Gayathri Womens Welfare Association vs Gowramma & Anr

necessary to make a detailed reference to the

chequered history of the litigation between the parties.

We may, however, briefly narrate the facts.

4. The appellants herein were the plaintiffs before the

trial court and the respondents were the defendants.

5. The appellant is an Association registered under the

Societies Registration Act. The appellant contends that

it purchased 2 acres 30 guntas of land in Sy.No.110/2

of Laggere Village (the schedule property) under an

agreement of sale dated 26th November, 1988 from its

vendors Sri B.C. Vijayakumar and Smt. Mayamma. In 3

part performance of this agreement of sale, the

appellant was put in possession of the schedule

property. The appellant and is members are in

peaceful possession and enjoyment of the same. In the

month of December, 1998, the respondents tried to

interfere with the appellant's possession and

enjoyment of the schedule property and therefore, they

filed O.S.No.163 of 1999 for grant of decree of

permanent injunction.

6. The respondents 1 and 2 entered appearance before

the trial court, filed written statement inter alia contended

that they are the owners of a portion of land in Sy.No110/1

of Laggere village and the appellants are trespassing into

their property. The respondents, therefore, opposed the

claim of the appellants. On the basis of the pleadings, the

trial court framed the following three issues for its

consideration:

"1. Whether the appellant proves that it has been in

lawful possession of the suit schedule property ?

4 2. Whether the appellant proves interference?

3. To what order and reliefs the parties are entitled ?"

7. Before the trial court, the appellant examined six

witnesses as PWs1 to 6 and got marked Exs.P1 to P58. The

respondents examined one witness as DW-1 and got

marked Ex.D1 to D44. The trial court after hearing both the

parties and on appreciation of the pleadings oral and

documentary evidence on record held that the appellants

are in peaceful possession and enjoyment of the schedule

property; there is interference by the respondents and

consequently, decreed the suit of the appellants for

permanent injunction vide judgment

dated 4th August, 2005.

8. Aggrieved by this judgment and decree of the trial

court, the respondents approached the High Court of

Karnataka in RFA No.497 of 2002. The High Court by its

judgment dated 18th June, 2002 allowed the appeal, set

aside the judgment and decree of the trial court and 5

remanded the matter to the trial court for fresh disposal in

accordance with law. The High Court while remanding the

matter observed as under :

"Therefore, keeping in view the submissions made, I deem it desirable that fresh survey is to be carried out in this suit by the Assistant Director of Land Records (hereinafter referred to as `ADLR') by giving notice to both the parties and in their presence the survey is to be made. The appellants are however entitled to produce the records of the survey done earlier as an additional document before the trial Court and after survey, considering the reports of the Surveyor and the additional documents, if any, and if necessary by allowing oral evidence, the trial court shall dispose of the suit in accordance with law."

9. After remand from the High Court, the respondents

amended their written statement and incorporated counter

claim to direct the appellants to demolish the structures put

up subsequent to passing of the status quo order by the

trial Court on the schedule property mentioned in the

written statement. To this counter claim of respondents,

the appellants filed written statement. On the basis of the

amended pleadings, the trial court framed the following two

additional issues:

6

"1. Whether the respondents prove that the appellant

Association have erected temporary sheds on the

schedule property subsequent to passing of

interim order in the above said suit.

2. Whether the respondents are entitled to the relief

of Mandatory Injunction by way of counter

claim."

10. After remand and framing of additional issues, both

the parties adduced oral evidence and produced additional

documents. Pursuant to the directions issued by the High

Court in RFA No.497 of 2002, the trial court appointed

Assistant Director of Land Records (hereinafter referred to

as `ADLR') as Court Commissioner to survey the schedule

property in the presence of both the parties. Accordingly,

the Court Commissioner conducted survey of the schedule

property and submitted his report to the trial court. The

Court Commissioner was examined as CW-1 and through

him three documents came to be marked as Ex.C1 to

Ex.C3.

7

11. Again the trial court after hearing both the parties and

upon appreciation of the pleadings, oral as well as

documentary evidence, on record decreed the suit of the

appellants by judgment and decree dated 4th August, 2005.

At the same time, the trial court dismissed the counter

claim filed by the respondents.

12. Aggrieved by the dismissal of the counter claim, the

respondents again came before the High Court in Regular

First Appeal No.1732 of 2005. It was conceded before the

High Court that the respondents do not have any grievance

in so far as the trial court decreed the suit of the appellants.

The only marginal issue raised by the respondents was that

the judgment and the decree of the trial court had to be

classified with reference to the survey conducted by the

ADLR after the matter was remanded by the High Court.

The other grievance made by the respondents was that the

trial court had committed a serious error in not decreeing

the counter claim. This, according to the respondents, has 8

resulted failure of justice. In support of this submission, the

respondents had relied upon the following judgments :-

a. Ishwardas Vs. The State of Madhya Pradesh &

Ors.1

b. Sampath Kumar Vs. Ayyakannu and Another2.

c. Jag Mohan Chawla & Anr. Vs. Dera Radha Swami

Satsand & Ors.3

d. K.Moosa Hajji's Widow Smt.Kannadiyil Ayissu &

Ors. Vs. Executive Officer Sree Lakshmi

Narasimha Temple4.

e. Nanduri Yogananda Lakshminarasimhachari &

Ors. Vs. Sri Agastheswaraswamivaru5.

f. Surinder Singh Vs. Kapoor Singh (dead) through

Lrs. & Ors.6

13. On the other hand, the appellants supported the

judgment of the trial court on the ground that they had

1 1979 (4) SCC 163 2 JT 2002 (7) SC 182 3 1996 (4) SCC 699 4 AIR 1996 SC 2224 5 AIR 1960 SC 622 6 2005 (5) SCC 142 9

been put in possession of the land on the basis of the

survey conducted in the year 1981, under the agreement of

sale dated 26th November, 1988. The survey in 2003 after

remand, by virtue of order of the High Court

dated 18th June, 2002 in RFA No.497 of 2002, however,

indicated that the appellants were in possession of a portion

in Survey No.110/1 and another portion in Survey

No.110/2. It was the case of the appellants that unless they

are legally dispossessed by due process of law, they were

entitled to continue in the portion occupied by them in

Survey No.110/1. In support of their submission the

appellants relied on a judgment of this Court in

Rohit Singh & Ors. Vs. State of Bihar & Ors.7.

14. Upon consideration of the entire issues, the High

Court concluded that the plaint schedule property of the

appellants to the extent of 2 acres and 30 guntas was in

survey No.110/2 of Laggere Village. The High Court also

held that the survey dated 24th March, 1981 on the basis of

7 2006 (12) SCC 734 10

which the appellants had been put in possession on a

portion of survey No.110/1 and portion of survey No.110/2

had been set aside by the Joint Director of Land Records

(hereinafter referred to as `JDLR) on 22nd June, 1998 in

Appeal No.4/98. The High Court noted that this order of

JDLR was prior to the filing of the suit before the trial court

on 6th January, 1999. The fact that the appellants were in

possession of portions of Sy.No.110/1 and Sy.No.110/2

ought to have been pleaded in the original plaint. It is

further observed that, in any event, the appellants ought to

have amended the plaint contending that they are in

possession of a portion of Sy.No.110/1 and a portion in

Sy.No.110/2. Instead of making the necessary averments in

the original plaint or amending the pleadings, the prayer of

the appellants remained that they are in possession

of 2 acres and 30 guntas in Survey No.110/2. The High

Court further noted that the location of 2 acres and

30 guntas in Survey No.110/2 was clearly specified in the

survey sketch prepared by the ADLR in the year 2003. This

is also depicted in Ex.C3. The High Court noted that the 11

learned counsel for the respondents had no objection for

grant of decree for permanent injunction in favour of the

appellants, classified by the survey of 2003. Relying on the

submission of learned counsel for the respondents, the High

Court has confirmed the decree of permanent injunction in

favour of the appellant, with the modification in reference to

the survey sketch Ex.C3.

15. With reference to the counter claim, the High Court

observed that upon remand of the matter by the High Court

in RFA No.497 of 2002, the trial court permitted the

respondents to amend the written statement to incorporate

the relief of counter claim for mandatory injunction. After

the respondents had filed the amended written statement,

the appellants filed the written statement to the counter

claim. On the basis of the amended pleadings, the trial

court had framed additional issues. Upon the pleadings of

the parties and upon consideration of the material on

record, as noticed earlier, the trial court again decreed the

suit of the appellants but dismissed the counter claim. 12

16. During the pendency of the appeal before the High

Court, the respondents filed an application seeking

amendment of the written statement to include the

additional prayer in the counter claim for recovery of

possession of the suit schedule property falling within

Survey No.110/1. The High Court noticed that in the

normal course an application for amendment of the written

statement at the stage of appeal from the original decree

was not entertainable. However, since the dispute was

pending between the parties from the year 1981 and the

suit was pending since 1999, no injustice would be caused

to the appellant if the prayer for possession was also

permitted to be incorporated in the counter claim.

Justification given for taking such a view was to avoid

multiplicity of proceedings. To buttress its conclusion, the

High Court relied on a judgment of this Court in the case of

Sant Lal Jain Vs. Avtar Singh8. Allowing the appeal filed

8 AIR 1985 SC 857 13

by the respondents, the High Court passed the following

order :-

"1. The appeal is partly allowed.

2. The impugned judgment and decree of the trial court decreeing the suit of appellant for permanent injunction is modified specifying that the plaint schedule property as ABFH shown in green colour in survey sketch.

3. The respondents or anybody claiming under them are hereby permanently restrained from interfering from the peaceful possession and enjoyment of the plaint schedule property as stated above.

4. The impugned judgment and decree of the trial court dismissing the counter claim of the respondents is hereby set aside.

5. The application filled by the respondents for amendment of the counter claim is hereby allowed.

6. The learned counsel for the respondents to amend the counter claim of the written statement before the trial court within two weeks from the date of receipt of the order. The trial court to provide an opportunity to the appellants to file additional written statement for this counter claim and to decide the matter in accordance to both the parties.

14 7. In view of the fact that already abundant evidence available on record and the matter is pending for a long time, a direction is issued to the trial court to expedite the matter and to dispose the counter claim of the of the respondents as expeditiously as possible and in any event not later than four months from the date of receipt of copy of this order."

It is the aforesaid order which is challenged by the

appellants herein.

17. We have heard the learned counsel for the parties.

18. Mr. Vishwanatha Shetty, learned counsel for the

appellants submitted that the judgment of the High Court

runs counter to the law laid down by this Court in the case

of Ramesh Chand Ardawatiya Vs. Anil Panjwani9 and the

judgment of this Court in Rohit Singh's case (supra).

Learned counsel further submitted that the mere fact the

respondents now wish to incorporate the prayer of

possession of the suit schedule property falling within

Survey No.110/1, is sufficient proof of possession of the

9 2003 (7) SCC 350 15

property by the appellants. Therefore, the trial court had

not committed any error in granting the decree of

permanent injunction for the entire suit schedule property.

The appellant and its members have built a number of

residential building and their members are residing in those

houses. Now if the respondents wish to take possession of

the aforesaid property they would have to seek the

necessary relief in appropriate proceedings, i.e., by filing a

separate suit for possession. According to the learned

counsel, the High Court had committed an error of

jurisdiction in permitting an amendment of the counter

claim when the dispute had already been pending between

the parties for more than 27 years. It is further the

submission of he learned counsel that by now incorporating

the prayer for possession, the respondents have

successfully obliterated the decree passed in their favour by

the trial court. He submits that by adopting such a

circuitous route, the respondents are trying to avoid the

legal objection including that the suit for possession is

barred by limitation which would be open to the appellants, 16

if such suit was to be filed now by the respondents with

regard to the portion of the suit schedule property falling

within Survey No.110/1.

19. On the other hand, Mr. Balgopal, learned senior

counsel appearing for the respondents also relied on certain

judgments of this Court, in support of his submission that

an amendment can be allowed by the court, at any stage of

the proceedings notwithstanding the law of limitation. He

has pointed out that the law is well settled that the

amendments in the pleadings are to be liberally permitted

by the court. The only rider is the court being satisfied that

such amendment is necessary for the determination of the

real question in controversy. In support of his submissions,

the learned counsel has made particular reference to the

judgment of this Court in Revajeetu Builders &

Developers Vs. Narayana Swamy & Sons10 and Dhanpal

Balu Lhawale Vs. Adagouda Nemagouda Patil11.

10 2009 (10) SCC 84 11 2009 (7) SCC 457 17

20. Learned counsel by making a detailed reference to the

factual situation has submitted that the boundaries of the

land were fixed in the presence of the parties

on 3rd March, 2000 by the ADLR. The order of the ADLR was

upheld by the Revenue Authorities. The Karnataka

Appellate Tribunal dismissed Appeal No.398 of 2001 filed by

the appellants on 13th December, 2001. The order of the

Tribunal was challenged by the appellants in the High

Court of Karnataka in Writ Petition Nos.2661-64 of 2002.

The High Court dismissed the aforesaid writ petition by

order dated 4th March, 2002. In view of the above, the

matter regarding hudbust and fixing of boundaries and

rights of interest over the respective portions of the land

between the vendors of the appellants on the one hand and

the respondents had attained finality.

21. This apart, after the remand of the matter by the High

Court in RFA No.497 of 2002, the ADLR again conducted

the survey on 25th July, 2003. At that time, the survey

showed only 27 constructions in the disputed area i.e. 18

survey No.110/1. Only 16 constructions were in the land

belonging to the appellants in survey No.110/2. The survey

report of the ADLR clearly demonstrated that the appellants

had encroached on the land belonging to the respondents.

This had necessitated the amendment to the counter claim

for incorporation of the plea for possession of the same. It

was next submitted by the learned counsel that the High

Court was fully justified in allowing the application under

Order VI Rule 17 seeking amendment of the counter claim,

the aforesaid application was filed along with RFA No.1732

of 2005. According to the learned counsel, the order passed

by the High Court under appeal was fully justified in the

interest of justice.

22. Learned counsel then submitted that the judgment of

this Court in Rohit Singh's case (supra) is not applicable

to the facts of this case. It is still further submitted by the

learned counsel that the counter claim of the respondent is

independent of the claim made by the appellants. It stands

on a different footing. The counter claim is required to be 19

treated as an independent suit in view of the provisions of

Order VIII Rule 6A of the Code of Civil Procedure. Finally, it

is submitted by the learned counsel that the appellants are

not a bonafide litigants. Till date, the sale deed has not been

executed in their favour by the vendors. They are raising all

frivolous objections only on the basis of an alleged

agreement for sale. According to the learned counsel, the

appellants have been put up by the legal heirs of the

original owners from whom the respondents had purchased

the land.

23. We have considered the submissions made by the

learned counsel for the parties. The trial court upon a

detailed appreciation of the evidence led by the parties

concluded that on the basis of the material on record, it can

be said that the possession of the appellant in respect of the

plaint schedule property as against the respondents was

long, settled and uninterrupted. On the basis of the

aforesaid conclusion, the trial court proceeded to decide the

issue with regard to the counter claim of the respondents. 20

24. It was noticed that the respondents wanted a direction

in the nature of the Mandatory Injunction, to be given to the

appellant to demolish the illegal construction, which came

subsequent to the passing of the status quo order. We may

notice here that the status quo order referred to by the trial

court had been passed on 7th January, 1999. The trial

court, however, observed that "the order of status quo was

granted in respect to disputed property. The disputed

property is what is described in the plaint schedule and not

in the schedule to the written statement." Therefore, it was

observed that the respondents would have the cause of

action available to seek possession based on title and not on

the basis of mandatory injunction on account of violation of

status quo order. In these circumstances, the trial court

observed that the appropriate remedy available to the

respondents is to sue for possession.

25. In our opinion, the High Court, while allowing the

claims of the respondent to include the prayer for 21

possession in the counter claim, failed to appreciate that

the order passed by the trial court did not cause any

prejudice to the respondents. The trial court had merely

held that the remedy of an independent suit was available

to the respondents.

26. In our opinion, the judgments relied upon by the

respondents are really of no assistance in the facts and

circumstances of this case.

27. In Nanduri Yogananda Lakshminarasimhachari Vs.

Sri Agastheswaraswamivaru12, this Court observed that the

amendment could be permitted in a plaint as there was no

new fact to be alleged and the parties were alive to the real

nature of the dispute.

28. In the case of Pandit Ishwardas (supra), it has been

observed as follows :-

12

AIR 1960 SC 622 22

"There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."

These observations clearly indicate that one of the

circumstances which will be taken into consideration before

an amendment is granted is the delay in making the

application seeking such amendment and, if made at the

appellate sage, the reason why it was not sought in the trial

court. In the present case, not only there is wholly

untenable delay in the application but the appellants had a

decree for permanent injunction in their favour.

23 29. In the case of Jagmohan Chawla (supra), this Court

considered the scope of Rule 6A to 6G of Order VIII CPC and

observed as follows:-

"It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6-A to 6-G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the appellant laid the suit, on his own cause of action. In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter- claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires."

The aforesaid observations, in our opinion, have no

relevance to the controversy in the present case, as the

claim of the respondent has been rejected by the trial court

on the ground that the cause of action arose a long time

ago.

24

30. In the case of Revajeetu Builders (supra), this Court

reiterated the very wide discretion the Courts have in the

matter of amendment of pleadings. These observations

were in the context of an application filed by the appellant,

seeking amendment of the original plaint including the

prayer clause being rejected by the High Court upon coming

to a definite conclusion that the appellant while seeking

permission to amend the plaint is trying to introduce a new

case, which was not his case in the original plaint and the

proposed amendment, if allowed, would certainly affect the

rights of the respondents adversely. It was also held that

any such amendment, which changes the entire character

of the plaint, can not be permitted and that too, after a

lapse of four years and after the institution of the suit. This

Court, upon a detailed consideration of the historical

background of Order VI Rule 17 and upon a comprehensive

survey of the case law, concluded that the amendment can

be permitted, if it was necessary for the determination of the

real question in controversy. If that condition is not 25

satisfied, the amendment can not be allowed. It was also

observed as follows:-

"22. .... The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

31. In our opinion, the decision of the trial court is in

conformity with the aforesaid principles. The trial court has

clearly held that the cause of action for the relief of

possession arose to the respondents many years ago. They

may, therefore, have a cause of action, if any, for an

independent suit. In the aforesaid case, the Court further

reiterated the principle in Ganga Bai Vs. Vijay Kumar13

wherein it was rightly observed :

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court."

13 1974 2 SCC 393 26

32. Similarly in Dhanpal Balu (supra), this Court

permitted the amendment in the facts and circumstances of

that case. Thus the judgment would not advance the case of

the appellant in any manner.

33. We may notice here the observations made by this

Court in the case of Ramesh Chand (supra) which may be

of some relevance. Upon considering the ratio of earlier

cases in the case of Sangaram Singh Vs. Election

Tribunal, Kotah14, Arjun Singh Vs. Mohindra Kumar15

and Laxmidas Dayabhai Kabrawala Vs. Nanabhai

Chunilal Kabrawala16, it was held that a right to make a

counter claim is statutory and a counter claim is not

admissible in a case which is admittedly not within the

statutory provisions. It is further observed that :

"Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up 14 AIR 1955 SC 425 15 AIR 1964 SC 993 16 AIR 1964 SC 11 27

a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter- claim against the claim of the appellant preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed. Thirdly, a counter- claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under Order 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under Order 8 Rule 9 CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter- claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the court, the court would be justified in exercising its discretion not in favour of permitting a belated counter- claim. The framers of the law never intended the pleading by way of counter-claim being 28

utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced."

These observations make it clear that generally speaking

the counter claim not contained in the original written

statement may be refused to be taken on record, especially

if issues have already been framed. In the present case, the

counter claim is sought to be introduced at the stage of

appeal before the High Court.

34. In such circumstances, we are unable to accept the

conclusions of the High Court that the discretion exercised

by the trial court was in any manner, illegal or arbitrary in

rejecting the counter claim of the respondents. We may

notice here the observations of this Court in the case of

Rohit Singh (supra) which are as follows :-

"A counterclaim, no doubt, could be filed even after the written statement is filed, but that 29

does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so- called counterclaim of Respondents 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction."

These observations would show that the dismissal of the

counter claim by the trial court was neither illegal nor

without jurisdiction. In fact the direction issued by the High

Court would clearly run counter to the aforesaid

observations. In the aforesaid case, this Court was

considering a situation where the evidence had been closed,

arguments on behalf of the respondents had been

concluded, the suit was adjourned for arguments of the

appellants, the suit was dismissed for default.

Subsequently, it was restored. Thereafter the respondents

filed an application for amending the written statement. The

counter claim was filed by the intervener. In these

circumstances, it was observed that at this stage no counter

claim could be entertained.

30

35. In the present case, after the matter had been

remanded back, the trial court again decreed the suit of the

appellants, the counter claim was dismissed for the reasons

stated in the judgment of the trial court. We may restate

here that the prayer in the original counter claim was only

for a mandatory injunction to demolish the illegal

structures in Sy.No.110/1. It was only when the Regular

First Appeal was filed for challenging the original decree

that the respondents made an application under Order VI

Rule 17 for amendment of the original written statement to

incorporate the counter claim with a prayer for possession

of the land in dispute in Survey No.110/1. In such

circumstances, the High Court erred in disturbing the

findings recorded by the trial court.

36. The matter herein symbolizes the concern highlighted

by this Court in the case of Ramesh Chand (supra).

Permitting a counter claim at this stage would be to reopen

a decree which has been granted in favour of the appellants

by the trial court. The respondents have failed to establish 31

any factual or legal basis for modification/nullifying the

decree of the trial court.

37. We are of the considered opinion that the High Court

committed a serious error of jurisdiction in allowing the

appeal filed by the respondents. Consequently, the appeal is

allowed. The Judgment of the High Court is set aside.

................................J. [B.Sudershan Reddy]

................................J. [Surinder Singh Nijjar]

New Delhi;

January 11, 2011.