Possession under an executory contract of sale is permissive and cannot be considered adverse, and seeking a declaration of adverse possession in a suit for specific performance of contract is inconsistent.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 2.12.2014 passed by the learned Ist Addl. Civil Judge (Sr. Division), Bhubaneswar in C.S.No.1842 of 2010. By the said order, the learned trial court rejected the application under Order 6 Rule 17 C.P.C. for amendment of the plaint.

2. The petitioner as plaintiff instituted the suit for specific performance of contract and other ancillary reliefs impleading the opposite parties as defendants. The case of the plaintiff is that the suit plot no.4626 having an area of A0.59 decimal was recorded in the name of late Nityanada Tripathy, defendant nos. 1 and 2 in the Consolidation R.O.R. published in the year 1984. The parties were in possession of their respective shares. The defendant no.1 was in possession of an area Ac.0.19 2/3 decimals from the northern side of the suit plot. To press his legal necessity, he evinced an intention to sell the same to the plaintiff, who is the owner of contiguous chaka. The defendant no.1 executed an agreement for sale, received a part consideration and delivered possession in favour of the plaintiff on 20.3.1997. He was ready and willing to perform his part contract. When defendant no.1 had not executed the sale deed, he instituted the suit seeking the aforesaid reliefs. While the matter stood thus, the plaintiff filed an application under Order 6 Rule 17 C.P.C. to amend the plaint. In the proposed amendment, the plaintiff sought to incorporate the plea that possession of the land was delivered to him. He is in possession of the suit land and acquired title by way of adverse possession. An alternative prayer has been sought for declaration that the plaintiff has acquired right, title and interest by way of adverse possession. The defendant no.1 filed objection. The learned trial court held that the proposed amendment will change the nature and character of the suit and rejected the same.

3. Mr. Sahu, learned counsel for the petitioner argued with vehemence that pursuant to agreement to sell, defendant no.1 has received a part consideration. He delivered possession of the suit land to the plaintiff. Thereafter the plaintiff merged the suit plot with his plot. The plaintiff is in possession of the suit land peacefully, continuously and with the hostile animus to defendant no.1 for more than a statutory period and, as such acquired title by way of adverse possession. The proposed amendment is formal and will not change the nature and character of the suit. The learned trial court committed a manifest illegality in rejecting the application for amendment.

4. Per contra, Mr.Patnaik, learned counsel for opposite party no.1 submitted that the plaintiff has instituted the suit for specific performance of contract. In the proposed amendment, he sought the prayer for declaration of title by way of adverse possession. The plea is inconsistent. He relied upon a decision of the Apex Court in the case of Mohan Lal (Deceased) through his Lrs. Kachru and others Vrs. Mirza Abdul Gaffar and another, AIR 1996 SC 910.

5. The seminal question hinges for consideration is whether the plaintiff can seek a declaration that he has acquired title by way of adverse possession in a suit for specific performance of contract ?

6. In Annamalai Chettiar and another v. Muthiah Chettiar and another, ILR (1965) Mad 254, a Division Bench of Madras High Court held thus:

"In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the position is different. The purchaser who gets possession in such cases is in possession in a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The animus of the purchaser throughout is that he is in possession of the property belonging to the vendor, and that the former's title has to be perfected by a duly executed registered deed of sale