has been allowed primarily on the

ground that the amendment is based upon

admitted facts on record. I am of the

30

considered view that the intention of the

Apex Court in allowing the amendment

was/is to apply the amendment without

excluding the doctrine of relation back

which normally and generally governs the

amendment of pleadings." (emphasis

supplied)

11. In our opinion, there is no merit in the

submissions of the learned counsel. A reading of

the order passed by this Court shows that the

application for amendment filed by Respondent 2

was allowed without any rider/condition.

Therefore, it is reasonable to presume that this

Court was of the view that the amendment in the

plaint would relate back to the date of filing the

suit. That apart, the learned Single Judge has

independently considered the issue of limitation

and rightly concluded that the amended suit was

not barred by time.”

*******The learned First Appellate Court has considered the starting

point of time of the cause of action. The learned First Appellate

Court has considered that the trial Court has held that, the plaintiff

was the title holder of the suit property, which was affirmed by the

learned Appellate Court vide its judgment dated 21.07.2003,

passed in Civil Appeal No. 27-A/2003 and he stated that the

31

property of schedule-B admeasuring 9.75 acres was given to the

defendants to earn their livelihood, who have filed an application

before the Tahsildar, Sitapur for partition of the said property in the

year 1986 and then the plaintiff had filed the suit in the year 1986,

when they came to know about the dispute, and thus the cause of

action was first arose in the year 1986. The suit filed by the plaintiff

was dismissed by the learned trial Court for the reason that he has

not claimed for possession of 9.75 acres of land and during

pendency of the first appeal, the plaintiffs had filed an application

under Order VI Rule 17 CPC for which the matter was remitted

back by the learned Appellate Court and the learned trial Court has

allowed the application for amendment and then the amendment

was incorporated in the plaint, therefore, the cause of action arose

in the year 1986 and within 12 years, the suit for possession was

filed by the plaintiffs. It has also been observed that the defendants

have not claimed their title by adverse possession and have not

filed any counter suit, therefore, the plaintiffs cannot be non-suited.

The learned First Appellate Court has considered that the cause of

action was arose in the year 1986 and the suit is filed well within its

limitation period and has passed a decree in favour of the plaintiffs.

12.At the outset, it is well settled that in a second appeal under

Section 100 CPC, interference by the High Court is confined strictly

to substantial questions of law. The first appellate Court is the final

Court of fact, and its findings cannot be disturbed unless shown to

be perverse, based on no evidence, or contrary to settled legal

32

principles. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar,

(1999) 3 SCC 722. the Hon’ble Supreme Court held that

the High Court cannot interfere with concurrent findings of fact

unless such findings are perverse or based on

misreading of evidence. In the present case, the first

appellate Court has reappreciated the evidence and recorded a

reasoned finding that the suit is within limitation and that the

plaintiffs are entitled to recovery of possession. The appellants

have failed to demonstrate any perversity or legal infirmity in such

findings.

13.The principal defence of long possession since 1954–55

and reliance on mutation entries does not advance the appellants’

case. The evidence, including the testimony relied upon by them,

indicates that the initial possession was permissive in

nature. Mutation entries are fiscal in character and do not

confer or extinguish title, as held in Suraj Bhan v. Financial

Commissioner, (2007) 6 SCC 186. In any event, the appeal

does not substantively press a claim of adverse possession, and

there is no material demonstrating hostile assertion of title so as to

attract limitation under Article 65 of the Limitation Act. The first

appellate Court has rightly concluded that the defendants failed to

establish facts necessary to non-suit the plaintiffs on limitation.

14.As regards the amendment incorporating the relief of recovery of

possession, the original suit was for declaration of title and

33

permanent injunction. Upon a finding that the plaintiffs were not in

possession, the amendment merely sought consequential relief

flowing from the same cause of action and foundational pleadings.

In Sampath Kumar v. Ayyakannu , (2002) 7 SCC 559 the

Supreme Court held that an amendment adding relief of

possession in a suit for declaration may be permitted even if

limitation has expired, provided it is based on the same cause of

action and avoids multiplicity of proceedings. Likewise, in Baldev

Singh v. Manohar Singh, (2006) 6 SCC 498 it was reiterated that

amendments necessary for determining the real controversy

should ordinarily be allowed if they do not introduce a new cause of

action. The amendment in the present case did not alter the

fundamental nature of the suit but only sought consequential relief

after adjudication of title.

15.The contention that the cause of action arose in 1954–55 merely

on the basis of mutation is legally untenable. The first appellate

Court, being the final Court of fact, has carefully examined the

pleadings and evidence and recorded clear findings that the

plaintiffs’ title stands established, the defendants failed to displace

that title, the amendment was legally permissible, and the suit is

within limitation under Article 65. No perversity, misreading of

evidence, or misapplication of law has been shown. The

substantial question of law is accordingly answered in favour of the

respondents/plaintiffs and against the appellants.

34

16.In view of the foregoing analysis, this Court holds that the learned

first appellate Court was fully justified in reversing the judgment

and decree of the trial Court and in decreeing the suit by holding it

to be within limitation. The appellants have failed to establish any

substantial question of law warranting interference under Section

100 CPC.

17.Accordingly, the second appeal being devoid of merit deserves to

be and is hereby dismissed.

18.Parties to bear their own costs.

19.An appellate decree be drawn accordingly.

Sd/-

(Ravindra Kumar Agrawal)

Judge

ved

35

HEAD NOTE

******Amendment made in the plaint would relate

back to the date of institution of the suit unless

otherwise directs by the Court while allowing the

application for amendment.