Himachal Pradesh High Court
Jeet Ram And Others vs Kanshi Ram(Since Deceased) Through His ... on 13 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No. 447 of 2000 a/w RSA No. 442 of 2001 Reserved on: 06.08.2019 Date of decision: 13.08.2019
1. RSA No. 447 of 2000 Jeet Ram and others ....Appellants/Plaintiffs.
r Versus Kanshi Ram(since deceased) through his LRs Dharam Pal and others ....Respondents/Defendants For the appellants: Mr. Neeraj Gupta, Senior Advocate, with Ms. Rinki Kashmiri, Advocate.
For the respondents : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, for respondents No.1(a) to 1(d), 2 to 5.
2. RSA No. 442 of 2001 Kanshi Ram(since deceased) through his LRs Dharam Pal and others ...Appellants/Defendants Versus Jeet Ram and others ... Respondents/Plaintiffs.
For the appellants : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate.
For the respondents: Mr. Neeraj Gupta, Senior Advocate, with Ms. Rinki Kashmiri, Advocate, for respondents No.1 to 9(a) to 9(d), and 11 to 15.
Ms. Megha Kapur Gautam, Advocate,for respondents No.16 and 17.
::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 2Coram .
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes Tarlok Singh Chauhan, Judge Aggrieved by the judgment and decree passed by the learned first Appellate Court whereby he partly reversed the judgment and decree passed by the learned trial Court, both the parties have filed these appeals.
The parties shall be referred to as the 'plaintiffs' and the 'defendants'.
2. Brief facts giving rise to the present case are that the plaintiffs filed a suit for possession of the suit land measuring 1 bigha 11 biswas, comprised in Khewat/Khatauni No. 88/96, 97, bearing Khasra Nos. 220 min (0-6), 221 (0-15), 220 (0-10), situated in village Kaulanwala, Pargana Plassi, Tehsil Nalagarh, District Solan, H.P. (hereinafter referred to as the 'suit land') on the ground that they are owners of the land and defendants No.1 to 3 were in possession thereof with the consent of the plaintiffs and since the permission stands withdrawn by the plaintiffs, through registered notice dated 11.8.1985, as such, the possession of defendants No.1 to 3 is unlawful from the date of 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 3 withdrawal of the consent. It was further claimed that the suit land was redeemed from Sh. Krishan Lal in the month of June, 1979 .
and, therefore, a decree for possession be passed in favour of the plaintiffs.
3. The defendants contested the claim of the plaintiffs wherein they claimed that the plaintiffs had earlier filed a Civil Suit No.91/1 of 1979 which was decided on 4.11.1981. In that suit, the plaintiffs claimed a decree for injunction on the ground that the plaintiffs themselves were in possession of the suit land.
However, the suit was dismissed and, therefore, the maintainability of the subsequent suit was objected to by invoking the provision of Order 2 Rule 2 of CPC. The defendants claimed that the land measuring 16 biswas out of the suit land is covered by the house constructed by the predecessor-in-interest of the defendants and the same is in their occupation for the last more than 55 years continuously. The defendants further claimed that the suit land along with other land was mortgaged with their predecessor-in-interest i.e. Santu and Pyare Lal. It was claimed that thereafter it was mortgaged with Hans Raj, Santu, father of defendants No.1 to 3. Pyare Lal was residing with his family members in the aforesaid house and as far as the suit land is concerned, the same was in possession of the defendants as ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 4 tenants of the mortgagee of Ram Krishan and Hans Raj. The tenancy was created for the better management of the property in .
question. In the alternative, the plea of adverse possession was also raised. The defendants raised the plea of partly owners of the suit land and partly tenants over the suit land. It was pleaded that a compromise dated 13.7.1979 was effected in the Khangi Panchayat regarding the suit land in which the defendants agreed to give up possession of the other land in favour of Ramji and Jeet Ram, son of Ramji and at that time, Ramji and Jeet Ram were entitled to receive a sum of Rs.500/- in lieu of the land measuring 14 biswas. The compromise Ex. DA was placed in Civil Suit No. 91/1 of 1979, decided on 4.11.1981. It was claimed that the plaintiffs are bound by this compromise and cannot, therefore, seek possession of the land. The defendants further claimed that in part performance of the contract, they are in possession of the suit land and no possession can be claimed from them.
4. The learned trial Court held the plaintiffs to be the owners of the suit land and, therefore, were held entitled to a decree of possession.
5. On an appeal having been preferred by the defendants, the learned Appellate Court framed the additional issue 4-D as under:
::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 5"4-D. Whether the defendants are in occupation of 16 biswas of land in suit as tenants? OPD"
.
6. The matter was remanded back to the learned trial Court for returning the findings on the newly framed additional issue. The learned trial Court answered the issue in favour of the defendants and thereafter sent its findings to the learned first Appellate Court.
7. The judgment and decree passed by the learned trial Court was partly upheld. The defendants were held entitled to protection of Section 53-A of the Transfer of Property Act qua Khasra No. 220 min measuring 10 biswas situated in Mauza Kaulanwala on the ground that their possession had been recorded in the record of rights and gair mumkin abadi of the defendants had been recorded on payment of consideration amount proportionately as mentioned in the document Ex. DA at the rate of 12% p. a. from 13.7.1979. The consideration amount was ordered to be deposited within 60 days, failing which, the suit of the plaintiffs would be deemed to be allowed. At the same time, the decree for possession qua khasra No. 220 measuring 0-6 biswas and Khasra No. 221 measuring 15 biswas, was affirmed.
The learned trial Court findings on newly framed issue were ordered to be set-aside and it was specifically held that no ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 6 tenancy rights accrued to the appellants/defendants over the suit land as tenancy was created by mortgagee without the consent of .
mortgagor and the tenancy rights automatically extinguished on the redemption of the suit land.
8. Feeling aggrieved by the judgment and decree passed by the learned first Appellate Court, the plaintiffs have preferred RSA No. 447 of 2000, whereas the defendants have preferred RSA No. 442 of 2001.
9. RSA No. 447 of 2000 was admitted by this Court on 31.10.2001 on the following substantial questions of law:
"1. Whether in absence of proper pleadings and proof of the basic requirements of the provisions of Section 53- A of Transfer of Property Act, the findings of the lower appellate Court are illegal, wrong and perverse in holding that the possession of the defendants was protected by invoking the doctrine of part performance?
2. Whether the lower appellate court has wrongly put reliance on Ex. DA, which was inadmissible in evidence on account of being unstamped and unregistered?
3. Whether lower appellate court has wrongly taken Ex. DA to be a subsisting contract between the parties when the same was neither acted upon nor pressed into service in the previous suit, in which the same was filed. When the said suit was neither decided in accordance with the terms of such alleged compromise nor any findings were given while deciding such suit, has not the lower appellate court ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 7 exceeded its jurisdiction in accepting such document so as to defeat the title of the plaintiffs?"
.
10. On the other hand, RSA No. 442 of 2001 also came to be admitted by this Court on 31.10.2001 on the following substantial questions of law:
"1. Whether the principle of res judicata and the bar as contained under Order 2 Rule 2 CPC, present suit is neither maintainable, nor courts below had jurisdiction in the matter keeping in view the decision in earlier Civil Suit No.91/1 of 79, titled as Ramji vs. Kanshi Ram and others?
2. Whether since appellants have been held to be tenants over the land in question could not be ordered to be dispossessed without ascertaining as to who has inducted them as tenants?
3. Whether findings to the extent, those are against appellants are vitiated on account of mis-reading and mis-appreciation of the pleadings as well as evidence on record?
4. Whether claim of the respondents is barred by limitations and the plea of adverse possession raised by appellants stands pleaded and proved?"RSA No. 447 of 2000
Substantial questions of law No.1 to 3:
11. A perusal of the written statement filed on behalf of defendants No.1 to 3 would go to show that there is no plea ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 8 whatsoever raised regarding the part performance so as to attract the applicability of Section 53-A of the Transfer of Property Act.
.
12. Section 53-A of the Transfer of Property Act, at the relevant time was as follows:
"53A. Part performance. - Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty: and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 9
13. A learned Single Judge of this Court in Sita Ram vs. Smt. Kanta Devi and others, 1981 Shim. L. C. 239, has held .
as follows:
"A person seeking protection of doctrine of part performance as enunciated in Section 53-A of the Transfer of Property Act has thus to plead and prove inter alia that he has in part performance of the contract taken possession of the property or any part thereof and in case he was already in possession, he continues to be in such possession in part performance of the contract and has done some act in furtherance of the contract. In addition he has also to allege and prove that he has performed or is willing to perform his part of the contract..."
14. Issue No.4(b) by the learned trial Court was answered against the defendants by holding that the defendants contention was not within the ambit of Section 53-A of the Transfer of Property Act, which provides that if there has to be a contract for transfer for consideration of any immovable property as the defendants have not proved to the satisfaction of the Court by virtue of the continuation of their possession over the suit land which was being asserted by them much prior to the execution of Ex. DA, some act in furtherance of Ex. DA had been performed by them. However, the learned first Appellate Court held the ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 10 defendants to be entitled to protection of Section 53-A by according the following reasons:
.
"29. I am of the view that the appellants are entitled to protection of Section 53-A of the T.P. Act as per agreement Ex. DA placed on record possession of 16 biswas of land was given to the appellants in consideration of Rs.500/-
and when the possession of the appellants have been recorded in the revenue record qua 10 biswas of land comprised in Khasra No. 220 min as Gair Mumkin Abadi."
15. In Nathulal vs. Phoolchand AIR 1970 SC 546, the Hon'ble Supreme Court has laid down the following conditions that are necessary for making out the defence of part performance:
(i) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(ii) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(iii) that the transferee has done some act in furtherance of the contract; and
(iv) that the transferee has performed or is willing to perform his part of the contract."::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 11
16. As observed above, there is nothing on record to suggest that even though the defendants are in possession of the .
suit land and had done some act in furtherance of the contract or that the defendants had performed or were willing to perform their part of the contract.
17. In Sardar Govindrao Mahadik and another vs. Devi Sahai and others AIR 1982 SC 989, in paragraph-41 of the report, it has been held as follows:-
" Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance..... There is no such statement in the written statement but even in his evidence at the trial he has not been able to show that he has paid any creditor or made any attempt to pay any of the creditors ..... All this would conclusively show that the mortgagor himself was not willing to perform his part of the contract........"
18. In Sohan Singh and other vs. Gulzari AIR 1997 HP 12, again it has been held as under:-
"One of the salient condition to be fulfilled by the transferee for invoking the principle of part performance is that he has performed or is willing to perform his part of the contract. Section 53-A, Transfer of the Property Act requires that the person claiming the benefit of part performance must always be shown to be ready and willing ::: Downloaded on - 29/09/2019 02:02:41 :::HCHP 12 to perform his part of the contract and if it is shown that he was not ready and willing to perform his part of contract, he will not qualify for the principle of doctrine of part .
performance. ( See Kuldip Singh Sawhney v. Mrs. Parkash Chand, AIR 1985 Punj. & Har. 222 and Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989). "
19. In SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER Vs. PRALHAD BHAIROBA SURYAVANSHI (DEAD) Court has held as follows:
r to BY LRS. AND OTHERS 2002 (3) SCC 676, the Hon'ble Supreme "But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act. The necessary conditions are :-
(1) there must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract."::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 13
20. Moreover, no reliance could have been placed on Ex. DA as the same was inadmissible in evidence as it was neither .
stamped nor registered.
21. In view of the aforesaid discussion, all the substantial questions of law are answered in favour of the plaintiffs.
RSA No. 442 of 2001:
Substantial question of law No.1:
22. Order 2 Rule 2 of the Code of Civil Procedure, reads as under:
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs;
but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation- For the purposes of this rule an obligation and a collateral security for its performance and ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 14 successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
.
23. A perusal of the pleadings in the earlier suit and in the instant suit and the cause of action mentioned therein would show that the cause of action and reliefs sought for are quite distinct and not the same. Indisputably, cause of action consists of a bundle of facts which would be necessary for the plaintiff to prove in order to get a relief from the Court. However, because the causes of action for the two suits are different and distinct and the evidences to support the relief in the two suits are also different then the provisions of Order 2, Rule 2, C.P.C. will not apply. The provision came up for consideration before the Privy Council in the case of Mohammad Khalil Khan and others vs. Mahbub Ali Mian and others AIR 1949 Privy Council 78, and it was held as under:
"61. The principles laid down in the cases thus far discussed may be thus summarised :
(1) The correct test in cases falling under Order 2, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit."
(Moonshee Buzloor Ruheem v. Shumsunnissa Begum, (1867-11 M.I.A 551).
::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 15(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v.
.
Brown, 1889-22 Q.B.D.128.) (3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey, 1884-14 Q.B.D.
141.) (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey, 1884-14, Q.B.D.141.) (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers..to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Musst. Chandkour v. Partab Singh, 15 I.A. 156). This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2, Rule 2), where plaintiff made various claims in the same suit. "
24. The Constitution Bench of the Hon'ble Supreme Court considered the scope and applicability of Order 2 Rule 2 of CPC in the case of Gurubux Singh vs. Bhooralal, AIR 1964 SC 1810, and held as under:::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 16
"6. In order that a plea of a bar under O.2. R.2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same .
cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O. 2. R. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits...."
25. In Sidramappa vs. Rajashetty and others 1970 (1) SCC 186, it was laid down by the Hon'ble Supreme Court that if the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which is sought in the subsequent suit, the later namely, subsequent suit will not be barred by Rule contained in Order 2 ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 17 Rule 2 of CPC. It shall be apt to reproduce the observations made in paras 7 and 8 as under:
.
"7. The High Court and the trial court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiff's title to the lands mentioned in Schedule I of the plaint. The requirement of Order 2, rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in in respect of a cause of action. - 'Cause of action' means the 'cause of action for which the suit was brought'. It cannot be Said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause, ,of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings(See. Mohd. Hafiz vs. Mohd. Zakaria, (1922) LR 49 I.A.)"
8. As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit. The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit. In that suit he could not have claimed the relief which he seeks in this suit. Hence, the trial Court and the High Court were not right in holding that the plaintiff's suit is barred by Order 2 Rule 2, Code of Civil Procedure."
::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 1826. In The State of Madhya Pradesh vs. The State of Maharashtra and others (1977) 2 SCC 288, it was observed .
by the Hon'ble Supreme Court as under:
"24. This Court in State of Bihar v. Abdul Majid AIR 1954 SC 245 stated that a Government servant could ask for arrears of salary. Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid's case (supra) declared what the exist- ing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit. It is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Procedure would not be entitled to claim salary in the 1956 suit.
25. The contention of Madhya Pradesh cannot be accepted. The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to. sue for that relief. It will not be correct to say that while the decision of the Judicial Committee in Lall's case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary. On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim. If at the date of the former suit the plain- tiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 19 the subsequent suit. A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of .
his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure. See Amant Bibi v. Imdad Husain 15 IA 106, 112. The crux of the matter is presence or lack of awareness of the right at the time of first suit.
26. This Court in Om Prakash Gupta v. State of Uttar Pradesh AIR 1955 SC 600 considered the prayer for refund of court fees on a claim which was abandoned. The plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal. In view of the decision in Lall's case (supra) the plaint in that case was amended by deleting the claim for arrears of salary and also for damages. The plaintiff thereupon prayed for refund of the court fees which had been paid on arrears of salary for damages. Both the trial Court and the High Court rejected the claim for refund of court fees. This Court also upheld the same view. The reason given by this Court was that at the time the suit was instituted the law as it then stood permitted such a claim to be made. The decision of the Privy Council made it clear that no such claim could be made. The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood.
27. The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions contained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit. The ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 20 plaintiff could not have asked for arrears of salary on the law as it then stood. The plaintiff did not know of or possess any such right. The plaintiff, therefore, cannot be .
said to have omitted to sue for any right."
27. In view of the law propounded above, it can safely be concluded that if the two suits and relief claimed are based upon the same cause of action, then only the subsequent suit would be barred under Order 2 Rule 2 of CPC. However, when the precise cause of action upon which the previous suit which in the instant case was for injunction was filed, then the subsequent suit i.e. the instant suit seek possession on the basis of the title, cannot be held to be based on the same cause of action. In the instant case from the pleadings of both the parties in the suit, particularly, the cause of action as alleged by the plaintiffs in the first suit for permanent injunction and cause of action alleged in the instant suit for possession, it is clear that they are not the same and identical.
28. Besides the above, on reading of the plaint out of the suit for injunction filed by the plaintiffs, there is nothing to show that the plaintiffs intentionally relinquishes any portion of their claim for the reasons that the suit was only for injunction and the plaintiffs, therefore, are well within their right to file the instant ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 21 suit for possession,which cannot be held to be barred under the provisions of Order 2 Rule 2 of CPC.
.
The substantial question of law No.1 is answered against the defendants.
Substantial Question of law No.2:
29. It would be noticed that in the earlier suit i.e. Civil Suit No.91/1 of 1979, titled Ramji vs. Kanshi and others, the defendants had raised the plea that they are tenants over the suit land having been inducted by the mortgagee. However, the Court held that even though the defendants were tenants under mortgagee Kishan Lal and since the suit land now stands redeemed, the same puts an end to the tenancy under mortgagee. This is clearly evident from the following observations:
"...Therefore, on the plaintiff's own showing, though it is proved that the defendants were tenants under mortgagee Kishan Lal, yet the admitted fact that the suit land now stands redeemed, to my mind, puts an end of the tenancy under mortgagee. The reason is that the defendants could not prove by any stretch of imagination that they were inducted as tenants by Kishan Lal in the course of good management or that it was a prudent act on the part of Kishan Lal to have inducted them as tenants. In fact, no such question has been put to Kishan Lal despite the fact that Kishan Lal was put in the witness box on the side of the ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 22 defendants as DW2. So, therefore, to my mind, it has not been established by the defendants that they having entered the land as tenants was a prudent act on the part .
of Kishan Lal and that it was done in the course of good management. So, therefore, the protection u/s 76 (a) cannot be availed of by the defendants."
The substantial question of law is answered against the defendants.
30.
r to Substantial Question of law No.3:
The learned counsel for the defendants has not been able to show as to how the findings recorded against the appellants by the learned Courts below are vitiated on account of mis-reading and mis-appreciation of the pleadings as well as evidence on record. It would be noticed that both the learned Courts below have considered the pleadings and evidence and after discussed them threadbare, have reached to a conclusion that even though the findings of the appellate Court to the extent of it confer protection upon the defendants under Section 53-A of the Transfer of Property Act, are erroneous and have been set-
aside, but the remaining findings being based on correct appreciation of the pleadings and evidence cannot be faulted with and, therefore, are upheld.
::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 23The substantial question of law are answered accordingly.
.
Substantial question of law No.4
31. In my considered opinion, this question does not arise for consideration, the defendants had insisted upon the plea of adverse possession before the learned Courts below and it is for this precise reason that the party has not put to any trial as no specific issue was framed. Moreover, it is settled law that plea of adverse possession is not sustainable when an alternative plea for retention of possession by operation of Section 53-A of Transfer of Property Act is made as first plea by a plea of part performance of the contract on basis of argument. Adverse possession being totally inconsistent with the second plea of retention of possession by operation of Section 53A of Transfer of Property Act. Reason being that both these pleas are totally inconsistent with each other. In coming to such conclusion, this Court is duly supported by the judgment of the Hon'ble Supreme Court in Mohan Lal (deceased) through his LRs Kachru and others vs. Mira Abdul Gaffar and another AIR 1996 SC 910, wherein it was observed as under:
::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 24"3. The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having .
remained in possession from March 8, 1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882 (for short, 'the Act').
4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
The substantial question of law is answered against the defendants.
32. In view of the aforesaid discussion, I find merit in the appeal of the appellants/plaintiffs and consequently RSA No. 447 of 2000 is allowed and the judgment and decree passed by ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP 25 learned first Appellate Court whereby it had partly reversed the judgment and decree passed by the learned trial Court is set-
.
aside and that of the learned trial Court is affirmed. RSA No. 442 of 2001, after modification as aforesaid ordered in RSA No. 447 of 2000, is ordered to be dismissed and consequently, the judgment and decree passed by the learned Trial court is upheld.
Pending application(s) if any also stands disposed of.
(Tarlok Singh Chauhan) th 13 August, 2019. Judge (GR) ::: Downloaded on - 29/09/2019 02:02:42 :::HCHP