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‑‑‑0. VI, R. 17‑‑Specific Relief Act (I of 1877), S. 12‑‑Amendment of plaint‑‑Justification for‑‑Plaintiff seeking transfer of disputed property through suit for specific performance against defendants by offering to pay balance price to them without asserting his own title to property, sought amendment of plaint to introduce plea of adverse possession of property‑‑Amendment sought being complete departure from previous position when title of respondents to property had never been challenged and no adverse claim had ever been made by applicant amendment seeking to introduce altogether new and inconsistent case, held, could not be allowed particularly when such amendment was not necessary to determine real question in controversy involved in suit.

P L D 1963 S C 533; P L D 1971 S C 762 and P L D 1964 S C 220 ref.

This is a Civil Revision application bringing into challenge the order passed by 1st Additional District Judge. Tharparker in F.C. Suit No. 5/78 whereby the application made by the present applicant under Order VI, Rule 17, C.P.C. for amendment of his plaint was dismissed. The relevant facts are that the applicant had filed a suit against the respondents for specific performance. The suit was based upon allegation that disputed agricultural land had first been leased out to the applicant by one Wadood Fazli in 1966 for 10 years and then in March 1967, the same Wadood Fazli had contracted to sell the said land as its exclusive owner in favour of the applicant at Rs.800 per acre amounting to Rs.91,500. It was stated that thereafter Wadood died leaving behind respondents 11 to 13 as his successors. However, on 2‑3‑1968 the disputed land was mutated in favour of respondent No. 1 to 10 and No. 11 to 13 jointly which was the result of claim made by respondents No. 1 to 10 that they were the joint transferees of this land from Settlement Department alongwith Wadood Fazli. The share of the respondents Nos. 11 to 13 amounting to 9 paisa in a rupee was thereafter transferred by them in favour of the applicant by registered sale‑deed. But the other respondents refused to transfer their interest to the applicants and hence the suit for specific performance was filed and prayer for transfer of shares of interest of respondents Nos. 1 to 10 only was made and Rs.51.200 was offered as the balance of sale price; suit was filed in 1978.

In W.S. filed by respondent No. 5 and adopted by respondents 1 to 4 and 6 to 9 on 1‑7‑1978, they took up the position that land had been originally allotted to all respondents from very beginning and they were the joint owners and tenants in common of the same and therefore, Wadood Fazli alone had no right to either lease out or contract to sell the land at least to the extent of the share of these respondents and that Wadood Fazli had by misrepresentation got the land mutated in his own name which was rectified on 2‑3‑1968 and finally set at rest on 23‑6‑1976.

On 2‑12‑1980 the applicant had made an application for amendment of plaint to the effect that they were entitled to remain in possession of the land and cannot be dispossessed except in due cause of law. But this application was disposed of as not pressed and the respondents' counsel undertook that the possession of the applicants would not be interfered with except in accordance with law. Thereafter on 17‑11‑1984 the applicant again moved the amendment application and sought to include a para. 14(a) in the plaint to the effect that the plaintiff is in possession of suit land as its owner since 1966 adverse to the rights of defendants. The same was offered by respondents Nos. 1 to

The 1st Additional District Judge dismissed this application on the ground that the amendment sought in respect of adverse possession would change the entire nature of the suit and even otherwise the same is not warranted by law. Mr. Muhammad Sharif applicant's counsel has submitted that Order VI, Rule 17 provides that all amendments shall be made as may be necessary to determine the real question in controversy. He also relied upon P L D 1963 S C 533 where the Supreme Court has considered the question of amendment of pleadings and has laid down the principles that pleadings which are not inconsistent may be allowed while amendment may not be allowed if it results in inconsistent pleadings. The Supreme Court has observed that there is no bar to a person relying upon more than one source of title. The test of consistency is laid down in the following words "No two facts can be said to be inconsistent with each other if both could have happened". This obviously means that if both the facts could not have happened then the same cannot be regarded as consistent. The Supreme Court has held that the plea that a document is forged and the plea that the document was executed under undue influence are inconsistent pleas. We shall examine the case of the applicant in the light of these principles.

Counsel also relied upon P L D 1971 S C 762' where it was held that plea of possession could be allowed to be added in a suit for declaration of title. But this case is obviously different because a person who is claiming a title in respect of a property but has omitted to claim its possession and therefore, seeks to ,add that plea is not taking upon inconsistent position from his previous s plea but is merely trying to add a prayer which would be the logical conclusion to seek if his plea of declaration of title was allowed. Therefore, this case is not applicable to the case of applicant.

Counsel also relied upon observations made by Supreme Court in P L D 1964 S C 220 to the effect that if it be his claim that he held it by virtue of a transfer which he regards as valid, he is obviously holding in his own right and not on behalf of the transferor in trust for him. These observations were made in the particular circumstances of the facts of that case before the Supreme Court and hence they cannot be applied to the facts of the present case where the applicant had based his case of specific performance on an agreement which he claims he had made with the owner of the lands in question and he was asking the Court to direct the defendants to convey their property to him. He had never claimed that he was the transferee of the interests of the present respondents Nos. 1 to 10 by virtue of that sale agreement.

Applying the principles of P L D 1963 S C 553 to the facts of the present case it appears to me that while filing the suit for specific performance against the respondent the applicant had clearly admitted the title of the respondents to the lands in question and was seeking its transfer by offering to pay the balance of the price to them right from 1978 till 1989 when he filed the present application for amendment he had never asserted his own title to the property although he had known the position of the respondents very well since 1976. The amendment which had been sought in 1980 was not based on any title of his own set up in the property by the applicant, but it was simply an effort to save himself from forcible dispossession of the plot without recourse to law. So this amendment was only for safeguarding his possession and till then the nature of the suit had remained unaltered, i.e. the suit was for seeking the transfer of property of the respondent against a price offered on the basis of contract of sale executed between applicant and Wadood Fazli in 1967.

The amendment sought in the application moved in 1984 was that the possession of the applicant was hostile to the respondents and he has completed statutory period of adverse possession and hence respondents be restrained from interfering with his possession. This amendment was a complete departure from the previous position where the title of the respondents had never been challenged and no adverse claim had been made by the applicant. This was completely inconsistent stand. A man cannot say at the same time that his opponent as owner should be directed to sell the property to him and then immediately say that I am the owner of this property and my opponent should be restrained from interfering with my possession based on adverse title. A man cannot be at the same time a purchaser seeking transfer of the property as well as the owner of the same property. This is a turn of 180 degrees being a geographical or geometrical compression, and hence it is not consistent with the original stand. The application was rightly disallowed.

This amendment was not necessary to determine the real question in controversy in a suit for specific performance which was based on contract while the amendment sought to change the suit for specific performance into a suit of declaration of title based on adverse possession.

Accordingly this, revision application is dismissed in limine

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