Can the person claiming to be the immovable property's owner take the defence of the title by adverse possession?

The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, In the instant case the defendants have put forward defences which are irreconcilable’ and mutually destructive and inconsistent with one another.”

18. It is pertinent to note that in the present case, the defendant no. 1 has claimed rights in the suit property on the basis of being an owner. Reference may also be made to paragraph 3 at page no. 7 of the written statement, which is set out below:

“The entire consideration amount as well as stamp duty was paid by Smt. Krishna Gupta, Sapan Gupta wife and son of defendant no. 1 and further confirmed that since the Sale Deed or transfer documents cannot be executed and registered for the time being and as and when, this would be permissible, he would transfer the same in favour of Shri. Vijay Gupta and has also stated that the possession has been handed over to Shri. Vijay Gupta as a owner who is fully authorized to use it in any manner whatsoever and there will be no right to Late Ashok Kumar or his legal heirs in future. It is submitted that the Transfer Deed is incapable of execution even today and defendant reserve his right to file appropriate legal proceedings for transfer as and when the same would be permissible.”

19. In light of the dicta in Rama Kanta Jain (supra), the plea of adverse possession in the present case would not be available to the defendant no. 1, as he has claimed himself to be the owner in possession of the suit property.

 In the High Court of Delhi at New Delhi

(Before Amit Bansal, J.)

Anu Gupta Vs Vijay Gupta and Others 

CS(OS) 250/2020 and I.A. 11222/2021 (O-XXXIX R-2A of CPC)

Decided on August 8, 2022, 

Citation: 2022 SCC OnLine Del 2391

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Whether small cause court has jurisdiction to try the suit if the plaintiff takes inconsistent pleas of gratuitous licensee and trespasser?

Issue No. II:

Are there any contradictory pleas in the plaint to non-suit the plaintiff?

22. The petitioners here maintain that Vishala has taken contradictory pleas in the plaint. Those pleas are mutually destructive; they, in fact, denude the Small Cause Court of any jurisdiction to try the case.

23. First, I will refer to the authorities Vasanthi has relied on. In Prabhudas Damodar Kotecha, the Supreme Court has held that the Legislature having once conferred exclusive jurisdiction on one Court in all the suits between licensee and licensor, it would not have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. Let me consider the next one. In another case, the High Court declared a sub-tenant trespasser and ordered his eviction. In that context, in Hiralal Vallabhram, the Supreme Court has held that once an occupant is a trespasser, the Civil Court, not the High Court, has the jurisdiction to order his eviction.

24. Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. So held the Supreme Court in Chapsibhai Dhanjibhai Danad. Then, on facts, it has observed that the appellant did not attempt, during the trial, to establish accession by adverse possession. On the contrary, he wanted to make out a case of easementary rights by prescription. That plea, the Court held, was incompatible with the appellant's claim of adverse possession.

25. In Udhav Singh v. Madhav Rao Scindia [MANU/SC/0302/1975 : [1976] 2 SCR 246], the Supreme Court has held that any ingenious method of construction after compartmentalisation, dissection, segregation, or inversion of the language of the pleadings runs counter to the cardinal cannon of interpretation. In other words, a pleading must be read as a whole to ascertain its true import. It is not permissible to single out a sentence or a passage, and to read it out of the context--in isolation. Udhav Singh has further held that "it is the substance and not merely the form that has to be looked into."

26. In Ram Sarup Gupta (Dead) by Lrs. v. Bishun Narain Inter College [MANU/SC/0043/1987 : [1987] 2 SCC], the Supreme Court has further observed that the pleadings should receive liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

27. Coming back to the facts, I may note that in para 10 of the plaint, Vishala has pleaded that she moved to occupy the flat in February 1969. Her sister and brother-in-law followed her to the suit flat on the ground that their residence was uncomfortable and inadequate. Given their relationship, she could not object. Then, she pleads in para 26 that they are "in permissive occupation of the suit flat" along with her from 1969 to 1986, when Vishala sought their eviction.

28. In para 31, Vishala has pleaded that her sister turned dishonest and falsely advanced the benami-story. She again asserts that until "11.6.1986 the defendants were in permissive occupation. . . without any payment of charge." She has further pleaded that "from 11.6.1986, the defendants [have been] virtually trespassers in the suit flat and are hence liable to [be] vacate[d]."

29. True, when the suit was transferred, Vishala, it seems, added to the prayer clause that she is "the licensor and the defendants are the gratuitous licencees." This assertion, though, is not without foundation in the pleadings. Besides, Vishala has described her sister and brother-in-law as "virtual trespassers." In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [MANU/SC/1047/2004 : (2005) 1 SCC 705], the Supreme Court has held that "after determination of the tenancy, the position of the tenant is akin to that of a trespasser." Indeed, in that sense, Vishala has used the expression trespasser. This expression, I am afraid, neither contradicts nor confounds Vishala's pleas in the pleadings.

30. In Nagin Mansukhlal Dagli, the plaintiff pleaded that the licence granted to the defendant ended. So he contended that the defendant's possession was wrongful and illegal, and was "that of a trespasser." The plaintiff also wanted the court to declare the defendant a "trespasser." In this context, a Division Bench of this Court has examined whether a Small Cause Court has jurisdiction to entertain the suit for eviction.

31. Is the suit really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction? To answer this question, Nagin Mansukhlal Dagli has held that "it is the determination of the issue whether the licence has come to an end or not which would give the right to the plaintiff to obtain the relief of possession." The declaration sought does not, according to it, change the real nature of the suit. Finally, Nagin Mansukhlal Dagli has interpreted Section 41 of the Presidency Small Cause Courts Act, 1882, and held that this provision speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". Significantly, the words used in Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Then, it has concluded that despite the plaintiff's prayer for a declaration that the defendant is a trespasser, the Small Cause Court can try the suit.

32. After all, litigation is not mere logomachy--a fight over words; it is a fight over intentions. The intentions result in deeds, and the deeds get described in words. The words, as they describe the deeds, take their roots from the intentions.

33. An occupier may be a 'tenant', a licencee included, or a 'trespasser', one with a positive connotation and the other with a negative connotation. And 'occupier', on the other hand, is value neutral. Every word has a penumbral meaning, besides its core content. We do not, nor can we, always weigh words in the semantic scales; of course, they never remain in the prescriptive bounds, too. I may recall Anthony Burgess's coruscating comment on the imprecision of the language: Language has, in fact, many of the qualities possessed by the human beings themselves: it tends to be emotional when pure reason is required, it is sometimes unsure of what it means, it changes from meaning, sound. It is slippery, elusive, hard to fix, define, delimit.1 Glanville Williams classifies as a common error 'the idea that the words are somehow important of themselves, and irrespective their symbolic function."2 Edward de Bono may be right when he says "words [in a sense] are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions when we should be doing better."3

34. So I hold that Vishala's suit pleadings are not contradictory; they do not denude the Small Cause Court of its jurisdiction, either. Vasanthi and others are not trespassers in the statutory sense, though they may be in the sense Atma Ram Properties used.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 36 of 2018

Decided On: 17.09.2019

Vasanthi Shridhar Bangera Vs. Vishala Bokapatna Laxman

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2020 Bom 31

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Whether court can allow amendment of written statement destructive of earlier case at the stage of appeal?

Having considered the rival submissions and upon perusing the original pleadings viz. plaint and written statement as well as the proposed amendment, I find no hesitation in recording that the Court below was completely in error in concluding that the proposed amendment would be consistent with the stand already taken by the Respondent. However, I am of the considered view that the proposed amendment would not only be inconsistent with the earlier stand taken by the defendant, but is destructive of the same. I am persuaded to take this view, for the stand which was taken in the written statement was very specific that the Respondent was the direct tenant of the Petitioner. At no stage did the Respondent assert that he was claiming through the defendant No. 1. On the other hand his categorical case was that he was inducted in the suit premises after he was introduced by one Jitkar to the petitioner in the year 1960 and since then the petitioner had accepted him to be his tenant. This plea, in my view, is not only inconsistent with the new plea raised in the proposed amendment, but if the proposed amendment is allowed it would be clearly destructive of the original plea. Inasmuch as, by the proposed amendment, the Respondent, for the first time, wants to assert that he was in possession of the suit premises prior to 1.2.1973 in the capacity of sub-tenant of the defendant No. 1. There is perceptible difference between the stand taken in the original written statement and one suggested in the proposed amendment. No doubt the proposed amendment seeks to raise an alternative plea, but such an alternative plea if permitted would be totally destructive to the original stand. Moreover there is no foundation laid in the Trial Court to permit such a new plea. Besides that it would take the petitioner/plaintiff by surprise in the appeal. The Respondent cannot be allowed to take advantage of some averment in the plaint and succeed in this manner. There is nothing on record to show that the Respondent was in occupation of the suit premises as licensee of the original tenant Kondi Rama Dhinde, original defendant No. 1. To set up a claim of having protection under the provisions of Bombay Rent Act, the licensee must show that he had a subsisting licence on the relevant date. On the other hand, the stand taken by the Respondent all throughout the trial has been that the Respondent was paying rent directly to the Petitioner and was the direct tenant of the Petitioner. Respondent, therefore, cannot be allowed to approbate and reprobate or allowed to deviate from the earlier stand in the garb of an alternative plea that he is the licensee of defendant No. 1 especially when he had failed to categorically deny the case made out by the plaintiff and having admitted that the defendant No. 1 had no concern with the suit premises after 1960. The view that I propose to take, the same is supported by the decisions relied by the Counsel for the Petitioner. Whereas the decisions relied upon by the Respondent be clearly distinguished, for, in the present case I have no hesitation in concluding that if the proposed amendment is allowed it would permit the Respondent defendant No. 2 to raise a plea which would be destructive of the original stand taken in the written statement on the basis of which parties went to the trial. Moreover it would cause irreparable prejudice to the Petitioner herein, inasmuch as by the proposed amendment, the Respondent has for the first time asserted that he is in possession of the suit premises prior to 1.2.1973 as a licensee of the defendant No. 1. If the Respondent wanted to take this stand, it was incumbent upon him to do so in view of the express provisions contained in Order VIII of the C.P.C. with regard to the contents of the written statement. The Respondent having filed general and vague written statement while replying to the assertions in the plaint and at the same time took a specific stand, now the Respondent cannot be permitted to take the Petitioner by surprise on the stand on which no evidence has been adduced by either party before the Trial Court. Such an amendment, at the appeal stage, would be wholly inappropriate and ought not to be permitted in the interest of justice.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 71 of 1993

Decided On: 09.02.2001

Balu Appaji Sangaonkar  Vs.  Rangrao Dattoba Palkar

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation:2001(3) BOM CR,2001(2) ALLMR 556

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Whether it is permissible to raise mutually destructive plea in industrial adjudication?

A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication."

Supreme Court of India

Himmat Singh & Ors vs I.C.I. India Ltd. & Ors on 31 January, 2008

Bench: Dr. Arijit Pasayat, P. Sathasivam

           CASE NO.:
Appeal (civil)  7066 of 2001

Citation:2008 (5) ALLMR((NOC)17,2008 ALLSCR791

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Whether mutually inconsistent pleas can be raised in defence by defendants?

The said issue, one must say, is in the nature of an
alternative plea, pure and simple, not really destructive of the first plea
taken by the respondents that they have become the owners of the suit
field by virtue of document of sale deed dated 02/01/1991. It is well
settled law that even mutually inconsistent pleas could be raised in
defence by the defendants (See Arundhati Mishra (Smt.) vs. Sri Ram
Charitra Pandey (1994) 2 SCC 29). The only prohibition, as held in
the case of Vimal Chand Ghevarchand Jain vs. Ramakant Eknath Jadoo
(2009) 5 SCC 713, is that alternative pleas should not be destructive of
each other. They should be capable to coexist
with each other and
should not be so inconsistent as to make it impossible to prove one
plea unless the other is given up. Such a situation, as for example,
could be found when plea of adverse possession is taken and
simultaneously plea of transfer of title by virtue of sale or exchange is
taken. The plea of adverse possession is based upon the assertion of
one's possession with an intention to occupy it adversely to the true
owner and whereas, the plea of ownership based upon sale or
exchange essentially admits title of another. In such a scenario, period
of prescription required for perfecting the title by adverse possession
would not begin till the time the plea of transfer of title, by sale or
exchange is given up. The plea of deemed tenancy based upon claim

to remain in possession and enjoy the rights of a tenant, is obviously
not destructive of plea of ownership as it is not of such a nature that it
cannot be proved unless the latter is given up. Therefore, it could have
been very well set up as an alternate defence by the respondents. With
this, the second substantial question of law would have to be
answered as in the affirmative and accordingly, I do so.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 407 OF 2003
 Hausu Dhondba Uike, V Sahebrao Chintaman Salam


CORAM : S. B. SHUKRE, J.

DATED : JANUARY 15, 2014.
Citation; 2014(4) MHLJ 240 Bom

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