The court allowed the counter claim regarding adverse possession, emphasizing that the suit essentially remained a suit for possession, allowing the respondent to plead counter claim regarding ownership based on adverse possession.

Arun Bhansali, J.

This writ petition has been filed by the plaintiff aggrieved by the order dated 20.09.2012 passed by the learned trial court, whereby, his application under Order 8, Rule 6C Civil Procedure Code for exclusion of counter claim filed by the defendant has been rejected.

2. The facts in brief are that the petitioner filed a suit on 01.11.2001 for possession of a shop situated at village Sindhari, Barmer and arrears of rent against the respondent inter alia with the averments that the shop was let out at a monthly rent of Rs. 200/- in the month of January, 1986. It was further alleged in the plaint that the defendant agreed to purchase the suit shop for a sum of Rs. 51,000/- on 24.02.1996 and agreed to pay the consideration within a period of three months and also agreed to pay rent @ Rs. 500/- per month for the period of three months. Neither the rent was paid nor the amount of consideration was paid. It was then alleged that on 26.04.1996 the defendant called plaintiff and stated that he could not arrange for the amount of consideration and that he would pay him Rs. 60,000/- within a period of 30 months and, till such time the payment was made, he would pay him Rs. 500/- as rent. A memorandum (hand note) in this regard was executed by the respondent. The respondent has not paid rent for last three years and, therefore, the plaintiff was entitled to claim the arrears of rent and obtain the vacant possession of the shop in question. It is claimed that by notice dated 05.10.2001 the arrears of rent were demanded and the tenancy of the respondent was terminated. Despite notice, neither the possession has been handed over nor the arrears of rent has been paid, no reply to the notice has been given. It was also averred in the plaint that as the defendant has not paid the consideration of Rs. 60,000/- therefore, now he is not entitled to get the sale deed executed i.e. the right to get sale deed executed has come to an end. It was also alleged that the defendant started raising construction on the first floor, for which, the plaintiff gave telegram to stop the same. However, the illegal construction has not been removed. Importantly it was claimed in the plaint that defendant No.2 has been impleaded party as the disputed shop has been purchased by the plaintiff from defendant No.2 in the year 1984 and thereafter he has raised construction and has let it out to the respondent. The sale could not be executed, but as the respondent has taken possession of the suit property as tenant, therefore, the plaintiff has the right to file the suit. Ultimately, it was prayed that the possession of the shop be handed over to the plaintiff, decree for arrears of rent be passed and further Rs. 500/- per month be awarded for use and occupation till the possession of the shop is handed over to the plaintiff. The construction raised by the defendant be ordered to be removed by passing mandatory injunction.

3. The respondent No.1 Chagan Lal filed his written statement and disputed the averments made in the plaint. It was claimed that in fact the disputed land in question was purchased by him in the year 1985 and he got the shop constructed and started business in the said shop. It was claimed that it was agreed between the parties that a sum of Rs. 10,000/- would be paid at the time of registration of the sale, in the meanwhile, Gram Panchayat, Sindhari gave notice claiming the land to be of its ownership and, as such, the sale could not be registered. The allegations about agreeing to pay rent or letting out the shop to the defendant No.1 were denied. Ultimately, it was prayed that the suit being false, frivolous and fictitious be dismissed.

4. Alongwith the written statement, the respondent No.1 also filed a counter claim, wherein, on the basis of the facts alleged in the said counter claim, it was claimed that the defendant No.1, in the knowledge of the plaintiff, was in continuous possession of the shop since April, 1985 and, as su