Prior possession and appellate amendment limits: belated written statement changes, non-joinder, and abatement failed.

A belated amendment of the written statement at the appellate stage was refused because it was sought after inordinate delay, lacked explanation, and would have enlarged the remand into a fresh trial; that refusal was affirmed. A suit based on prior possession and alleged dispossession was held maintainable, while unpleaded reliance on third-party title, non-joinder, and abatement failed because evidence cannot cure missing pleadings and the estate was substantially represented. Concurrent findings that the plaintiff had prior possession, was forcibly dispossessed, and was entitled to possession and injunction were left undisturbed, as no perversity or patent illegality was shown and lis pendens applied to the later transfer.

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Issues: (i) Whether amendment of the written statement and permission to raise additional grounds could be allowed at the appellate stage; (ii) Whether the suit based on prior possession was maintainable and whether the objections of non-joinder of necessary parties and abatement could succeed; (iii) Whether the concurrent findings granting possession and injunction required interference.

Issue (i): Whether amendment of the written statement and permission to raise additional grounds could be allowed at the appellate stage.

Analysis: The requested amendment was sought after inordinate delay and without a satisfactory explanation for not raising it before the trial court. Allowing it at the appellate stage would have expanded the controversy, required fresh issues, and in effect led to a de novo trial. The proceedings on remand were confined to recording additional evidence and transmitting it to the High Court, and the scope of the remand could not be enlarged by a fresh amendment of the written statement.

Conclusion: The refusal to permit amendment of the written statement and to permit the new grounds was justified and is affirmed against the appellants.

Issue (ii): Whether the suit based on prior possession was maintainable and whether the objections of non-joinder of necessary parties and abatement could succeed.

Analysis: A suit founded on prior possession and alleged dispossession was maintainable, and the defence that title or better right lay with third parties was merely a plea of jus tertii. The record showed that the appellants had not adequately pleaded possession or title in their written statement, and evidence could not cure the absence of pleadings. The death of one defendant did not abate the proceedings where the estate was substantially represented by the surviving defendants and their successors, and the non-joinder objection also failed on the same footing.

Conclusion: The suit was maintainable, and the objections of non-joinder and abatement were rightly rejected against the appellants.

Issue (iii): Whether the concurrent findings granting possession and injunction required interference.

Analysis: The courts below had concurrently found that the plaintiff was in prior possession and had been forcibly dispossessed, while the appellants failed to establish any better right to possession. The later transfer relied upon by the appellants was ineffective against the plaintiff's possessory claim in the context of the pending litigation, and the principle of lis pendens applied. No perversity or patent illegality was shown to warrant interference under Article 136.

Conclusion: The concurrent findings and the decree for possession and injunction were left undisturbed against the appellants.

Final Conclusion: The appeal failed in full, and the judgment and decree of the High Court affirming the trial court's reliefs were maintained.

Ratio Decidendi: An appellate court will not permit a belated amendment of the written statement at the appellate stage where it would enlarge the scope of the remand or require a fresh trial, and a suit based on prior possession cannot be defeated by an unpleaded plea of third-party title or by objections of abatement where the estate is substantially represented.

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