SHIVSHANKARA & ANR versus H.P. VEDAVYASA CHAR

Citation: [2023] 6 S.C.R. 359 · Decided: 29-03-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Dismissed

Cited by 4 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

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SHIVSHANKARA & ANR.
v.
H.P. VEDAVYASA CHAR
(Civil Appeal No. 10215 of 2011)
MARCH 29, 2023
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Abatement: Abatement of suit – Non-joinder of necessary
parties – Non-impleadment of all other legal heirs of deceased
defendant – Effect of – Held: In the event of death of one of the
defendants, when the estate/interest was being fully and substantially
represented in the suit jointly by the other defendants along with
deceased defendant and when they are also his legal representatives,
by reason of non-impleadment of all other legal heirs consequential
to the death of the said defendant, the suit would not abate – Such
suit not bad for non-joinder of necessary parties of all his legal
heirs/representatives.
Amendment: Amendment of pleadings at appellate stage –
Permissibility of – Held: While dealing with such prayers, the Courts
should avoid hyper technical approach – Circumstances attending
to the particular case are to be taken into account to allow or not to
allow such prayer – It is allowable only in rarest of rare
circumstances – It cannot be granted on the mere request, especially
at the appellate stage – On facts, trial court allowed the amendment
of the plaint, and the defendants were given multiple opportunities
to file an additional written statement, which they did not avail and
the suit was decreed – Subsequent developments culminated in the
impugned judgment wherein the High Court declined permission to
amend the written statement to the defendants – High Court
observed that grant of amendment of written statement, if at that
stage would have necessitated framing of fresh issues and de novo
trial – Thus, no perversity or illegality with the rejection of the prayer
for amendment of the written statement.
Suit: Suit for possession, based on possessory title – Facts
disclosing no title in either party at the relevant time – Prior
possession – Relevance of – Held: In such circumstances, when the
facts disclose no title in either party, at the relevant time, prior
[2023] 6 S.C.R. 359
359
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SUPREME COURT REPORTS
[2023] 6 S.C.R.
possession alone decides the right to possession of land in the
assumed character of owner against all the world except against
the rightful owner.
Suit: Suit for injunction and for recovery of possession by
respondent against the appellants – Maintainability of – Held: On
a careful consideration of the available pleadings of the appellants,
the High Court held that they did not disclose their defence in their
written statement and at the same time did not even contend that
they are in possession of the suit property – Thus, the High Court
correct in holding the question of maintainability of the suit in the
affirmative and in favour of the respondent – Trial court after
carefully considering the evidence on record held that the respondent
is entitled to get back the possession of suit schedule property from
which he was dispossessed – After careful consideration of the
additional evidence recorded and transmitted to the High Court by
the trial court and considering all contentions and aspects, the High
Court only confirmed the judgment and decree of the trial court –
Thus, when the concurrent findings of the courts below are the
outcome of the rightful consideration and appreciation of materials
on record, they do not call for any interference.
Transfer of Property Act, 1882: s. 52 – Transfer of property
pending suit relating thereto – Doctrine of Lis pendens – Held:
Import of s. 52 is that if there is any transfer of right in immovable
property during the pendency of a suit such transfer will be non est
in the eye of law if it will adversely affect the interest of the other
party to the suit in the property concerned – Wherever TP Act is not
applicable, such principle in the said provision of the Act, based on
justice, equity and good conscience is applicable in a given similar
circumstance, like Court sale etc – On facts, the suit from which the
appeal arises was one based on possessory title, the legality of sale
deed need not be gone into in this appeal and rightly has not been
gone into by the High Court – High Court declined to act upon the
same, in the light of the doctrine of lis pendens.
Pleadings: Proof offered without pleadings – Relevance of –
On facts, claim for possession/ownership over the suit property by
the defendants – Original defendants failed to raise sufficient and
appropriate pleadings in the 

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