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 a person can acquire easementary right over property which is owned by him?

 With regard to the nature of occupation of the defendant and the finding that the license in his favour was irrevocable under Section 60 of the said Act, it is necessary to refer to the respective pleadings of the parties. While the plaintiff came up with a specific case that he was the owner of the suit property by virtue of the sale-deed dated 16th August, 1983, according to the defendant this document was nominal in nature and executed by way of security for the amount borrowed. It was pleaded that the ownership of the defendant continued and the defendant did not lose his title by virtue of the sale-deed. In alternate, it was pleaded that the occupation of the defendant was by way of a license and a permanent structure had been constructed. As noted above, the relief with regard to declaration of title was rightly granted in favour of the plaintiff by the trial Court.

10. The Full Bench of this Court in Raychand Vanmalidas [supra] has held that though a party may raise inconsistent pleas of ownership and easement in the alternative in the same suit, such party has to elect one of the pleas through the course of the proceedings. Even if a party does not choose one of the alternate pleas, he can lead evidence on both and it is for the Court to decide whether he is entitled to succeed on one of his pleas. This judgment of the Full Bench was considered by the Hon'ble Supreme Court on Chapsibhai Dhanjibhai Dand [supra] and the same came to be affirmed. It was observed that after taking the plea of ownership and failing in the same, a party cannot subsequently turn around and claim that right as an easement by prescription. For establishing the right based on easement, such right has to be exercised on the property owned by somebody else and not as an incident of his own ownership of that property. In the light of this legal position, it is clear that the defendant having failed to prove his ownership cannot now be permitted to turn around and claim that by virtue of easementary right, he had undertaken a permanent construction and, therefore, was not liable to be evicted. In Shankar Gopinath Apte [supra], this position has been reiterated by emphasizing that the party undertaking the work of a permanent character should do so while "acting upon the license" under Section 60(b) of the said Act.

11. In view of this legal position, it is found that both the Courts committed an error in refusing the relief of possession to the plaintiff by relying upon the provisions of Section 60(b) of the said Act. Having failed to prove his title, it was not open for the defendant to fall back upon his other plea that he had easementary right in the suit property. Both the Courts refused the relief of possession by wrongly applying the law. Substantial question of law No. 2 is answered by holding that the defendant is not entitled to claim that on account of permanent construction being made, the license was irrevocable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 384 of 2003

Decided On: 09.02.2018

 Tulshidas  Vs. Madhukar

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Whether it is permissible to take in inconsistent plea of partition of property and adverse possession?

This court in case of Dilipkumar Bherumal Kucheriya (supra) held that the
party cannot claim possession pursuant to a partition in the joint family and at the
same time claim adverse possession which is not permissible in law. In my view
the plea of the defendant no.1 that there was a oral partition in the suit property in
the year 1982 and at the same time he pleaded adverse possession against the other
co-owners which is inconsistent and contrary. Be that as it may, the defendant
no.1 could not prove any of these two pleas raised before the learned trial judge.
The judgment of this court in case of Dilipkumar Bherumal Kucheriya (supra)

applies to the facts of this case. I am respectfully bound by the said judgment.
38. Insofar as substantial question of law no.1 formulated by this court is
concerned, in my view the plea of the title under an alleged oral partition and
claim of title under alleged adverse possession are inconsistent and thus learned
District Judge rightly rejected the plea of adverse possession. The said substantial
question is accordingly answered.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 111 OF 2016
ALONGWITH
CIVIL APPLICATION NO. 165 OF 2016
Punja Rama Bodke 
V
 Shivaji Vitoba Bodke 
 CORAM : R.D. DHANUKA, J.

 Dated: 16th DECEMBER, 2016
Citation: 2017(2) MHLJ 111Bom

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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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There must be substantial privation of light to constitute actionable obstruction to free passage of light or air

 In Rayachand v. Maniklal I.L.R. 1946 Bom. 184 (F.B.) it was held that an easement by prescription under Sections 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. Therefore, if the owner of a dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and be must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on some one else's property and not as an incident of his own ownership of that property. For that purpose, Ms consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement.

As to the light and air through the windows on the western side, it is clear from Explanations II and III to Section 33 that to constitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air is less than before. There must be a substantial privation of light, enough to render the occupation of the house uncomfortable, according to the ordinary notions of mankind. See Colls v. Home and Colonial Stores [1904] A.C. 179.

Supreme Court of India

Chapsibhai Dhanjibhai Danad vs Purushottam on 5 April, 1971

Bench: I.D.Dua, J Shelat

Equivalent citations: AIR 1971 SC 1878, (1971) 2 SCC 205, 1971 SuppSCR 335

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