S.N. Phukan, C.J.
1. In this revision petition, the petitioners-defendants have assailed the order of the learned District Judge, Una. dated 25-11-1994 in CM. Application No. 203/94 passed in Court Appeal No. 3/1992, R.B.T. No. 228/93. The learned Court below rejected the application under Order 6. Rule 1 7 of the Code of Civil Procedure for amendment of the written statement with the alternative plea regarding adverse possession.
2. Brief facts of the case are that land comprising of Khasra Nos. 1095 and 1113 was owned by Lachhman Dass but in possession of Meghooqua2/3rd share and Dehru alias para for the remaining share as tenants-al-will. Both of them died before coming into force of Section 104 of the H.P. Tenancy and Land Reforms Act. 1975 and therefore, the tenancy of Meghoo was inherited by Udham Singh, plaintiff and Prem Singh in equal shares, Dehru succeeded by his sons Gurbachan Singh and Puran Singh defendants. They claimed that proprietary rights were conferred upon them, but in the revenue record Prem Singh was shown as tenant, and thereafter, as owner of l/3rd share in the suit land. Plaintiff (respondent No. 1) filed a suit for declaration that Prem Singh was not the son of Meghoo and therefore, he could not succeed tenancy rights in equal share of the plaintiff. Therefore, entries in the revenue record showing
Prem Singh as owner 1/3rd share were incorrect. It was further alleged that he was in possession of the whole 2/3rd share of Meghoo in the suit land firstly as tenant, then as an owner on coming into force of the H.P. Tenancy and Lund Reforms Act. 1975 On these facts he prayed for issuance of permanent injunction.
3. In the written statement it was not disputed that the plaintiff was son of Meghoo, but pleaded that Prem Singh was adopted, treated and brought up as on of Meghoo and, therefore, after his death Prem Singh succeeded to the tenancy rights of Meghoo along with the plaintiff in equal shares and thereafter he obtained the proprietary rights.
4. Issues were framed and after obtaining the evidence of the parties, the learned Sub-Judge rejected the plea that Prem Singh was the adopted son of Meghoo and he was entitled to succeed the tenancy rights of Meghoo. It was also held that plaintiff was’ succeeded 10 whole of 2/3rd share of late Meghoo as tenant and then acquired the proprietary rights under the law and further the entries in the revenue record were wrong. Hence the present petition for taking the plea of adverse possession.
5. Heard learned Counsel for the parties.
6. Though ii has been urged by relying on a decision of the Apex Court in Mohammad Bagar v. Naim-un-Nisa Bibi, AIR 1956 SC 548 that possession of one co-sharer is possession of all co-sharers and it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon, and for the statutory period. I am of the opinion that this law will apply at the time of passing the final order.
7. Another decision on which reliance has been placed is Sabura Ammul v. Ali Mohamed Nachiar, AIR 1970 Mad 411. In my opinion, this decision will come at the time of considering the final decision of the case.
8. The attention of this Court has been drawn to Haji Mohammed Ishaq Wd. S.K. Mohammed v. Mohammed Iqbal and Mohamed Ali, AIR 1978 SC 798 to bring home the point that in an application under Order 6. Rule 17 and Order 4l. Rule 27 of the Code of Civil Procedure regarding amendment of the written statement introducing a new case additional evidence should not be allowed. This Court is of the opinion that this is
not the case of additional evidence, as it is to he decided whether plea of adverse possession has to be allowed. The Court can definitely take the judicial notice of adverse possession if it comes of evidence, even if not pleaded.
9. The Apex Court in C.M. Vereekutty v. C.M. Mathukutty C.M. AIR 1981 SC 1533 has held that in a suit for partition with prayer for amendment of plaint on the ground that some properties had not been correctly and fully described in the original plaint schedule and due to ignorance some properties had been omitted, amendment can be allowed.
10. Punjab & Haryana High Court in Karam Dass v. Som Prakash. AIR 1986 P & H 89, held that as a general rule no plaintiff is entitled to a relief for which there is no foundation in the plaint but when on the pleadings and the issues and the evidence adduced the relief is clear, this general rule docs not apply because it is the duly of the Court to grant relief as the circumstances of the case would warrant even though it may not be asked for and the primary duty of Courts is to do justice.
11. Punjab & Haryana High Court in Gulwant Kaur v. Mohinder Singh, AIR 1972 Punj & Har 260, considered the amendment of the written statement and held that original plea of defendant that the property was gifted to her and that she was in possession of the house as owner from a particular date, thereafter a plea was sought to be introduced by way of amendment that if the original gift is not proved, she being in continuous possession of the property from a particular date has become absolute owner by adverse possession and it was held that the amendment should be allowed.
12. Punjab & Haryana Court in Musadi Singh v. Jaina. AIR 1990 (2) 282 (sic) considered the application under Order 6, Rule 17 of the Code of Civil Procedure and held that suit for declaration of the title in suit land as co-sharer and consequential relief of possession and the defendants denying the ownership and claiming their own right of ownership on the ground of adverse possession. Defendants in this case asserted their possession for the last 50 years and therefore, they acquired title for adverse possession. It was held that for proper adjudication of the dispute between the parties amendment asked for should be allowed.
13. I am in respectful agreement with the views expressed by the Punjab and Haryana High Court. I hold that if it si necessary to decide the dispute between the parties finally the alternative plea of adverse possession should be allowed to be taken. This will be in the interest of both the parties and for finally deciding the dispute between the parties. I am further of the opinion that even if adverse possession is not pleaded if the Court of its own finds from the evidence on record that there was a case for adverse possession it could be duly considered in the interest of justice.
14. For the reasons staled above, the petition is allowed and the impugned order is set aside. The Court below is directed to allow the amendment and it necessary to give a chance to the parties to adduce evidence to prove adverse possession.
15. The petition is allowed. Costs on the parties.