Gujarat High Court
Deceased Rajendrasinh Harbhamji ... vs Deceased Mansukhlal Premchand Mehta'S ... on 14 October, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/18684/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18684 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? No ================================================================ DECEASED RAJENDRASINH HARBHAMJI JADEJA'S HEIRS ....Petitioner(s) Versus DECEASED MANSUKHLAL PREMCHAND MEHTA'S HEIRS ....Respondent(s) ================================================================ Appearance:
MR SHALIN N MEHTA, SENIOR ADVOCATE WITH MR P B KHANDHERIA AND MR PRATIK Y JASANI, ADVOCATES for the Petitioners MR RS SANJANWALA, SENIOR ADVOCATE WITH MR NIKUNT K RAVAL, ADVOCATE for Respondents Nos.1 & 2 MR MEHUL S SHAH, ADVOCATE for Respondent No.3 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date: 14/10/2014 C.A.V. JUDGMENT Page 1 of 67 C/SCA/18684/2013 CAV JUDGMENT
1. Rule. Mr.Nikunt K.Raval, learned advocate, waives service of notice of Rule for respondents Nos.1 and 2 and Mr.Mehul S.Shah, learned advocate, waives service of notice of Rule for respondent No.3. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided, finally.
2. The challenge in this petition under Articles 226 and 227 of the Constitution of India, is to the order dated 30.11.2013, passed by the learned 10th Additional District Judge (adhoc), Rajkot ("the Appellate Court", below the applications at Exs.5 and 27, in Civil Misc.
Appeal No.12 of 2011, whereby the appeal of the petitioners against the order dated 17.02.2011, passed by the learned 4th Additional Senior Civil Judge, Rajkot ("the Trial Court") below the applications at Exs.5 and 27, in Regular Civil Suit No.98 of 1999, has been dismissed.
3. Briefly stated, the facts of the case, as Page 2 of 67 C/SCA/18684/2013 CAV JUDGMENT presented in the petition, are that land bearing Survey No.107, T.P.Scheme No.2, Final Plot No.847, admeasuring 11305 square meters, situated in Rajkot City (the subject land), is in the possession of the petitioners for the past twelve years. The petitioners are running a shop in the name of Hardik Telecom and Hardik Estate Broker and Travels on the subject land. According to the petitioners, the Gujarat Electricity Board has granted an electricity connection in the name of the petitioners and a portion of the land is being used by one Dhanabhai Hirabhai Gamara, who is running a Tea Stall in the name of Ashapura Tea Stall, with the consent of the petitioners. It is further the case of the petitioners, that they are renting out the subject land to the persons for organizing various events thereupon. In the past, the petitioners have permitted various organizations to organize Garba events as well as private social functions on the subject land. The land in question originally belonged to the respondents herein, who are residing in Page 3 of 67 C/SCA/18684/2013 CAV JUDGMENT the same vicinity. That the place of work of the respondents is at a distance of two kilometers from the subject land. According to the petitioners, the respondents pass through the subject land on a regular basis and have never objected to the possession of the petitioners since the past twelve years. The petitioners are claiming their right over the subject land by virtue of adverse possession. According to the petitioners, the respondents instituted a suit, being Regular Civil Suit No.373 of 2006, against the father of the petitioners in the year 2006, with respect to the entire subject land. It was the case of the respondents in the said suit that the petitioners had no right, title or interest in the subject land. The respondents unconditionally withdrew the said suit by filing a Purshis. A copy of the order dated 25.09.2007, permitting withdrawal of the suit has been annexed as AnnexureB to the petition.
4. It is the case of the petitioners that after the withdrawal of the aforementioned suit, the respondents did not take any steps for taking Page 4 of 67 C/SCA/18684/2013 CAV JUDGMENT away the possession of the land from the petitioners and, till date, the petitioners are enjoying the peaceful possession thereof. That the respondents made several attempts to disturb the possession of the petitioners in the year 2009, therefore, the petitioners were constrained to file Regular Civil Suit No.98 of 2009 (the suit from which the present proceedings emanate), seeking a declaration that the petitioners are the owners of the subject land by virtue of adverse possession and the respondents have no right to interfere with the possession of the petitioners. The petitioners also prayed for the grant of permanent injunction against the respondents. Along with the suit, the petitioners filed an application at Ex.5 for the grant of an interim injunction. Respondent No.3 filed an application at Ex.27, with a prayer to direct the petitioners not to disturb the possession of the subject land. The application of the petitioners at Ex.5 came to be rejected, whereas the application at Ex.27 came to be allowed in favour of respondent No.3 Page 5 of 67 C/SCA/18684/2013 CAV JUDGMENT and against the petitioners, in respect of the open portion of the subject land. Aggrieved thereby, the petitioners preferred an appeal before the Appellate Court, which was registered as Civil Miscellaneous Appeal No.12 of 2011. The Appellate Court rejected the said appeal filed by passing the impugned order, giving rise to the filing of the present petition.
5. Mr.Shalin N.Mehta, learned Senior Advocate with Mr.P.B.Khandheria and Mr.Pratik Y.Jasani, learned advocates for the petitioners, has made the following submissions:
(a) The petitioners have been injuncted in their own suit by the Trial Court as well as the Appellate Court, by allowing the application at Ex.27 filed by respondent No.3 and by dismissing application at Ex.5, filed by the petitioners.
No counter claim has been filed by the respondents, therefore the question of entertaining the application at Ex.27, which is for a counter injunction, filed by respondent No.3, was out of question. This fact has not at Page 6 of 67 C/SCA/18684/2013 CAV JUDGMENT all been appreciated by either of the Courts below. Both the Trial Court as well as the Appellate Court have committed a grave illegality.
(b) That the respondents had earlier filed a suit against the petitioners, being Civil Suit No.373 of 2006, in respect of the same subject land, with a prayer to evict the petitioners therefrom, as well as for a declaration that the petitioners have no right to use the subject land. The said suit came to be 'unconditionally' withdrawn by the respondents, without reserving liberty to institute a fresh suit against the petitioners on the same claim. That, as the filing of a second suit on the same cause of action against the petitioners is barred by law, respondent No.3 cleverly preferred an application for counterinjunction at Ex.27, in the suit filed by the petitioners, without filing a counter claim. The said application itself is not tenable in law. However, both the Courts below have not considered this legal Page 7 of 67 C/SCA/18684/2013 CAV JUDGMENT aspect. Therefore, both the Courts below have committed a grave error of law.
(c) That as per the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908 ("the Code"), once the claim, or a part of claim, has been relinquished or abandoned, a person cannot agitate such abandoned / relinquished claim, except with the leave of the Court. In the present case, the leave of the Court has not been taken by the respondents before agitating the same prayer that was made in the earlier suit, by way of the application at Ex.27. That both the Courts below have not considered the aforesaid legal aspect, resulting in a miscarriage of justice.
(d) That as per the provisions of Order 23 Rule 1 of the Code, since the respondents had abandoned the claim with respect to the same land, identical prayers could not have been made in respect of the suit property in the application at Ex.27, as no liberty had been Page 8 of 67 C/SCA/18684/2013 CAV JUDGMENT reserved. Considering the provisions Order 23 Rule 1, the application filed by the Respondent No.3 was not maintainable in law. Both the Courts below have not considered the aforesaid legal aspect and have committed a grave illegality.
(e) That both the Courts below have not appreciated the evidence produced by the petitioners, demonstrating their possession over the subject land. The petitioners are in open possession of the subject land, to the knowledge of the respondents for the past over 12 years. The petitioners are running a STD/PCO booth, as also a tea stall, on a portion of the subject land. The petitioners are regularly renting out the open portion of the subject land for social events such as "Garba", marriages etc. the evidence pertaining to the same has also been produced before the Courts below which shows the possession of the petitioners on the subject land. However, both the Courts below have not considered the aforementioned factual aspect Page 9 of 67 C/SCA/18684/2013 CAV JUDGMENT while deciding the applications filed by the parties. Therefore, both the Courts below have committed grave illegality.
(f) That the both the Courts below have ignored the evidence produced on record by the petitioners and have believed the mere averments of the respondents, without any documentary evidence, while deciding the applications filed by the parties. In the Report of the Court Commissioner, made in the instant suit, that is, Regular Civil Suit No.98 of 2009, it has been recorded that the keys to the cabins are with the petitioners. This is suggestive of the possession of the petitioners. The Trial Court and the Appellate Court have totally ignored the evidence of possession produced by the petitioners regarding the subject land, in the shape of electricity bills, and have overlooked the documentary evidence that the petitioners are regularly renting out the open portion of the suit property for social events. Page 10 of 67 C/SCA/18684/2013 CAV JUDGMENT
(g) The respondents live at a distance of only two kilometers from the suit land and regularly pass by the said land. They are very much aware of the possession of the petitioners over the suit land. The petitioners are seeking title by way of adverse possession, as has been mentioned in the plaint. Both the Trial Court and the Appellate Court have not considered the evidence produced by the petitioners but have believed the bare averments made by the respondents, to the effect that the petitioners have been permitted to use only a portion of the suit property, on which Cabins have been constructed. The petitioners are claiming ownership of the entire suit property and are denying permissive user in respect of a portion of the land.
(h) That both the Courts below have erred in relying solely on the socalled admissions made in the written statement allegedly filed in the earlier suit by the petitioners. That the so called admission of the petitioners in the said Page 11 of 67 C/SCA/18684/2013 CAV JUDGMENT written statement wherein the petitioners had been arraigned as defendants, has been believed by both the Courts below, despite the fact that the petitioners have categorically stated that the signatures on the said written statement have been obtained fraudulently. On the one hand, the Trial Court has observed that the allegations of fraud are a "matter of evidence"
to be decided during the trial and on the other hand, the Trial Court has relied upon the averments made in the written statement, which are denied by the petitioners on the ground of fraud.
(i) That the findings of the Trial Court have been confirmed by the Appellate Court, without taking into consideration the aspect that if the allegations of fraud are to be proved by leading evidence at the stage of trial, then, by the same standards, the averments contained in the earlier written statement, on which the signatures of the petitioners have been fraudulently obtained, Page 12 of 67 C/SCA/18684/2013 CAV JUDGMENT ought not have been taken into consideration at this stage.
(j) That both the Courts below have materially erred while taking into consideration the pleadings in the earlier suit filed by the respondents which has been unconditionally withdrawn. That authenticity of the pleadings made in the said suit has never been tested, therefore, the Courts below ought not to have relied on the same. The Report of the Court Commissioner made in the earlier suit that was unconditionally withdrawn by the respondents, has been wrongly relied upon by both the Courts below, despite the fact that the Report of the Court Commissioner in the present suit speaks about the keys of the cabin being in the possession of the petitioners and does not state that the open land is in the possession of the respondents, as has been wrongly concluded by both the Courts below.
(k) That the Courts below, by allowing the Page 13 of 67 C/SCA/18684/2013 CAV JUDGMENT counter injunction application filed by the respondent No.3 (Ex.27) and by rejecting the application filed by the petitioners (Ex.5), have virtually made the suit filed by the petitioners infructuous and the petitioners have been injuncted in their own land without any further trial.
(l) That the filing of Ex.27 has no foundation. That there can not be any injunction / counter injunction application in the absence of any suit or any counter claim. In the absence of any counter claim, no counter injunction application ought to have been entertained by the Courts below.
6. In support of the above submissions, learned Senior Advocate for the petitioners has placed reliance upon the following judgments:
(1) Narayan Jethdnand since Deceased by his LRs v. Asapuri Vijay Saw Mill 1995(1) GLH 1147 (2) State Bank of India Vs. Gracure Pharmaceuticals Limited (2014)3 SCC 595 (3) Coffee Board. Vs. Ramesh Exports Private Limited (2014)6 SCC 424 Page 14 of 67 C/SCA/18684/2013 CAV JUDGMENT (4) Virgo Industries (Eng.) Private Limited v Venturetech Solutions Private Limited (2013)1 SCC 625 (5) Vasu P. Shetty v Hotel Vandana Palace and Others (2014)5 SCC 660 (6) Vasantkumar Radhakisan Vora (Dead) by LRs v Board Of Trustees Of The Port Of Bombay (1991)1 SCC 761 (7) Maria Margarida Sequeira Fernandes v Erasmo Jack De Sequeira (Dead) Through LRs (2012)5 SCC 370 (8) Babu Lal v. M/s. Vijay Solvex Ltd. 2014 (9) SCALE 222 (9) National Textile Corporation Limited v.
Nareshkumar Badrikumar Jagad & Ors. (2011)12 SCC 695 (10) The Management of State Bank of Hyderabad v. Vasudev Anant Bhide Etc. 1969 (2) SCC 491
7. Mr.R.S.Sanjanwala, learned Senior Advocate, with Mr.Nikunt K.Raval, learned advocate for respondents Nos.1 and 2, has opposed the prayers made in the petition, on the basis of the submissions recorded hereinbelow:
(I) That, the petitioners were never in the possession of the open parcel of land. The father of the petitioners has accepted, in the Page 15 of 67 C/SCA/18684/2013 CAV JUDGMENT written statement filed in Regular Civil Suit No.373 of 2006, that they were never in the possession of the open land.
(II) That, the possession of the petitioners over the cabin in question is permissive possession. The petitioners have averred that they were known to the defendants and that the defendants (respondents herein) permitted the use of the cabin, in view of their longstanding relations. The petitioners are unable to establish on a factual examination, their possession qua the rest of the land. For a claim of adverse possession to be successfully made, there has to be evidence of hostile possession, which is open, clearly to the knowledge of the owners and continuous, for a minimal period of 12 years, for which looking to the documents produced along with the plaint, there is no primafacie evidence. Moreover, as long as the written statement filed by the petitioners in Civil Suit No.373 of 2006 is not declared as fraudulent, there cannot be a case for adverse possession at all.
Page 16 of 67 C/SCA/18684/2013 CAV JUDGMENT
(III) The petitioners filed a separate suit, being Regular Civil Suit No.127 of 2009, for declaration qua the written statement filed by them in Regular Civil Suit No.373 of 2006. The application Ex.5, in the said suit, for an identical injunction for the open land was rejected. The appeal against the said order has also been rejected. Both the orders have been accepted by the petitioners. The orders have not been challenged during the operation and subsistence of those orders. The petitioners are, therefore, estopped from challenging the impugned orders. Even looking to the documents produced along with the plaint in the present suit (Civil Suit No.98 of 2009), the continual, open and hostile possession for a period of 12 years is not primafacie made out. The electricity bill is for the STDPCO booth running in the name of Hardik Telecommunications starting from the year 2002. The Navratri permission does not show whose permission is sought, and no other details qua the land are also specifically mentioned.
Page 17 of 67 C/SCA/18684/2013 CAV JUDGMENT (IV) Even otherwise, a plea for adverse possession can only exist as a defence. The same cannot be used to raise a claim to file a suit for declaration. All other reliefs in Civil Suit No.98 of 2009, are consequential and flow out of the pleadings and relief for declaration qua adverse possession.
(V) The counterinjunction application on behalf of the respondents is maintainable on account of the language of Order 2, Rule 2 of the Code.
(VI) That, the previous suit, being Civil Suit No.373 of 2006, was clearly withdrawn on account of the written statement filed by the father of the petitioners. The withdrawal Purshis clearly stated that no cause of action survived, and was submitted after the filing of the written statement by the father of the petitioners. The same has been placed on the record of Civil Suit No.98 of 2009, along with the written statement of the respondents (original defendants) in Civil Suit No.373 of Page 18 of 67 C/SCA/18684/2013 CAV JUDGMENT 2006, along with the Panchnama carried out in Civil Suit No.373 of 2006, after which Civil Suit No.127 of 2009 was filed and the present suit was also amended.
8. On the above grounds, it is submitted by learned Senior Advocate for respondents Nos.1 and 2 that the petition, being devoid of merit, be rejected.
9. In support of his submissions, learned Senior Advocate appearing for respondents Nos.1 and 2 has relied upon the following judgments:
(I) Gurudwara Sahib v. Gram Panchayat Village Sirthala And Another (2014)1 SCC 669 (II) Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. AIR 2009 SC 103.
10. Mr.Mehul S.Shah, learned advocate for respondent No.3 has opposed the petition by making the following submissions:
(i) Both the Courts below have rendered concurrent findings of fact regarding the aspect of the possession of the petitioners only upon a Page 19 of 67 C/SCA/18684/2013 CAV JUDGMENT portion of the land where the Cabins have been constructed.
(ii) The Courts below have found that the open portion of the suit property is in the possession of the respondents. There is no dispute regarding the fact that the respondents are the owners of the suit property. The petitioners are not in adverse possession of the suit property but have been permitted to use a certain portion thereof, therefore, it is a case of permissive user.
(iii) There are no pleadings in the plaint regarding the stage at which the possession of the petitioners has allegedly became adverse. It has not been stated that the respondents have asked them to vacate the property and that they have refused, it cannot be said that the petitioners are in adverse possession of the suit property.
(iv) That the Trial Court has observed that the petitioners did not disclose the fact that the respondents had filed the earlier suit Page 20 of 67 C/SCA/18684/2013 CAV JUDGMENT which was withdrawn, therefore, the conduct of the petitioners has also weighed with both the Courts below, while passing the impugned orders.
However, the Trial Court has partlyallowed the application of the petitioners insofar as the Cabins are concerned and has allowed the application at Ex.27 filed by the respondents regarding the open portion of the land.
(v) The petitioners have admitted in the written statement filed by them in the earlier suit, that they are only in possession of the land on which the Cabins have been constructed and this aspect has been noted by both the Courts below, while passing the orders under challenge.
(vi) That the filing of the application at Ex.27 cannot be said to be on the same cause of action but is a new cause of action.
(vii) That the orders of both the Courts below are wellreasoned ones. The Appellate Court has considered all relevant factual aspects, therefore, this Court may not interfere. Page 21 of 67 C/SCA/18684/2013 CAV JUDGMENT
(viii) That the possession of the open land would go with the title.
11. In support of the above submissions, learned advocate for respondent No.3 has placed reliance upon the following judgments:
(i) Gurudwara Sahib v. Gram Panchayat Village Sirthala & Anr. 2013 (11) SCALE 564 :
(2014)1 SCC 669 [Also relied by learned counsel for respondents Nos.1 and 2]
(ii) State of Haryana v. Mukesh Kumar & Ors.
AIR 2012 SC 559
(iii) Karnataka Board of Wakf v. Government of India And Others - (2004)10 SCC 779
(iv) Md.Mohammad Ali (Dead) By LRs v. Sri Jagadish Kalita & Ors. 2003(8) SCALE 356
(v) Sivakami Achi v. Narayana Chettiar - AIR 1939 Madras 495
(vi) Rattu v. Mala And Another - AIR 1968 Rajasthan 212
(vii) Dalip Singh v. Mehar Singh Rathee and others - 2005 AIR SCW 3311
(viii) Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira (Dead) Through LRs - AIR 2012 SC 1727 : (2012)5 SCC 370 [Also relied by learned counsel for the petitioners]
(ix) Mohammad Khalil Khan and Others v. Mahbub Ali Mian and others - AIR (36) 1949 Privy Council 78
(x) N.R.Narayan Swamy v. B.Francis Jagan - Page 22 of 67 C/SCA/18684/2013 CAV JUDGMENT AIR 2001 SC 2469
(xi) Mohd. Akram Ansari v. Chief Election Officer & Ors. 2007(14) SCALE 30
12. On the above grounds, it is prayed that the petition be rejected.
13. In rejoinder to the submissions made on behalf of the respondents, Mr.Shalin N.Mehta, learned Senior Advocate for the petitioners, has submitted that:
(a) Insofar as the submission advanced on behalf of the respondents, to the effect that the petitioners have admitted in the written statement allegedly filed in the earlier suit that they are the permissive users of the cabin space and, therefore, they cannot claim adverse possession over the entire parcel of land, it is submitted that the said written statement, as well as the contents thereof, are not admitted by the petitioners as the signature on the said document has been obtained fraudulently by the respondents. The petitioners would be in a position to prove this aspect at the time of Page 23 of 67 C/SCA/18684/2013 CAV JUDGMENT trial. However, it is a fact that the suit in which the petitioners had allegedly filed the written statement has been unconditionally withdrawn by the respondents, therefore, it has not been proved or disproved, and cannot be relied on by the respondents to disprove the contention of the petitioners of having become the owners of the subject land, by adverse possession.
(b) As regards the submission of the respondents that the earlier suit has been withdrawn upon the admission made by the petitioners in the written statement, therefore no cause had survived for the respondents to continue with the suit, it is submitted on behalf of the petitioners that the suit has been withdrawn unconditionally and there are no averments in the withdrawal Purshis regarding the aspect canvassed by the respondents before this Court. If any admission was made by the petitioners regarding their claim, in that event the respondents ought to have persuaded the Court to pass a decree to that effect. However, Page 24 of 67 C/SCA/18684/2013 CAV JUDGMENT the respondents have chosen to withdraw the suit unconditionally, without seeking any leave from the court to file a fresh suit / application for the same prayer / claim / relief. In view of the above the application at Ex.27 could not have been allowed by the court below.
(c) Referring to the documents produced by respondents Nos.1 and 2 by way of the paperbook before this Court, it is submitted that this has been done at the fag end of the hearing. It is submitted that the document at Sr. No.1 pertains to the Panchnama made in the earlier suit, that is, Regular Civil Suit No.373 of 2006, which has already been withdrawn by the respondents and the contents of the proceedings therein are seriously disputed by the petitioners. The other document is the Panchnama carried out in the instant suit, wherein the possession of the land has been shown to be with the petitioners. All the keys have been recovered from the possession of the petitioners and nothing has been found from the respondents. The documents mentioned at Sr. Nos.3 to 6 pertain to the proceedings of Page 25 of 67 C/SCA/18684/2013 CAV JUDGMENT Regular Civil Suit No.127 of 2009 & Miscellaneous Civil Appeal No.11 of 2011, filed by the petitioners. These documents do not form a part of the record of the Courts below in the present suit, therefore, they cannot be relied upon by the respondents. The present proceedings arise out of the orders passed by the Courts below in Civil Suit No.98 of 2009 and Misc.
Civil Appeal No.12 of 2011 only and the said documents are, therefore, of no relevance. The documents produced at Sr. No.7 support the case of the petitioners, which has not at all been considered by the Courts below. That the petitioners have produced the electricity bills, the permission obtained by the event organizer for organizing 'Garba' as well as the affidavits of persons acknowledging the possession of the petitioners over the land in question. All these documents, which support the case of the petitioners have been ignored by the Courts below. The document produced at No.8 is the written statement filed by the respondents on behalf of the petitioners, by fraudulently Page 26 of 67 C/SCA/18684/2013 CAV JUDGMENT obtaining the signatures. This document is seriously disputed by the petitioners and the fact has been stated by the petitioners in the plaint of the present suit as well as in the application for injunction, as well as in the instant petition. Until and unless this document is proved by the respondents, at this stage, it cannot be relied upon. However, the Courts below have erroneously believed it and relied on the averments made therein, even before it could be proved or disproved by leading evidence.
(d) Referring to the submission advanced on behalf of the respondents that there is a suppression of facts on the part of the petitioners regarding the admission made in the written statement, it is submitted that the petitioners, for the first time came to know about the socalled admission in the written statement, when it was produced by the respondents along with their reply. As soon as it came within the knowledge of the petitioners, an appropriate amendment was made in the suit proceedings, which came to be allowed. No Page 27 of 67 C/SCA/18684/2013 CAV JUDGMENT admission was ever made by the petitioners, therefore, there was no suppression by the petitioners, at any stage of the proceedings.
(e) Referring to the contention of the respondents that only on the ground of insufficiency of averments regarding adverse possession in the plaint the suit filed by the petitioners deserves to be dismissed, it is submitted on behalf of the petitioners that the petitioners have made sufficient averments to prove adverse possession. The petitioners would also be leading evidence in support of this claim, in the suit. Even otherwise, the instant proceedings arise out of interlocutory orders passed by the Trial Court, confirmed by the Appellate Court, by overlooking the settled legal position, resulting in injuncting the petitioners in their own suit, on an application for counter injunction filed by the respondent No.3, in the absence of any counter claim.
(f) Lastly, it is submitted that all the judgments cited on behalf of the respondents are Page 28 of 67 C/SCA/18684/2013 CAV JUDGMENT not applicable to the facts of the present petition, since in the present proceedings, the petitioners challenge the interlocutory orders passed by the Courts below. The suit is yet to be tried and all the judgments cited by the respondents relate to the stage of Trial and cannot be applied at this stage as this Court is not conducting a minitrial.
14. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order(s) and other documents on record.
15. At this stage, it may be appropriate to refer to the judgments cited by learned counsel for the respective parties.
16. The judgments relied upon on behalf of the petitioners may be referred to, first. (1) In Narayan Jethdnand since Deceased by his LRs v. Asapuri Vijay Saw Mill (supra), this Court was deciding an appeal wherein an issue arose regarding the applicability of the Page 29 of 67 C/SCA/18684/2013 CAV JUDGMENT provisions of Order 23, Rules 1, 3 and 4 of the Code. In that case, the first suit filed by the plaintiff was withdrawn and the application for permission to file a fresh suit for the same subjectmatter was rejected by the Trial Court. In spite of that, the plaintiff filed another suit against the defendant. The Trial Court, after framing the preliminary issue, held that the subsequent suit was barred by Order 23 Rule 1 of the Code. The appeal to the High Court was dismissed. It was held that when the former suit was withdrawn without permission of the Court, the plaintiff is precluded from initiating the fresh suit in respect of the same subjectmatter. The contention of the plaintiff appellant that the allegations in both the suits were not exactly similar so as to bar the subsequent suit, was negatived by the High Court. The High Court held that in pith and substance, the cause of action, relief claimed, basis of the suit and averments were the same and under the provisions of Order 23, which are mandatory, the subsequent suit was barred. Page 30 of 67 C/SCA/18684/2013 CAV JUDGMENT The petitioners have relied upon this judgment to buttress the submission that the application at Ex.27, filed by respondent No.3 for counter injunction, was not maintainable in view of the fact that the respondents had withdrawn the earlier suit for the same relief, without reserving liberty to file fresh proceedings. (2) In State Bank of India Vs. Gracure Pharmaceuticals Limited (supra), the Supreme Court has reiterated the principles of law pertaining to Order 2 Rule 2 of the Code, which bar a subsequent suit when the cause of action is the same. In that case, two consecutive suits were filed based on the same cause of action. The facts on which the subsequent suit was filed existed on the date of the filing of the first suit and no fresh cause of action had arisen in the interregnum between the two suits. The relief sought in the second suit could have been sought in the first suit. The Supreme Court held that the cause of action in both the suits being the same, and the plaintiff having omitted to seek relief in the first suit, he cannot file Page 31 of 67 C/SCA/18684/2013 CAV JUDGMENT the second suit seeking the same relief. (3) Coffee Board. Vs. Ramesh Exports Private Limited (supra), is a judgment reiterating the principles of law enunciated by the Supreme Court regarding Order 2 Rule 2 of the Code, wherein, it was held, on facts, that the cause of action on which the two suits were based were the same, as were the parties, and in the absence of any explanation of the plaintiff as to why the reliefs claimed in the subsequent suit had not been claimed in the previous suit, the subsequent suit was barred under Rule 2 Order 2 of the Code.
(4) Virgo Industries (Eng.) Private Limited v Venturetech Solutions Private Limited (supra), is again a judgment of the Supreme Court wherein the principles of law regarding Order 2 Rule 2 (2) and (3) have been reiterated. As the said principles have already been discussed in the previous judgments, this Court does not consider it useful to repeat the same. (5) The judgment in Vasu P. Shetty v Hotel Page 32 of 67 C/SCA/18684/2013 CAV JUDGMENT Vandana Palace and Others (supra) has been pressed into service on the ground that a new plea can be taken at any stage though not taken before the Courts below. This judgment is regarding the Security Interest (Enforcement) rules, 2002, and the mandatory provisions of Rules 8 and 9 thereof. It is not understood by this Court, how this judgment is relevant to the case in hand, therefore, it does not merit any further discussion.
(6) The judgment in Vasantkumar Radhakisan Vora (Dead) by LRs v Board Of Trustees Of The Port Of Bombay (supra), has been pressed into service on the ground that a pure question of law, which goes to the root of the jurisdiction, can be permitted to be raised for the first time in an appeal under Article 136. In the view of this Court, this judgment is not relevant to the issue arising in the present petition at the present stage, therefore, it requires no further discussion.
(7) The next judgment relied upon on behalf of the petitioners is Maria Margarida Sequeira Page 33 of 67 C/SCA/18684/2013 CAV JUDGMENT Fernandes v Erasmo Jack De Sequeira (Dead) Through LRs (supra), wherein the Supreme Court has stated that apart from the pleadings, the Court must insist on documentary proof in support of the pleadings. It has been argued on behalf of the petitioners that in the present case, the case of the respondents is merely based upon pleadings and no documents have been proved by them to justify their claim. (8) Babu Lal v. M/s. Vijay Solvex Ltd. (supra), has been relied upon by the learned advocate for the petitioners in support of his contention that while dealing with the matter relating to the vacation of an order of temporary injunction, it was not open for the Courts to give a finding on the main issue relating to the maintainability of the suit. (9) On behalf of the petitioners, reliance has also been placed upon National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad & Ors. (supra) and The Management of State Bank of Hyderabad v. Vasudev Anant Bhide Page 34 of 67 C/SCA/18684/2013 CAV JUDGMENT Etc. (supra), on the ground that a new plea constituting a pure legal issue can be raised at any stage of the proceedings.
17. The judgments cited on behalf of respondents Nos.1 and 2 may now be referred to.
(1) In Gurudwara Sahib v. Gram Panchayat Village Sirthala And Another (supra), the Supreme Court has held that a declaration of ownership of land on the basis of adverse possession cannot be sought by plaintiff but the claim of ownership by adverse possession can be made by way of defence when arrayed as defendant in proceedings against him.
(2) In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. (supra), the Supreme Court has discussed the concepts of, and principles of law regarding, adverse possession by referring to several judgments, and has observed that:
"34. ..... the law of adverse possession ousts an owner on the basis of inaction within limitation is irrational, illogical Page 35 of 67 C/SCA/18684/2013 CAV JUDGMENT and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner....
The Supreme Court expressed an opinion that there is an urgent need to fresh look regarding the law on adverse possession.
18. Learned advocate for respondent No.3 has cited several judgments, which are referred to hereinbelow:
(1) In Gurudwara Sahib v. Gram Panchayat Village Sirthala & Anr. (supra), the Supreme Court has held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership.
Only if proceedings are filed against the appellant and an appellant is arrayed as a defendant, can adverse possession be used as a shield/ defence.
(2) In State of Haryana v. Mukesh Kumar & Page 36 of 67 C/SCA/18684/2013 CAV JUDGMENT Ors. (supra), the Supreme Court has discussed the concept of adverse possession and has said, in Paragraph35 of the judgment, that a person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. After discussing the law of adverse possession, as emerging from English and Indian judgments, it is observed that the Parliament may consider abolishing the law of adverse possession, or at least amending and making substantial changes in the said law in the larger public interest.
(3) In Karnataka Board of Wakf v.
Government of India And Others (supra), the Supreme Court, after discussing the concept of adverse possession, has held that the possession of a person claiming adverse possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. It is stated that a plea of Page 37 of 67 C/SCA/18684/2013 CAV JUDGMENT adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his possession was open and undisturbed. It is reiterated that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (4) Reliance has also been placed on Md.Mohammad Ali (Dead) By LRs v. Sri Jagadish Kalita & Ors. (supra), wherein the Supreme Court has, once again, discussed the law of adverse possession and has held that in the case before it, the respondents had failed to raise a plea of ouster and no finding had been arrived at by the High Court as to from which date they began to possess adversely against the plaintiff or his predecessors in interest. It is further held that mere nonpayment of rents and taxes Page 38 of 67 C/SCA/18684/2013 CAV JUDGMENT may be one of the factors for proving adverse possession but cannot be said to be the sole factor. It is held that long and continuous possession, by itself, would not constitute adverse possession.
(5) In Sivakami Achi v. Narayana Chettiar (supra), the Supreme Court has held that the defendant can apply for a counterinjunction under Order 39 Rule 1 of the Code as the words used in the said provision of law are "by any party", which includes the defendant. (6) In Rattu v. Mala And Another - AIR 1968 Rajasthan (supra), relying upon the above judgment of the Madras High Court, it has been held that the defendant can apply for an injunction against the plaintiff under Order 39 of the Code.
(7) Reliance has been placed upon Dalip Singh v. Mehar Singh Rathee and others (supra), wherein it is held that the plea that the suit was barred under Order 23, Rule 1 of the Code had not been taken in the written statement and Page 39 of 67 C/SCA/18684/2013 CAV JUDGMENT no issue was framed to that effect. The said plea was raised for the first time before the first appellate Court and was negatived. The said plea was not taken before the High Court, therefore, the appellant could not be permitted to raise that plea before the Supreme Court. (8) In Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira (Dead) Through LRs (supra), the Supreme Court has held that in a suit for mandatory injunction, the Court should critically examine the pleadings and documents and pass an order after taking into account pragmatic realities. This judgment has also been relied upon on behalf of the petitioners. (9) Reliance has been placed upon a judgment in Mohammad Khalil Khan and Others v. Mahbub Ali Mian and others (supra), wherein principles have been laid down regarding the correct test to be applied in cases falling under Order 2 Rule 2 of Code.
(10) In N.R.Narayan Swamy v. B.Francis Jagan Page 40 of 67 C/SCA/18684/2013 CAV JUDGMENT (supra), the Supreme Court was dealing with a case under the Karnataka Rent Control Act. It was held that successive suits can be filed by the landlord on the ground of bona fide requirement and nonpayment of rent. The first suit was withdrawn as not pressed, however, the second suit was not barred either by Order 23 Rule 1(4) of the Code or Section 45 of the Karnataka Act.
(11) The judgment in Mohd. Akram Ansari v.
Chief Election Officer & Ors. (supra), has been relied upon on behalf of respondent No.3 on the ground that a point that has not been raised or mentioned in the judgment of the lower Court is deemed to have been given up and it is not open to the petitioners to raise that point in appeal.
This judgment, in the view of this Court, is not at all applicable in the factual conspectus of the case.
19. After having heard learned counsel for the respective parties at length and considering the Page 41 of 67 C/SCA/18684/2013 CAV JUDGMENT rival submissions, and upon perusal of the orders of the Trial Court and Appellate Court, certain aspects clearly emerging from the material on record, may be mentioned.
20. The petitioners have ostensibly challenged only the impugned order dated 30.11.2013, passed by the Appellate Court. However, since the said order confirms the order of the Trial Court dated 17.02.2011, in order to obviate technical considerations, it can be said that the findings of the Trial Court, as confirmed by the Appellate Court, are also under challenge.
21. While issuing Notice in the petition after extensive biparte hearing, this Court has stayed the implementation, execution and operation of the impugned order dated 30.11.2013, passed by the Appellate Court, vide order dated 27.12.2013. The interim relief has been extended from time to time and is in operation as of today.
22. A perusal of the order of the Trial Court and the impugned order passed by the Appellate Page 42 of 67 C/SCA/18684/2013 CAV JUDGMENT Court, makes it clear that one of the factors that has weighed greatly with both the Courts is the alleged admission in the written statement filed by the petitioners in Civil Suit No.373 of 2006, in which they were arrayed as defendants. The said written statement is seriously disputed by the petitioners on the ground that the signatures were fraudulently obtained by the present respondents, therefore, they are not bound by the contents of the written statement. It is further the case of the petitioners that they were not aware of the said written statement until it was produced by the respondents in Regular Civil Suit No.98 of 2009. Upon their coming to know of the written statement which, allegedly, contains an admission that the petitioners are in possession of only the Cabins on the land and not the open land, they filed an application for the amendment of the Plaint in the present suit, which came to be allowed. A perusal of the orders of the Trial Court and the Appellate Court would go to show that both the Courts Page 43 of 67 C/SCA/18684/2013 CAV JUDGMENT below have arrived at a conclusion that the petitioners have made an admission in the written statement, upon which the respondents had withdrawn the earlier suit unconditionally. Both the Courts below have not considered the aspect that the application for amendment of the Plaint of the present suit has been allowed by the Trial Court and, in the amended Plaint, it is clearly stated that the written statement in which the alleged admission was made, has been obtained by fraud and the contents are seriously disputed.
23. A perusal of the orders of the Trial Court and the Appellate Court further reveal that insofar as the allegations of fraud, regarding the written statement, are concerned, both the Courts below have arrived at a conclusion that the allegations regarding fraud are a matter of evidence, to be proved during the trial. Having said that, both the Courts below have proceeded to believe the socalled admission in the written statement, even before an opportunity is granted to the parties to lead evidence to Page 44 of 67 C/SCA/18684/2013 CAV JUDGMENT prove/ disprove the allegations of fraud. On one hand, both the Courts below have dismissed the contentions of the petitioners that the admission contained in the earlier written statement has been fraudulently obtained, hence is seriously disputed; and on the other hand, both the Courts below have proceeded on the footing that the said admission is true. Both the Courts below have based their respective orders on the socalled admission made in the written statement, without considering that the said admission is disputed and the allegations regarding fraud are yet to be put to evidence and trial. The issue has been concluded by the Courts below even before a definite or final conclusion has been arrived at, after leading evidence.
24. It appears that the petitioners have filed another suit, being Regular Civil Suit No.127 of 2009, challenging the written statement allegedly filed by them in the first suit, as being fraudulent in nature and not binding upon them, being Regular Civil Suit No.373 of 2006. Page 45 of 67 C/SCA/18684/2013 CAV JUDGMENT This suit is stated to be pending. The fact, therefore, remains that the allegations regarding fraud are still to be proved by leading evidence during the trial. Therefore, till such time as they are either proved or disproved, the Trial Court and the Appellate Court could not have proceeded on the assumption that the contents of the written statement, which are seriously disputed by the petitioners, are true. The Courts are expected to apply the same standards to the parties. The contentions of the petitioners regarding fraud have been rejected on the ground that they are a matter of evidence but the contents of the disputed written statement, alleged to have been obtained by fraud, have been believed. It appears from the above that the same standards have not been applied in appreciating the evidence on record by the Trial Court and the Appellate Court. Until and unless the allegations of fraud are not disproved after proper adjudication, it is not open to the Courts below to rely on the contents of the written statement. Page 46 of 67 C/SCA/18684/2013 CAV JUDGMENT
25. It is been elaborately argued on behalf of the respondents that the case of the petitioners for adverse possession, is not maintainable and such a plea can only be taken in defence. That there are no pleadings regarding when the possession of the petitioners turned hostile and for how many years it has remained as such. It has further been submitted on behalf of the petitioners that the elements of adverse possession, such as hostile possession to the knowledge of the respondents, have not been made out in the suit filed by the petitioners. Several judgments of the Supreme Court have been cited in this regard, which have been referred to hereinabove. This Court cannot dispute the principles of law enunciated by the Supreme Court in the abovequoted judgments. However, the question is regarding the applicability of those judgments at the present stage of the proceedings. In the view of this Court, the said judgments cannot be pressed into service at the present stage, which is not the proper stage to decide whether the possession of the petitioners Page 47 of 67 C/SCA/18684/2013 CAV JUDGMENT over the subjectland amounts to adverse possession, or not. The respondents can cite those judgments at the appropriate stage of the proceedings. At this stage, this Court cannot decide the issue regarding adverse possession as this petition arises from an interlocutory order and any opinion expressed in this regard could seriously prejudice the case of either of the parties during the trial.
26. The nature of the proceedings that are being dealt with by this Court, in the present petition, may not be lost sight of. This is a petition wherein interlocutory orders of the Trial Court and Appellate Court, passed in interlocutory proceedings, have been challenged. The suit itself is pending. Issues are yet to be framed and evidence it yet to be adduced. The issue regarding adverse possession is one that the Trial Court would have to decide, after framing necessary issues and taking evidence. In interlocutory proceedings, such as the present one, the Trial Court or the Appellate Court may not render findings that have the effect of Page 48 of 67 C/SCA/18684/2013 CAV JUDGMENT prejudging or predeciding this issue and rendering the suit infructuous. A perusal of the orders of the Trial Court and the Appellate Court suggests that this is exactly what both the Courts below have done. Evidence has been discussed as though in the final judgment after trial and findings have been rendered on the issue of adverse possession, that would be detrimental to the case of the petitioners during the trial. While deciding the applications at Ex.5 and Ex.27, the Trial Court, as also the Appellate Court, have rendered findings that go to the root of the matter and almost amount to finally deciding the suit itself. This course of action is not warranted in law.
27. The view of this Court finds support from a judgment of the Supreme Court in Anand Prasad Agarwalla v. Tarkeshwar Prasad And Others - (2001)5 SCC 568, wherein it is held as below:
"6. It may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction. As noticed Page 49 of 67 C/SCA/18684/2013 CAV JUDGMENT by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it can not be said that such possession is by a trespasser. The claim of the contesting respondents is in their own right. The decisions referred to by the learned counsel for the appellant are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents. In these circumstances, we dismiss these appeals. We may notice that the timebound directions issued by the Division Bench will have to be adhered to strictly by the parties concerned and the suits should be disposed of at an early date but not later than six months from the date of the communication of this order."
Page 50 of 67 C/SCA/18684/2013 CAV JUDGMENT
(emphasis supplied) The principle of law enunciated by the Supreme Court in the abovequoted judgment is that at the stage of decision of an application for grant of interim injunction under Order 39 Rules 1 and 2, the Courts should not hold a mini trial. The principle of law enunciated by the Supreme Court squarely applies to the present case, as both the Trial Court and the Appellate Court appear to have fallen prey to the temptation of holding a minitrial at the interim stage.
28. In M/s.Anand Associates v. Nagpur Improvement Trust and others - AIR 2000 SC 3350, the Supreme Court has held as below:
"3. Having heard learned counsel for the parties, we find that the trial Court only took up to decide the application for temporary injunction not the suit itself. While disposing of the same, the trial Court also dismissed the suit itself. This part of the order cannot be sustained. As we have said above by that date neither any issues was framed nor any evidence was led. Page 51 of 67 C/SCA/18684/2013 CAV JUDGMENT The Courts below did not examine case from this perspective. So far dismissing the application for temporary injunction, we find no error was committed which requires any interference. So, while upholding the orders rejecting application for temporary injunction, we set aside the other part of the order of the Courts below which dismisses the suit itself. The case is remitted back to the trial Court for deciding the suit in accordance with law. It shall be open to the parties to raise all such questions as is permissible in law. Any observation made while disposing of the said interim application is without prejudice and will not forbid the parties to raise all such questions as permissible in law. The appeal is partly allowed..."
(emphasis supplied) Though, in the present case, the suit itself has not been expressly dismissed by the Trial Court, however, the findings of the Trial Court, as confirmed by the Appellate Court regarding the claim of adverse possession, almost amount to dismissing the suit at the interim stage, without framing of issues or leading of evidence as per the proper procedure to be adopted during Page 52 of 67 C/SCA/18684/2013 CAV JUDGMENT the trial.
29. While deciding the applications at Ex.5 and Ex.27, the Trial Court ought not to have dealt with the matter as if it was deciding the suit finally. In Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan And Another - (2002)5 SCC 760, the Supreme Court has laid down guidelines regarding the manner in which applications for grant of interim injunction ought to be dealt with and the factors to be considered while doing so. The relevant portion of the judgment of the Supreme Court is reproduced hereinbelow:
"7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the Court normally applies the following tests :
i) whether the plaintiff has a prima facie case;
ii) whether the balance of convenience is in favour of the plaintiff; and Page 53 of 67 C/SCA/18684/2013 CAV JUDGMENT
iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.
8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies.
Page 54 of 67 C/SCA/18684/2013 CAV JUDGMENT
... ... ...
11. .... Validity or otherwise of the order of revocation can be considered at the stage of interim injunction only for the limited purpose of ascertaining whether there is prima facie case in favour of the plaintiff/petitioner and not for determination of the question finally. From the discussions in the impugned order it appears that the High Court has dealt with the matter as if it was deciding the suit."
(emphasis supplied)
30. The petitioners have produced electricity bills on record in support of their claim of possession over the subject land in addition to a document which contains permission to the organizer of a Garba event on the open land which, according to the petitioners, they regularly rent out for such occasions. There are also affidavits on record by other individuals in support of the possession of the petitioners over the land in question. It is not as though the only prayer in the suit is regarding adverse possession. A perusal of the plaint shows that the petitioners have also prayed for the grant Page 55 of 67 C/SCA/18684/2013 CAV JUDGMENT of a permanent injunction protecting their possession over the subject land. This prayer has not been considered by both the Courts below, which have concentrated only on the issue of adverse possession and have almost decided it finally at the interim stage.
31. The Courts below do not appear to have taken into consideration the aspect that in the Panchnama prepared in the present suit, the possession of the keys to the Cabins were found to be with the petitioners. Instead, a finding has been given by the Trial Court, on the basis of the said Panchnama, that the possession of the open land is with the respondents. A perusal of the said Panchnama which has been placed on the record of this Court by respondents Nos.1 and 2, along with the paperbook, does not reveal that it is recorded therein that the possession of the open land is with the respondents.
32. On behalf of respondents Nos.1 and 2, a paper book of documents has been placed on record, out Page 56 of 67 C/SCA/18684/2013 CAV JUDGMENT of which several documents are not on the record of the Trial Court. The rest of the documents which are on the record of the Trial Court are to be appreciated by the Trial Court at the time of the trial.
33. Reliance is heavily placed on behalf of the respondents upon the written statement allegedly filed by the petitioners in the earlier suit which has been unconditionally withdrawn. It is the case of the respondents that the said written statement contains an admission by the petitioners that they are in permissive user of only the Cabins on the land and not the open land. As already stated hereinabove, this written statement and its contents are seriously disputed by the petitioners. The Plaint in the present suit, that is, Regular Civil Suit No.98 of 2009, has been amended to incorporate pleadings to the effect that the said written statement was obtained by fraud and the petitioners are not bound by the socalled admissions contained in it. This Court has also expressed a view that when the matter regarding Page 57 of 67 C/SCA/18684/2013 CAV JUDGMENT fraud is still open to adjudication and has not yet been finally decided, the contents of the written statement cannot be relied upon either by the Trial Court, Appellate Court or the respondents, at this stage as that would amount to prejudging the issue.
34. A submission has been advanced on behalf of respondents Nos.1 and 2 that the petitioners have accepted the orders of the rejection of the application at Ex.5 in Regular Civil Suit No.127 of 2009, and as the subjectmatter of both the suits is the same, the present petition, challenging the orders of the Courts below, is not maintainable. This submission does not merit acceptance as there is no bar on the petitioners in challenging the orders of the Courts below in a particular suit if they are aggrieved by them. What they choose to do in another suit is not the concern of the Court in the present petition and has no bearing upon the present proceedings. It cannot, therefore, be said that the petition is not maintainable.
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35. It has been vehemently argued on behalf of the respondents that the possession of the petitioners over the Cabins on the subjectland is permissive in nature and the petitioners have admitted that the defendants are wellknown to them. It has further been submitted that no evidence has been produced by the petitioners to prove the claim of adverse possession for a continuous period of twelve years. On the other hand, the petitioners have stated that they are in possession of the subject land to the knowledge of the respondents for the past twelve years and are running an STD/PCO Booth as well as a Tea Stall on a portion thereof. It is further their case that they are regularly renting out the open portion of the subject land for social events such as "Garba", marriages etc. and the documentary evidence pertaining to the same has been produced before the Courts below, which shows the possession of the petitioners over the subject land. It is further the case of the petitioners that the respondents reside in the vicinity of the subject land and Page 59 of 67 C/SCA/18684/2013 CAV JUDGMENT their place of work is at a distance of about two kilometers from the said land. The respondents regularly pass through the subject land but have never objected to the possession of the petitioners since the past twelve years. These aspects pertain to the issue of adverse possession which the Trial Court would be called upon to decide finally.
36. Insofar as the grant of a temporary injunction is concerned, it is not as though the petitioners have not produced even a single shred of evidence regarding their alleged possession over the subject land. Though the Courts below have primafacie accepted the contention of the petitioners insofar as the Cabins is concerned, they have not done so regarding the open portion of the land. The petitioners have produced affidavits of various persons that have not been discussed by the Courts below. A receipt for organizing a `Garba' event on the land in question has also been produced, in the name of the organizer of the said event, for which no opinion has been Page 60 of 67 C/SCA/18684/2013 CAV JUDGMENT expressed by the Trial Court. In the view of this Court, at the stage of grant of interim injunction, the Trial Court or the Appellate Court were not called upon to decide the issue of adverse possession, but to balance the equities and pass an order that would not render the suit infructuous or amount to dismissal of the suit without trial. What was to be seen by the Courts below is whether the petitioners have an arguable primafacie case for the grant of an interim injunction based on the evidence produced by them and not whether they would be successful in the suit, or not. The orders of the Courts below almost amount to deciding the suit finally, against the petitioners. The refusal of interim injunction to the petitioners in respect of the subject land would render their suit infructuous, in the circumstances discussed hereinabove.
37. On behalf of the petitioners, it has been submitted that the application of respondent No.3 at Ex.27, for a counter injunction, could not have been filed as the prayers in the said Page 61 of 67 C/SCA/18684/2013 CAV JUDGMENT application are the same as those in the earlier suit filed by the respondents (Regular Civil Suit No.373 of 2006), which was unconditionally withdrawn, without reserving liberty to file a fresh suit or other proceedings, on the same cause of action. The respondents have stated that they withdrew the said suit on the basis of the admissions in the written statement filed by the present petitioners, admitting the permissive user of the Cabin portion of the land only and not on the open land, which is now being disputed by them. It has further been submitted on behalf of the respondents that a new plea regarding the applicability of the provisions of Order 2, Rule 2 and Order 23, Rule 1 of the Code cannot be taken at this stage, especially as it was not taken before the Courts below. The petitioners assert that such a plea is a pure question of law and can be taken at any stage. This Court does not propose to go into the aspect regarding the applicability of Order 2 Rule 2 and Order 23 Rule 1 of the Code, at this stage, as the adjudication of such a Page 62 of 67 C/SCA/18684/2013 CAV JUDGMENT plea may amount to an expression of opinion on certain issues that are pending adjudication and would have a bearing on the final decision in the suit. However, it is clarified that the petitioners are not precluded from raising these pleas before the Trial Court. If raised, the Trial Court shall consider and decide them in accordance with law.
38. Regarding the findings contained in the orders of the Trial Court and the Appellate Court, regarding suppression of material facts by the petitioners, it may be noted that the Trial Court has permitted the petitioners to amend the Plaint in the present suit, by incorporating pleadings to the effect that the signatures on the written statement filed in the earlier suit were obtained by fraud and that the petitioners came to know about this aspect only when it was produced by the respondents in the present suit. Once an amendment to the above effect has been granted by the Trial Court, it cannot be understood how the same Court can record that the petitioners have suppressed material facts. Page 63 of 67 C/SCA/18684/2013 CAV JUDGMENT This finding has been confirmed by the Appellate Court, without noticing this anomaly.
39. There is also the question of the maintainability of Ex.27, that has been raised on behalf of the petitioners. According to the petitioners, the said application was not maintainable, as a counter injunction could not have been granted in favour of the respondents in a suit filed by the petitioners. This aspect is required to be looked into, in the context of the provisions of Order 23 of the Code, as, according to the petitioners, the prayers made in the said application are the same as those made in the earlier suit filed by the respondents, which was unconditionally withdrawn. As already stated hereinabove. The petitioners can raise this aspect before the Trial Court during the course of the trial. If raised, the Trial Court shall adjudicate this aspect in accordance with law, as it is a question of law.
40. Considering all the above aspects cumulatively, Page 64 of 67 C/SCA/18684/2013 CAV JUDGMENT this Court is of the considered view that the judgment of the Trial Court, as confirmed by the Appellate Court, contains findings on the issue of adverse possession that almost amount to a final decision of the suit and would render the suit infructuous. It is a settled position of law that finding of a final nature ought not to be rendered at the interim stage. It does not appear to this Court, that a balanced view has been taken by the Courts below in this regard, or that the documentary evidence produced by the petitioners has been appreciated in proper perspective. Taking into consideration the aspect that the suit is yet to be finally adjudicated, no finding can be rendered that would go to the very roots of the matter at this stage.
41. Whether the petitioners succeed in the suit or not is not an aspect that this Court is called upon to consider. However, no litigant ought to be rendered remediless and the litigation rendered infructuous, even before the conclusion of the proceedings initiated by him, only for Page 65 of 67 C/SCA/18684/2013 CAV JUDGMENT want of protection by the Court till the final adjudication.
42. For the aforestated reasons, the following order is passed:
The petition is partlyallowed. The interim relief granted by this Court in its order dated 27.12.2013, which has been extended from time to time and is operative as of today, whereby the impugned order of the Appellate Court dated 30.11.2013, dismissing the appeal of the petitioners and confirming the order of the Trial Court below Exhibits 5 and 27, has been stayed, shall continue till the final decision of Regular Civil Suit No.98 of 1999.
In order to see that the respondents do not face any hardship, it is directed that the Trial Court shall expedite the hearing and decision of the suit and the parties shall cooperate in this regard. The suit shall be decided as expeditiously as possible and without avoidable delay.
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43. Rule is made absolute, to the above extent. There shall be no orders as to costs.
44. It is made clear that no observations made by this Court in the present judgment may be taken as an expression of final opinion on the merits of the case. The Trial Court shall decide the suit independently, on its own merits.
(SMT. ABHILASHA KUMARI, J.) sunil Page 67 of 67