Mahant Bachan Dass vs Ved Prakash Gupta
1992 Latest Caselaw 475 Del

JUDGMENT

J.K. Mehra, J.

(1) Since the matter involved a short point I decided to hear the arguments of the parties and to appreciate the position had also sent for the trial court records.

(2) By this judgment I shall dispose of both the aforesaid appeals as common questions are involved in these appeals.

(3) These Second Appeals arise out of the judgment of the trial Court dismissing the suit of the plaintiff for perpetual and mandatory injunctions which decision has been upheld by the Senior Sub Judge vide the impugned order. To my mind the following substantial questions of law would arise in the present case:- 1. Whether in a case wherein the defendant has set up a defense of adverse possession, the courts below were correct in deciding the preliminary issue as to for the form of suit without recording of evidence? 2. Whether the court was correct in construing the principles of granting relief of mandatory injunction only when an act is apprehended and not when an act has already been committed?

(4) In this case, the plaintiff claiming to be landlord having inherited the temple complex, wherein the property in dispute is situated, had instituted a suit against the respondent who admittedly had been paying rent to the plaintiff even after the death of the earlier Mahant in respect of one room. The defendant-respondent after commencement of the lease in respect of a room encroached upon the verandah and passage meant for common use in front of the said one room let out to the defendant by keeping his luggage for which the defendants were served with notices dated 28.8.85 and 3.9.86 and despite service of such notices the respondents failed to clear the encroachment by removing the house-hold articles lying in the verandah and the passage or reply to either of these notices. Having thus failed to get the verandah and passage cleared by the efendants/respondents, plaintiff filed a suit for perpetual and mandatory injunction. The defendant filed his written statement talking therein a preliminary objection that the suit is not maintainable in its present form, apart from other objections relating to locus standi of the appellant to file the suit, valuation for the purposes of court fee and jurisdiction and that the defendant had become the owner of the premises in dispute by adverse possession.

(5) One of the pleas which appears to have weighed maximum with the trial court appears to be the defendant's plea of ownership by adverse possession for a period of more than 12 years. I need not dwell upon other pleas referred to in the trial court judgment which are not necessary for the purpose of the decision of the present appeal. The trial court proceeded to frame only one issue which reads as under:- 1. Whether the suit is not maintainable in its present form?

(6) On no other preliminary objection was any issue framed. For deciding the preliminary issue as above it was the only allegation in the plaint which should have been looked into.

(7) The trial court has placed its reliance on 1979 Rlr (Note 28). That ruling was confined only to ascertain the question of valuation for the purposes of court fee and not the maintainability of the suit wherein it was held:- "COURT Fees Act, Sec.7. For purposes of deciding the question of court fee and the maintainability of a suit only the allegations made in the plaint have to be taken into consideration the plaint has to be read as a whole and it is its substance which is to be guiding factor mere use of expression mandatory injunction in the prayer clause could not always be conclusive against prayer contemplating a decree for possession."

(8) I find that in that case the issue that was under consideration was one of court fee. In the present case, the trial court did not frame any issue on the plea of insufficient court fee or incorrect valuation of the suit. In the absence of an issue, he could not have proceeded to decide that preliminary objection under another issue relating purely to the maintainability of the suit as framed. Another serious error into which the trial court has fallen is when it returned to the following findings: "PLAINTIFF failed to mention in the plaint as to when the .defendant encroached upon the verandah and (he passage for the first time. For want of this explanation the plea of the defendant appears to be true that they are in possession of the verandah and the passage for the. last more than 12 years and they are claiming adverse possession over the property in dispute. The defendant has not kept the house-hold articles or blocked the door-way for a temporary purpose, but they are claiming the averse possession on the basis of their wrong (long) user and in such circumstances proper remedy with the plaintiff was to file a suit for possession."

(9) It is well settled law that when pica of adverse possession is set up as a defense, it is for the party who sets up such a plea to establish that his position is open and hostile to that of the owner and the onus in such cases is quit heavy and should be properly discharged by the party setting up such a plea. No deductive logic should be applied by the courts in such a light heartedly fashion as the trial court has done simply because the date of encroachment is not mentioned that by itself docs not amount to proof of the plea of adverse possession set up by the opposite party and the trial court has returned a totally perverse finding on this question. This could not have been done in the absence of evidence. The burden of adverse possession cannot be accepted by any court except on consideration of evidence led before it and it is obligatory for the party taking up a plea of adverse possession to prove and establish their right to the same. A reference in this connection may be made to .

(10) In this view of the matter the first point of law is answered in favor of the appellant.

(11) Coming to the second point, I find that an appeal was preferred from the trial court's order and the first appellate court had also fallen into error in reaching the conclusion "that the plaintiffs-appellants' own admitted case stands that the verandah and passage have been in the occupation and exclusive possession of the defendants at least prior to the period the alleged notices were got served on the defendants."

(12) I have perused the plaint before the trial court but have not come across any allegation conceding that the defendant-respondent is in an exclusive possession of the passage and the verandah in question. Apart from this factual error committed by the first appellate court, he has also fallen into error, firstly looking to the please in the written statement for deciding the question of maintainability of the suit and has further committed an error of law in holding. "For a relief of injunction restraining some one not to do a particular act, it was a must for the plaintiff-appellant to have established even on factual basis that there was some apprehension of the commission of an act by the defendants against which he wanted to seek an order restraining them not to commit that apprehended act Here, the said apprehension never arose because the respondents-defendants were admittedly in possession of the disputed portion since long and, in a way and at best, it could be said on behalf of the appellant-plaintiff that the defendant's had unauthorisedly and illegally trespassed into a portion belonging to the appellant-plaintiff. Under these circumstances, the suit for perpetual injunction or mandatory injunction really does not lie."

(13) Therefore, the very premises whereon the first appellate court has based its reasons for declining the relief are erroneous as per the allegations in the plaint. It is only the encroachment of dumping household goods in the verandah and the passage which were required to be cleared and a mandatory injunction was sought for that. Both the courts have failed to appreciate this aspect and have proceeded on the plea that the said passage and verandah "had already fallen into possession of an adversary long back" which plea is not deduced from the averments in the plaint. For that reason, even the second point of law is answered in favor of the appellant. It is held that the court below was not correct in construing the law of injunction as being confined to the grant of the relief of mandatory injunction only when an act is apprehended and not when an act has already been committed.

(14) In the light of the above discussion, the judgments of both the courts below are ser aside and the case is remanded back to the trial court for trial after framing of issues based on the pleas raised by the parties. In the circumstances of the case, the parties are left to bear their own costs.Records be sent back forthwith.