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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
Rohit B. Deo, J.
Dr. Om Prakash & Ors. - Appellants
Versus
Bhaurao - Respondent
Writ Petition No. 1351 of 2020
Decided On : 23-03-2022
Adverse Possession - Property Dispute - Code of Civil Procedure - Order VI Rule 17 - Second appeal 5/2009 - Prithi Pal Singh and another v. amrik Singh and others 2014(1) Mh.L.J. 610, Ram Niranjan Kajaria v. Sheo Prakash Kajaria and others 2016(3) Mh.L.J. 172, Chakreshwari Construction Pvt. Ltd. v. Manohar Lal 2017(5) Mh.L.J. 195, Ravinder Kaur Grewal and others v. Manjit Kaur and others (2019) 8 SCC 729, arundhati Mishra (Smt.) v. Sri Ram Charitra Pandey (1994) 2 SCC 29
Fact of the Case:
The plaintiff sought possession and permanent injunction of a property from the defendants. The defendants claimed ownership and sought to incorporate the plea of perfection of title by adverse possession through amendment of the written statement.
Finding of the Court:
The court found that the proposed amendment was not bona fide and appeared to be an attempt to protract the litigation. The court held that the defendants, who had claimed ownership of the property, could not be permitted to raise the plea of adverse possession at the fag end of the trial.
Issues: The main issue was whether the defendants should be permitted to incorporate the plea of adverse possession through amendment of the written statement.
Ratio Decidendi: The court held that mutually destructive or exclusive pleas stand on a different pedestal, and a person who has set a title in himself cannot be permitted to alternatively plea perfection of title by adverse possession. The concept of adverse possession pre-supposes that the claimant accepts the title of the adversary.
Final Decision: The court dismissed the petition and directed the trial Judge to decide the suit expeditiously within the next sixty days.
JUDGMENT
Rohit B. Deo , J. - Heard Mr. S. P. Kshirsagar, the learned counsel for the petitioners and Mr. Onkar Ghare, the learned counsel for the respondent.
2. The petitioners are the defendants in Special Civil Suit 3568/2001 instituted by the respondent plaintiff seeking decree of possession and permanent injunction qua the suit property which is described in paragraph 1 of the suit plaint as western portion admeasuring 25.03 square meters of the Municipal House 819 (new) 19 (old) situated in Ward 36, Mouza Nagpur.
3. It would not be necessary to narrate the minute details. Suffice it to state, that the plaintiff claims to be the owner of the suit property having purchased the same from Smt. Mangala Rangbal vide registered sale-deed dated 07.12.1993. The plaint averment is, that while the defendants were the owners of the western side portion of the suit property, vide registered sale-deed dated 14.09.1993, the defendants sold the said portion to Smt. Mangala Rangbal, with the result that the defendants do not have share or interest in the suit property.
4. The defendants in the written statement submitted that the plaintiff is not entitled to any right in the suit property. The defendants denied having sold their share to Smt. Mangala Rangbal. However, the defendants did not deny the execution of the sale-deed. Rather, the defendants contended that since Smt. Mangala Rangbal did not pay the balance consideration of Rs.9000/- (Rupees Nine Thousand), the sale is not complete. The defendants denied the title of the plaintiff. The defendants specifically submitted that since Smt. Mangala Rangbal did not acquire title under the sale-deed executed by the defendants, she could not have transferred title to the plaintiff. The defendants claimed to be the owners of the suit property, and on such premise, contended that the suit must be dismissed.
5. The defendants preferred an application under Order VI Rule 17 of the Code of Civil Procedure (Code) seeking amendment of the written statement, seeking to incorporate the plea of perfection of title by adverse possession. The plaintiff opposed the prayer seeking amendment of the written statement, inter alia contending that the only attempt is to prolong the litigation.
6. The learned trial Judge rejected the application seeking amendment of the written statement vide order dated 18.01.2020 inter alia observing that the suit is fixed for argument and judgment and that a new defence of adverse possession is sought to be introduced.
7. The defendants sought review of the order dated 18.01.2020. One of the grounds was that contrary to the observation of the trial Judge, the suit was not fixed for argument and judgment and that the evidence of the defendants is yet to be recorded. The defendants then submitted that the application seeking incorporation of the defence on the basis of adverse possession is moved in view of the decision in Second appeal 5/2009.
8. The learned trial Judge rejected the application seeking review by an elaborate order dated 12.02.2020.
The ground that the stage of the suit is incorrectly mentioned in the order under review is dealt with thus:
5] The first contention of Ld. advocate for defendant is that it is wrongly observed while rejecting the application for amendment that the matter is for final arguments. according to him the matter was for cross examination of the plaintiff in view of order below Exh.110 whereby permission to cross examine has been granted subject to costs.
6] It appears that earlier plaintiff lead evidence and no cross order was passed and set aside. Plaintiff also filed evidence close pursis at Exh.90 on 28.06.2013. No cross examination order was for the second time passed on 12.02.2015. application to set aside order is allowed on 09.02.2016. a review application Exh.114 against imposition of costs is filed by defendant on 25.02.2016 and same is rejected on 07.06.2016. The costs thereafter appear to have been paid on 02.07.2016. However, no cross
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