JUDGMENT Rajiv Sharma, J.
1. Heard Mr. Brijesh Kumar Saxena, counsel for the petitioners and Mr. P.C. Agrawal, counsel for the opposite parties 1 to13.
2. Briefly stated the fact are that one Daya Krishna, predecessors in interest of the plaintiffs/petitioners, purchased the plot of land, situated at Mohala Tehseenganj, Ward Daulatganj, Lucknow in auction sale, conducted by the Court of Civil Judge (South), Lucknow, as per Sale Certificate dated 2nd July, 1942 in Execution Case No. 333 of 1941 (Original Suit No. 4865/1936) of the Additional Judge, Small Causes Court, Lucknow. The opposites 2 to 4 encroached upon a portion of the said property and also took unlawful possession on 12th July, 1981. Hence, the suit was filed for perpetual injunction, declaration and possession in which pleadings were exchanged and evidence was also lead.
3. Subsequently, the petitioners moved an application under Order 6 Rule 17 C.P.C. seeking a decree for mandatory injunction against the defendants to the effect for removing the encroachments and constructions raised by them and for handing over the possession of the said property in Suit to the Plaintiff inter alia on the grounds that they had constructed and erected constructions about two years back, inspite of the injunction order in Suit, which was instituted in 1981.
4. The Trial Court vide order dated 3rd May, 2003 while rejecting the said application for amendment for amending the plaint on the basis that the application was belated and the plaintiffs have not made any application for condonation of delay. The said orders were assailed by the petitioners by filing a Civil Revision and the Revisional Court also dismissed the revision vide judgment and order dated 24.8.2004 inter alia on the ground that the revision against the rejection of the amendment application is not maintainable and further, there was no ground for interfering in the findings recorded by the trial Court.
5. Being aggrieved thereof, the instant writ petition has been filed inter alia on the grounds that the plaint of the plaintiffs/petitioners was based on title, pertaining to the property in Suit and even in case their dispossession took place several years ago, which may be in excess of 12 years, still the relief for recovery of possession in Suit of the plaintiffs, based on title, is legally permissible and the said Suit is legally maintainable in view of Article 64 of the Limitation Act.
6. According to the petitioner, the limitation for recovery of possession is not 12 years when the Suit is based on title, as provided under Article 64 of the Limitation Act, because such right of the plaintiffs can only be denied by acquisition of rights of adverse possession by the adversary and this plea has not been taken by the defendants and further it is not the case of the defendants before the Courts below with respect to the property in Suit.
7. A counter-affidavit has been filed wherein it has been submitted by the learned Counsel for the defendants/respondents that there is no illegality or infirmity in the orders passed by the trial Court and Revisional Court. He further argued that the Suit was instituted in the year 1981 and even after lapse of 24 years the same could not be decided only because of dilatory tactics of the petitioners. He further submitted that the Suit for mandatory injunction can be instituted within a period of three years and as such the relief for mandatory injunction could not be added after the lapse of three years. The application for amendment was moved on 20th July, 2001 whereas the statement of PW1 Shri Krishna Saxena was recorded in the year 1982. The sale deed was executed in favour of opposite party No. 12 in the year 1984 and even according to the statement of PW2 Ajay Kumar Saxena, possession was taken in the year 1984 and as such, the amendment application moved after 17 years from the date of alleged dispossession is not maintainable and has rightly been rejected being time barred to which no rejoinder affidavit has been filed.
8. In support of the submission of the learned Counsel for the petitioners, Mr. P.C. Agrawal has relied upon the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Ors. 2004 (1) JCLR 786 (SC).
9. In order to appreciate the rival contentions, the provisions of Section 34 of Specific Relief Act, 1963 and Articles 64 and 65 of the Limitation Act, 1963 are being reproduced hereinunder.
10. Section 34 of the Specific Relief Act reads as under:
34. Discretion of Court as to declaration of status or right -- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any declaration where the plaintiff, being able to seek further relief than a mere declaration of tile, omits to do so.
Explanation -- A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
11. Articles 64 and 65 of the Limitation read as under:
(a) where the suit is by a remainderman, a revisioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
12. On perusal of the provisions of Article 64, it is abundantly clear that the Suit for possession of immovable property based on pervious possession is 12 years from the date of dispossession, in case, the Suit is not based on title and Article 65 deals with the possession of immovable property or any interest therein based on title from the date when the possession of the defendant becomes adverse to the plaintiff.
13. It is not in dispute that the Suit for perpetual injunction, declaration and possession was filed in the year 1981 and it is not title Suit. The possession has already been taken away in the year 1984 as per the statement of Ajay Kumar Saxena (PW2) and as such, the limitation for filing a Suit for re-possession is 12 years, but the application for amendment under Order 6 Rule 17 C.P.C. was moved in the year 2001 much beyond the period of 12 years. Since the Suit could not be filed for possession after a period of 12 years, the amendment application cal also not be allowed.
14. I have gone through the impugned judgement of the Trial Court dated 3.5.2002, wherein it has been observed in categorical words that P.W.2 Ajay Kumar Saxena had stated in his statement that over the property in dispute, his possession was till the year 1984. The case was at the fag end of hearing when the application for amendment was made which is barred by Limitation Act. In my opinion the Trial Court was right in rejecting the application as would be evident from the perusal of the aforesaid sections of the Limitation Act, which prescribes the period of twelve years for institution of suit based on possession of immovable property. The controversy in this regard has also been set at rest by the Hon'ble Supreme Court in T.N. Alloy's case (supra) wherein it has been held that the Court as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application.
15. Having heard learned Counsel for the parties, I am of the opinion that that the amendment sought to be incorporated at the fag end of the hearing by the petitioner was not only delayed one but was made with ulterior motives to delay proceedings of the Suit.
16. In the facts and circumstances of the case, I do not find any error or illegality in the orders of the Courts below. Thus, no interference under Article 226 of the Constitution of India is called for.
17. Accordingly, the writ petition is dismissed. The interim order dated 23.11.2004 stands vacated. All the miscellaneous applications also stand disposed of accordingly.
18. The Suit pertains to the year 1981 and now we are running in 2008. More than 27 long years have passed and the parties are still litigating without any decision on their case. It is, in these circumstances, the trial Court shall proceed with the case with utmost sincerity and make an earnest endeavour to conclude the proceedings within a maximum period of six months. It is further provided that no adjournment at the drop of the hat shall be granted to any of the parties to the Suit.