Karnataka High Court
Narayan S Kurdekar vs Dawal Sab S/O Jani Sab Sathsanadi on 26 April, 2017
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
R
ON THE 26th DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REGULAR SECOND APPEAL NO.617 OF 2005
BETWEEN
NARAYAN S KURDEKAR
S/O SOMAIAH KURDEKAR
AGED ABOUT 68 YEARS,
BUSINESSMAN, R/O NO.35
MANJUNATH NAGAR, GOKUL
HUBLI
... APPELLANT
(BY SRI. F. V. PATIL, ADV.)
AND
DAWAL SAB S/O JANI SAB SATHSANADI
SINCE DECEASED BY LRS
R1(a) SRI JANI SAB S/O DAWAL SAB, SATHSANADI,
MAJOR, R/O. VIDYANAGAR,
REP. BY GPA HOLDER
SRI M.SATISHCHANDRA SETTY,
S/O. LOKAIAH SHETTY,
AGED ABOUT 50 YEARS,
R/O. HOSSUR, VIDYANAGAR, HUBLI.
R1(b) SMT. ASHABAI W/O. DAWALSAB SHETSANADI,
AGE: 45 YEARS, OCC. HOSEHOLD WORK,
R/O. ASAR MOHALLA, OLD HUBLI.
R1(c) WAZIRBI W/O. MOHAMMEDRAFIQ WADDI,
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AGE ABOUT 27 YEARS, OCC. HOUSEHOLD WORK,
R/O. BHAIRIDEVARKOPPA, HUBLI TALUK,
R1(d) SHAKILABANU D/O. DAWALSAB SHETSANADI,
AGE ABOUT 25 YEARS, OCC. HOUSEHOLD WORK,
R/O. ASAR MOHALLA, OLD HUBLI, HUBLI.
R1(e) MOHAMMED JAFFER S/O. DAWALSAB SHETSANADI,
AGE ABOUT 21 YEARS, OCC.
R1(f) RIYAZAHAMMED S/O. DAWALSAB SHETSANADI,
AGE: 20 YEARS,
R1(g) MOHAMMED RAFIQ S/O. DAWALSAB SHETSANADI,
AGED 18 YEARS,
R1(h) MISS SHABANABANU
D/O. DAWALSAB SHETSANADI,
AGE ABOUT 17 YEARS,
MINOR REP. BY RESPONDENT NO.1(B)
R1(i) MUSTAQ AHAMMED S/O. DAWALSAB SHETSANADI
AGE: ABOUT 14 YEARS,
MINOR REP. BY RESPONDENT NO.1(B)
R1(j) MISS HEENA KAUSAR
D/O. DAWALSAB SHETASANADI,
AGED ABOUT 12 YEARS,
MINOR REP. BY RESPONDENT 1(b)
R1(k) MISS RESHMA D/O. DAWALSAB SHETSANADI,
AGED ABOUT 10 YEARS,
MINOR REP. BY RESPONDENT 1(b)
ALL ARE R/AT VIDYANAGAR,
HUBLI (OLD)
R2A MOHAMMEDSAB S/O. JAFFERSAB SHETSANADI,
AGE: 45 YEARS, OCC. AUTO DRIVER,
R/O. KURBANSHAWALI NAGAR,
OLD HUBLI, HUBLI.
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R2B SMT. CHANDBI JAFFERSAB SHETSANADI,
AGE: 85 YEARS, OCC. HOUSEHOLD,
R/O. KURBANSHAWALI NAGAR,
OLD HUBLI, HUBLI.
R2C.SMT. HAZARATBI W/O. HASSANSAB AGADI,
AGE: 70 YEARS, OCC. HOUSEHOLD,
R/O. MUNDAGOD,
R2D.MUMTAZ BEGUM MAHABOOBSAB DODDAMANI,
AGE: 65 YEARS, OCC. HOUSEHOLD,
R/O. MUNDAGOD
R2E. MEHABOOBI NAZARISAB BELLARY,
AGE: 60 YEARS, OCC. HOUSEHOLD,
R/O. OLD HUBLI, HUBLI
R2F. MEHARUNNISA MSMANSAB SUDARJI
AGE: 65 YEARS, OCC. HOUSEHOLD,
R/O. OLD HUBLI, HUBLI.
R2G.KANABI AZGHARALI KHALASI
AGE: 50 YEARS, OCC. HOUSEHOLD
R/O. OLD HUBLI, HUBLI.
R2H.ALAMHUSEN S/O. JAFFERSAB SHETSANADI,
AGED: 38 YEARS, OCC. GARAGE WORK,
R/O. KURBANSHAWALI NAGAR,
OLD HUBLI, HUBLI.
R2I. SHOUKATALI S/O. JAFFERSAB SHETSANADI,
AGED: 35 YEARS, OCC. GARAGE WORK,
R/O. KURBANSHAWALI NAGAR,
OLD HUBLI, HUBLI.
REP. BY GPA HOLDER
MOHAMMADSAB JAFFERSAB SHETASANADI,
I.E., RESPONDENT NO.2A.
... RESPONDENTS
[BY SRI. DINESH M KULKARNI, ADV. FOR R1(A)
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SRI. SHRIKANT T. PATIL, ADV. FOR R1(A TO K-ABSENT)
SRI D.M. MANJUNATH AND SRI. SAJJANAAR V.D. ADVS.
FOR R2(A TO I-ABSENT)]
******
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE
AGAINST THE JUDGMENT & DECREE DATED 29.01.2005
PASSED IN R.A. NO.36 OF 2004 (OLD NO.RA.184 OF
1998) ON THE FILE OF THE I ADDL. DISTRICT JUDGE,
DHARWAD, SITTING AT HUBLI, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 04.12.1998 PASSED IN O.S. NO.180 OF 1987 ON
THE FILE OF THE IV ADDL.CIVIL JUDGE (JR.DN.), HUBLI.
THIS REGULAR SECOND APPEAL COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The case of the plaintiff is that the suit schedule property is an open site. The plaintiff is the owner and in possession of the suit property, since the date of his purchase in the year 1970. The 2nd defendant was the holder and kabjedar of shetsanadi land of Mariyan Timmasagar of Hubli. The plots were laid down by the defendant No.2, after representing that he has served in the Municipal Borough, Hubli. 2nd defendant has transferred his lease hold rights over the suit property by way of a registered deed dated 07.12.1967, in favour of :5: one Ayeppa Bhemappa Ramannavar of Hubli, who inturn has transferred his right of the suit property in favour of the plaintiff, by virtue of a registered sale deed. Possession was given to the plaintiff on the same day. The 2nd defendant also sold his proprietary right in the said plot by way of a registered sale deed on 21.07.1970. Hence, the plaintiff became the full owner of the suit property. After purchase, the property has been subdivided and taxes have been paid. His name is entered in the property registers. He has also stocked materials for construction, stones etc. He sought for conversion of the suit land which was granted. Subsequently, the CTS Officer ordered for deletion of his name and directed the name of the 1st defendant be entered. Aggrieved by the same, the plaintiff filed an appeal before the Joint Director of the Land Records, who directed that the name of the plaintiff be entered. Even then his name was not entered. 1st defendant has no right, title or interest over the suit property. The plea of the defendant No.1 that he received the property in a compromise of a suit, cannot be accepted. 2nd defendant has no right to enter into a :6: compromise. It was also specifically pleaded that, the plaintiff has become the owner by virtue of adverse possession. Hence, the instant suit was filed seeking for a declaration that he is the owner and in possession of the suit property and for a permanent injunction to restrain the defendant from disturbing his lawful possession.
2. On service of suit summons, the 1st defendant entered appearance and filed his written statement. The plaint averments were denied. The description of the suit property was contested. That the plaintiff is not in possession of the suit schedule property. 2nd defendant has no right to transfer his interest over the suit property in favour of the plaintiff. That the plaintiff had no legal right to purchase the property. That the alleged transfer by the 2nd defendant in favour of Ayeppa Bhemappa Ramannavar contravenes the provisions of the Watan Act and Village Officers Abolition Act. Therefore, the plaintiff has no right to claim the property.
3. The second defendant has filed his written statement and supported the case of the plaintiff. It was :7: contended that Sy. Nos.53, 50 and 46 have been allotted by the Government. His father was the absolute owner in possession of the same. After the death of his father, he was doing village service and was in possession of other properties also. Hence, he is the absolute owner of the suit schedule property. Neither the 1st defendant nor his father have any right over the suit schedule property namely Sy. No.53. By obtaining permission from the Government, he has subdivided the suit property and some portions have been sold for valuable consideration. He has sold the permanent lease hold rights in favour of one Ayeppa Bhemappa Ramannavar in 1967, who in turn has transferred the permanent lease hold rights in favour of the plaintiff. The plaintiff has become the full owner and in possession of the same since 1970 without any disturbance and therefore, his possession has been exclusive and he has become the owner of the property. Whatever decree is passed between him and the first defendant is not at all applicable. That he is not the owner nor in possession of the suit property. That he has no objection to decree the suit.
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4. Based on the pleadings, the Trial Court framed the following issues:
"1. Whether the plaintiff proves that one Ayappa Bheemappa Ramannavar transferred his permanent leasehold rights in his favour in respect of Plot No.11 by a registered deed of transfer dated 21.07.1970 for Rs.4,750/-?
2. Whether the plaintiff proves that said Ayappa delivered the possession of aforesaid plot in his favour on that day itself?
3. Whether the plaintiff proves that said defendant No.2 sold his proprietary rights in respect of the plot No.11 in his favour on 21.07.1970?
4. Whether the plaintiff proves that he is in actual possession and enjoyment of the suit plot and he has stocked materials for constructing the compound wall?
5. Whether the plaintiff proves that he has perfected his title to the suit properties by adverse possession?:9:
6. Whether the plaintiff proves that the cause of action and obstruction as alleged in para 8 and 9 of the plaint?
7. Whether the plaintiff is entitled to the relief of declaration and permanent injunction as sought?
8. Whether the court fee paid on the plaint is insufficient?
9. What decree or order?"
5. Plaintiff was examined as P.W.1, among another witness and marked 21 documents. 1st defendant was examined as D.W.1 and marked 2 documents. All the issues were held in the affirmative. The suit of the plaintiff was decreed as prayed for. The plaintiff was declared as the owner of the suit property and in possession of the same. 1st defendant was permanently restrained from disturbing the peaceful possession of the plaintiff from the suit schedule property. Aggrieved by the same, the 1st defendant preferred an appeal. The appeal was allowed. The judgment and decree of the Trial Court was set aside. : 10 : The suit of the plaintiff was dismissed. Hence, the present second appeal by the plaintiff.
6. By the order dated 26.07.2005 the appeal was admitted to consider the following substantial question of law:
"Whether the finding of the first appellate court reversing the judgment and decree passed by the trial court on the basis of the findings in Special Suit No.29 of 1963 and Execution Petition No.234 of 1968, is contrary to law and the material on record?"
7. Learned counsels submit that the substantial question of law requires to be re-framed. They have addressed arguments with regard to the same. On considering the contentions, I'am of the considered view that the following substantial question of law arises for consideration in this appeal:
"Whether the judgment and decree of the Trial Court is perverse, in misreading the pleadings and thereby decreeing the suit of the plaintiff, when the plaintiff's suit is based on title as well as on adverse possession?": 11 :
8. Learned counsel for the appellant contends that the judgment and decree of the First Appellate Court is perverse. That the First Appellate Court committed an error in misreading the evidence and material on record. That the findings recorded by the Trial Court are based on the evidence and material on record. The First Appellate Court has wrongly reversed the findings without according appropriate reasons. Hence, it is pleaded that the appeal be allowed.
9. On the other hand, learned counsel for the respondents disputes the same. He contends that the Trial Court should not have entertained the suit at all. That the plea of the plaintiff seeking for a declaration of title based on title as well as on adverse possession cannot be considered. They are mutually destructive pleas.
10. Heard learned counsels and examined the records.
11. The case of the plaintiff is firstly based on title. In support of his case, he has relied on various documents commencing from Exs.P-1 and P-2, the certified copy of : 12 : the registered sale deed, Ex.P-3, the property extract, Ex.P-6, the tax paid receipt. Ex.P-7, the Mutation Entry etc. Secondly, his plea is also based on adverse possession. Para 6 of his plaint reads as follows:
"6. Plaintiff therefore submits he has become the full owner and has been in possession as owner since 1970 openly, without any disturbance and his possession has been exclusive and alternatively besides the records he has become owner by adverse possession."
12. The trial Court framed an issue on adverse possession as issue No.5. The trial court recorded a finding in the affirmative in favour of the plaintiff on title as well as on adverse possession. I fail to understand as to how the Trial Court decreed the suit based on title on the one hand and secondly based on adverse possession also. It is needless to state that the plea of adverse possession cannot be raised by a plaintiff. It cannot be used as a sword but only as a shield. Therefore, necessarily it is the defendant alone who could raise a plea of adverse possession and not the plaintiff. Notwithstanding the same, : 13 : when the specific case of the plaintiff is based on title, the same runs contrary to his plea based on adverse possession. The plea of adverse possession necessarily indicates that the title of the defendant is undisputed. That the plaintiff is in possession of the suit schedule property hostile to the interest of the defendant and within his knowledge. Therefore, adverse possession runs contrary to the plea of the plaintiff based on title. Both these pleas cannot be urged by the plaintiff. Therefore, no decree could be granted to the plaintiff whose suit is based on title as well as on adverse possession. Therefore, the decreetal of the suit based on the plea of the plaintiff himself, is erroneous and opposed to the basic fundamental principles of civil law.
13.(a) Learned counsel for the appellant relies on the judgment reported in AIR 1996 KARNATAKA 55 in the case of The Karnataka Wakf Board v. State of Karnataka and others. He places reliance on para 22 of the judgment which reads as follows:
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"22. The plaintiff has taken up an alternative plea that it has perfected its title to the suit property by adverse possession also. In the appeal memo, in para 10 at page No.7, it is contended that the said plea is inconsistent with the plea of title under Issue No.1. It is not possible to accept this contention. It is well-settled that the plaintiff can take an alternative plea. The plea regarding title and the plea of adverse possession pleaded by the plaintiff in this case, cannot be said to be inconsistent with one another. ......"
He, therefore, contends that the plaintiff is entitled to take pleas that are inconsistent with one another.
(b). I have considered the judgment at length. In the said case, the plaintiff sought for a declaration that the notification issued by the defendant is illegal and void and for an alternate prayer that he has perfected his title by adverse possession. There was no claim by the plaintiff therein based on a title. The plea of the plaintiff, was that the impugned notification is illegal and void and therefore requires to be set aside by declaring the plaintiff to be the owner. The alternate plea of adverse possession was raised by him. It is under those circumstances that the : 15 : Hon'ble Division Bench of this Court, held that the plaintiff can take an alternate plea which is not barred under law. The first plea was to set aside the impugned notification and the second prayer was for a declaration that it has perfected its title by adverse possession. The same may probably be considered as an alternate plea.
(c). However, in the instant case, the suit of the plaintiff is firstly based on a registered deed of transfer dated 21.07.1970 which was framed as issue No.1. The plea of adverse possession was framed as issue No.5. Therefore, when the plea is based on a document of title, it cannot be said that the plea of adverse possession amounts to an alternate plea. The plea based on adverse possession is a destructive plea in relation to a plea based on title. In the aforesaid judgment relied on by the appellant, the claim of the plaintiff was not based on any title. It was based on a declaration that the notification was illegal and therefore, the plea of adverse possession was held to be an alternate plea. Hence, I'am of the view that the said judgment is not applicable to the appellant herein.
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14(a). Reliance is also placed on the judgment of the Hon'ble Supreme Court reported in A.I.R. (38) 1951 Supreme Court 177 in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others with reference to para 9. The relevant portion is extracted herein as follows:
"9. ...A pltf. may rely upon different rights alternatively and there is nothing in the Civil P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative."
(b). The Hon'ble Supreme Court accepted the contentions therein on the ground that the pleas of the plaintiff therein were either inconsistent or were alternate. The plea of the plaintiff in the case on hand cannot be said to be either an inconsistent plea or an alternate plea. Inconsistent pleas are pleas that differ with one another. They are pleas that are inconsistent with one another. An alternate plea is a plea which is in addition to the plea that has already been made. In the instant case, the plea of the plaintiff is based on title and the second plea is based : 17 : on adverse possession. Therefore, both these pleas cannot be said to be inconsistent or an alternate. The plea based on title would pre-suppose that the plaintiff asserts his title to the property and claims ownership by virtue of his rightful claim as a lawful owner based on a document of title. By claiming adverse possession, the title of the defendant is admitted but what is pleaded is a hostile, continuos possession to the knowledge of the defendant. Therefore, such a plea would necessarily be destructive to the plea based on title. The Hon'ble Supreme Court held that an inconsistent or an alternative plea is permissible. The judgment does not speak of a mutually destructive pleas. Even though the plaintiff may be entitled to take an inconsistent or an alternate plea, he cannot be permitted to take mutually destructive pleas. In my considered view, the pleas are mutually destructive. Hence, I'am of the considered view that the said judgment cannot be applied to the facts and circumstances of this case.
15(a). Learned counsel further relies on a judgment of the High Court of Madras reported in AIR 2005 Mad 431 : 18 : in the case of Pappayammal v. Palaniswamy, Sellammal(died) and Rukmani with reference to para 24 on wards and contends that the claim of an alternate plea is permissible in law. He contends that the Hon'ble High Court of Madras having relied on various judgments of the Madras High Court and the Karnataka High Court, came to such a view. Therefore, the plaintiff is entitled to take an alternate plea. Reliance is also placed on the judgment of the learned Single Judge of this Court in the case of A. Krishnappa v. Thimmarayappa and others reported in AIR 2001 Karnataka 470 with reference to para 3 to 6. Reference is also made to the judgment reported in AIR 1971 Rajasthan 237 in the case of Vyas Gopichand v. Mattoo Lal and others with reference to paras 6, 7 and 10. Based on these judgments, it is contended that there is no bar in law for any party to take an inconsistent or an alternate plea. Therefore, it is pleaded that following the said judgments, the court was entitled to consider the case of the plaintiff on either one of the pleas. That only because the plaintiff has failed to prove his case on one plea, does not entail dismissal of the suit. Even though : 19 : one plea has not been proved by the plaintiff, the court would have to consider the facts and circumstances, so far as the other pleas are concerned. Therefore, dismissal of the suit on that ground may not be appropriate.
(b). So far as the aforesaid judgments are concerned, I'am of the considered view that the same would not be applicable to the facts and circumstances involved herein. The law that has been enunciated, is that a party can take an inconsistent and an alternate plea. As referred to herein above, there is no bar in law that an inconsistent plea cannot be taken. It is for the Court to determine whether they are inconsistent or alternate pleas. As discussed herein above, an alternate plea would amount to a plea in addition to what has been taken. Therefore, so far as the aforesaid judgments are concerned, there is no dispute on the enunciation of law therein. But the facts involved in the present case is different. The plea of the plaintiff is based on title as well as on adverse possession. It cannot be said that the plea of adverse possession is either inconsistent or that it is alternate. Both the pleas of the plaintiff are mutually : 20 : destructive. There is no plea of declaration of title or an adverse possession against defendant No.1. The only plea against defendant No.1, is that of an injunction. The plea against defendant No.2 is based on title as well as on adverse possession. Therefore, both the pleas being mutually destructive, no relief could be granted to the plaintiff.
16(a). It is further contended that the provisions of Order VII Rule 11 of the Code of Civil Procedure cannot come in the way of the Court in deciding the suit on merit. That a plaint cannot be rejected on this ground alone. By relying on the provisions of Order VII Rule 11 CPC, it is contended, that only if the parameters of Rule 11 are fulfilled, that the plaint could be rejected.
(b). I'am of the considered view that reference to Order VII Rule 11 of CPC is totally alien to the facts of this case. It is not a case where the defendant prays for a rejection based on the parameters as enunciated under Rule 11. It is certainly not a case of rejection of the plaint. The suit is very much maintainable. It cannot be rejected : 21 : under Order VII Rule 11. But the question is whether any relief could be granted to the plaintiff on the basis of the mutually destructive pleas set up by him. That has to be gone into merits by the trial Court and thereafter it is for the trial Court to hold whether any relief at all could be granted to the plaintiff. In the instant case, in view of the mutually destructive pleas being raised by the plaintiff, it is a case where no relief could be granted to the plaintiff and it is not a case of rejection of the plaint.
17.(a) The Hon'ble Supreme Court in the judgment reported in (2006) 12 SCC 233(Steel Authority of India Ltd. v. Union of India and others) held that a mutually destructive plea is impermissible in law. At para 28 it has enunciated thus:
" 28. The workmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a : 22 : contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication."
(b). In L.N. Aswathama and another v. P. Prakash reported in (2009) 13 Supreme Court Cases 229, the Hon'ble Supreme Court while dealing with an inconsistent or an alternate plea held at para 17 and 18 as follows:
" 17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to : 23 : operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the peirod for prescription will not commence. (Vide P. Periasami v. P. Periathambi, Md. Mohammad Ali V. Jagadish Kalita and P.T. Munichikkanna Reddy v. Revamma.)
18. We are however of the view that the decision in Mohan Lal relied on by the plaintiffs in inapplicable, as the defendant therein had pleaded that he was in possession, having obtained possession in part-performance of a sale agreement. As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in such possession, there was no adverse possession. This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make : 24 : out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of the defendant provided he is able to establish adverse possession for more than 12 years When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected."
In the aforesaid judgment, a plea of title was not claimed. His plea was that he was in possession as a tenant under Gowramma from 1962 and became the owner by purchasing it from her. This alternate plea was based on possession. Therefore, the Hon'ble Supreme Court held that since the plea based on title was raised against a different party and the plea of adverse possession was raised against another party, the same would amount to an alternate plea which is available on the same set of facts. In the facts of the present case, it : 25 : is a plea based on title as well as on adverse possession as against the very same defendant no.2. Therefore, such a plea cannot be considered either as an inconsistent plea or as an alternate plea.
(c). In Sarva Shramik Sangh v. Indian Oil Corporation Limited reported in ((2009) 11 Supreme Court Cases 609), the Hon'ble Supreme Court held at para 19 as follows:
19. The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not sound. What is impermissible is taking of an inconsistent plea by way of an amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a petitioner-plaintiff. But when there is no inconsistency in the facts alleged, party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed.": 26 :
Therefore, the Hon'ble Supreme Court was clear, that even though there is no bar on any inconsistent plea being taken by a party, a mutually repugnant and contradictory pleas which are destructive of each other, cannot be permitted to be urged simultaneously. In the instant case, the plea based on title and the plea based on adverse possession are mutually repugnant and destructive to each other.
(d). This Court in the judgment reported in 1991(3) Kar.L.J. 258 in the case of Venkatachalaiah and Another v. Nanjundaiah(dead) and another, while following the judgments of the Hon'ble Supreme Court reported in AIR 1966 SC 605(Ambika Prasad Thakur and Others v Ram Ekbal Rai(dead) by his L.Rs. and others) and in AIR 1968 SC 1165(Nair Service Society Limited v. K.C. Alexander and Others) came to the very same conclusion that a mutually destructive plea cannot be accepted.
18(a). It is further contended that the plea of the plaintiff so far as injunction against defendant No.1, requires to be considered. That substantial material has : 27 : been placed by the plaintiff in order to show that he was put in possession of the suit schedule property as far back in the year 1967 by virtue of a transfer deed which was retransferred by virtue of the sale deed in the year 1970. Therefore, he pleads that he is entitled for a relief of injunction.
(b). On the other hand, Sri Dinesh M. Kulkarni, learned counsel appearing for respondent No.1(a) disputes the same. He contends that the trial Court has wrongly granted an order of injunction in favour of the plaintiff. On considering the material on record, the first appellate Court has rightly re-appreciated the same and set aside the finding on injunction. While doing so, the trial Court referred to Ex.D-3 marked by DW-1 in order to show that the bailiff has put defendant No.1 in possession of the suit schedule property pursuant to the decree obtained in Special Suit 29 of 1963 in the Court of Civil Judge, Hubli.
(c). The contention of the plaintiff is that even assuming that by virtue of Ex.D-3 that defendant No.1 was put in possession of the property, the property in question : 28 : measures only 29 guntas. That the subject matter of the suit is 5 guntas. Therefore, 5 guntas of the plaintiff's property is a property that is out side 29 guntas in terms of Ex.D-3. However, this has remained only as a contention of the appellant. There is absolutely no material either in the evidence or in the pleadings to support such a contention. There is not even a question asked to the defendant with regard to the validity or otherwise of Ex.D-3. If such was the case of the plaintiff, the same should have been elicited in the cross- examination of the defendant. He has not done so. Therefore, before the second appellate court, it cannot be contended contrary to the evidence led in. There has to be a pleading which could be substantiated or elaborated through evidence. No new case can be sought to be made out before the second appellate Court. Therefore, in the absence of any challenge to Ex.D-3, the first appellate Court was justified in reversing the finding, so far as injunction is concerned.
19. Under these circumstances, the substantial question of law is answered by holding that the judgment : 29 : and decree of the Trial Court is perverse in misreading the pleadings and thereby decreeing the suit of the plaintiff based on title as well as on adverse possession. On answering the substantial question of law, the appeal is dismissed. The judgment and decree dated 29.01.2005 passed in R.A. No.36 of 2004 by the Ist Additional District Judge, Dharwad is affirmed. The suit of the appellant- plaintiff in O.S.No.180 of 1987, before the IVth Additional Civil Judge (Jr.Dn.), Hubli, is dismissed.
No costs.
Sd/-
JUDGE Rsh/kmv