Manmohan Service Station vs Mohd. Haroon Japanwala And Ors.
1994 Latest Caselaw 347 Del

JUDGMENT

Mohd. Shamim, J.

(1) This is an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure for issue of an ad interim injunction restraining the defendants, their servants and agen's from selling, transferring, allenating, encumbering or in any manner parting with possession of the super structure and the land adjoining thereto forming part of the property bearing No. 6. Sham Nath Marg, Alipur Road, Delhi, till the final disposal of the suit.

(2) The case of the. petitioner as reflected through the pages of the plaint and the application under disposal is as under: 'hat the plaintiff herein is a tenant in respect of two separate portions i.e. quarter? Nos. 44 and 45 and a plot of land measuring 300 sq. yards with a tin shed in 'he property bearing No. 6, Sham Nath Marg, Alipur Road, Delhi, at a monthly rent of Rs. 250.00 w.e.f. April 1, 1973. Earlier thereto the rate of rent of the above tenanted accommodation was Rs. 12112 Annas per mensem. The plaintiff has been in occupation over the said property or the las? about 45 years. The tenanted portions which are in occupation of the plaintiff have been shown by red colour in the site plan annexed with the plaint. Besides the above portion, the plaintiff is also in occupation of various other portions of the said property whereof the plaintiff has become owner by adverse possession. The possession of the plaintiff over the said portion has been open, hostile and exclusive, without any interference and interruption or challenge from any quarter, whatsoever, including by the defendants who have been visiting the said premise from time to time. The said portions have been shown by blue colour in the site plan annexed with the plaint. The defendants have now been trying to sell, transfer, alienate and part with possession over the said property in favor of certain un-known persons in suppression of the exclusive rights of the plaintiff over the said land. The plaintiff has been running a work-shop in the open area over the above said plot of land which is being used for repair of the cars and for denting and painting. The defendants have now been trying to forcibly dispossess the plaintiff from the tenanted accommodation as well as from the areas which are otherwise in his occupation by adverse possession. In fact, Shri Ajay Gupta Along with certain other persons tried to dispossess the plaintiff from the areas in his occupation. However, they could not succeed in their designs on October 18, 1991 and November 13, 1991. The plaintiff has expended a lot of money over the said portions, in his occupation, inasmuch as he got constructed a shed and installed machines. He also erected boundary walls over the areas shown by blue colour by putting poles and wire mesh during 1956-57. Shri Ajay Gupta, one of defendants, came to the disputed property Along with five and six persons. They removed the wire fencing put up by the plaintiff and which has been there for the last about 40 years. The plaintiff was using the said place for storing materials, motor parts and chassis of the new vehicles. The removal of the said fencing caused irreparable loss and damage to the plaintiff. Later on the matter was reported to the police and it was got amicably settled on the intervention of the police. Since the plaintiff has become owner by adverse possession of the portion shown by blue colour, nobody has got any right, tile or interest in the said portion of he land. Hence, they have go no right to transfer, sell and alienate the said portions. Thus arose the necessity for the institution of the present suit and for the presentation of the present application. The application is supported by an affidavit.

(3) The defendant No. 1 opposes the above application, inter alia, on the following grounds : that the plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure inasmuch as it does not disclose a cause of action. The suit is undervalued and the court fee paid is insufficient. The plaintiff has raised pleas which are contradictory to or inconsistent with one another and are mutually destructive. The plaintiff has got no right to restrain the defendant from alienating, selling or parting with possession over the whole or any part of the property owned by the defendant The defendant No. 1 entered into an agreement to sell the entire property bearing No. 6, Sham Nath Marg, Alipur Road. Delhi, to one Shri Ajay Gupta and 21 others for a consideration of Rs. 1,80,00,000 and received a sum of Rs. 75 lacs by a bank draft from the proposed purchasers. The application for grant of permission under Section 7(i) of the Income-tax Act is pending decision with the income-tax Department. The sale deed would be executed as soon as the permission is granted to do so. The present suit has been instituted with a view to harassing the defendant and to forestall the execution of the sale deed in favor of Shri Ajay Gupta and to compel the defendant No. 1 to sell the property to the plaintiff. The second object of the plaintiff by the institution of the present suit is to get a seal of the Court on his unauthorised actions and to convert his illegal user of the open area into legal one. The reply is supported by an affidavit.

(4) Shri Gian Chad Gupta, on the other hand, has resisted the claim of the plaintiff en the following grounds : that the plea of adverse possession cannot form the basis for the institution of a suit for declaration. A tenant cannot be permitted to put forward the plea of adverse possession. The plaint is. thus liable to be rejected. The plaintiff has raised pleas which are self-contradictory and mutually destructive. The plaintiff after having obtained an ex parte order dated October 24, 1991 completely blocked the common passages and other areas which were, prior thereto, being used by the tenants of the property in question. The plaintiff has also erected another tin shed after having obtained the interim carders. The claim of the plaintiff with regard to the adverse possession is false, baseless and misconceived. The fact is that defendant No. 1 entered into an agreement to sell dated October 8, 1991 with the defendants Nos. 3 to 24 to sell the above said property for a consideration of Rs. 1,80,00,000. The above said proposed purchasers applied to the Income-tax Department for permission to sell. The appropriate authority refused to grant the permission to purchase the property. Later on, on February 17, 1993. the suit property was put to auction by the Central Government. It was during the said auction that the impugned property has been purchased by defendant No. 13 Along with others. An owner cannot be restrained under any law from dealing with his own property, in any manner, whatsoever. He has got a fundamental right to hold and dispose of his property. The plaintiff has no case, much less a prima facie case, in his favor. The balance of convenience is also in favor of the defendants. No damage. much less irreparable damage, would be caused to the plaintiff by the refusal of the injunction. The application is false and frivolous. It is liable to be dismissed. An affidavit has been filed in support, of the aforesaid reply.

(5) Learned counsel for defendant No. 1 amd for defendants Nos. 3 to 24 i.e. Bawa Shiv Charan Singh and Mr. P. N. Lekhi, Senior Advocates, have raised a preliminary objection with regard to the maintainability of the present suit. According to them, if the suit is not maintainable then the present application under disposal cannot be sustained even for a minute by any stretch of imagination and is liable to be flung to the winds. The contention of the learned counsel is that the plaintiff in the instant case is seeking a declaration that he has become owner by adverse, possession in respect of the portions shown by blue colour in teh plan annexed with the plaint. The plea of adverse possession, the learned counsel, contend, cannot serve as a tool in the hands of party to enable him to bring forward a suit. It thus cannot form the basis of a cause of action. It is not a weapon of attact, though it can be used to repel one. Thus, it is a shield, not a Sword. The learned counsel in support of their arguments have led me through Art. 65 of the Limitation Act and the Report of the Third Law Commission which aer in the following words :- "65..Description of suit. For possession of unmovable property or any interest therein based on title. Period of limitation : Twelve years. Time from which period begins to run. When the possession, of the defendant becomes adverse to the plaintiff." Report of the Third Law Commission If the defendant wants to defeat, the. right of the plaintiff he must establish his adverse possession for over 12 years, which has the effect, of: extinguishing the title of the owner, by the operation of s. 28 of the Limitation Act read with Art. 144. If he fails to do so there is no reason for non suiting the plaintiff, merely because hewas. not able to prove possession within: 12 years. In our opinion Art. 142. must be restricted only to suits' based on possessory, title, and the owner of the property should not lose his right to, it unless the defendant in possession is able to establish adverse possession".

The learned counsel while animadverting on the provisions of Art. 65, alluded to above, have argued that it is couched in such a language which leave us in no doubt, that the plea. of adverse possession is to be used by way of defense only. The learned counsel it is manifest from above haver, sought assistance of Art. 65 in order to substantiate their point. The said Article deals with period of limitation in case a suit is brought forward on the ground of title. Thus, the defendants in order to defeat the right of the plaintiff must prove that he has been in possession over the disputed property for more than twelve years.

(6) To the same effect is the recommendation of the Law Commission. To my mind, here in the instant case, we are not dealing with a suit which is based on title. The present suit has been brought forward on the basis of adverse possession. Thus, Art. 65 would not, be applicable to the present case. Hence, the provisions of the said Article and the recommendations of the Law Commission in connection with the said provisions of law are of no help and use to the learned counsel for the defendants.

(7) The learned counsel in support of their argument have failed to show me any authority or judgment on the said point. In fact, the learned counsel for the defendants have conceded with commendable fairness on their part that there is no such authority or specific law.

(8) In the above circumstances the question which is precariously perched on the tip of the tongue is as to whether a person who claims ownership to an immovable property by adverse possession can maintain a suit or not, or he is bereft of any remedy under the law ? My answer to the above query is that whenever a law creates a right, it also provides a machinery for the enforcement of the said right. It is inconceivable to think of a right in the absence of a remedy in case of its infringment. In fact, the right and the machinery for its enforcement are twin sisters. They go hand in hand and we cannot visualise the one in the absence of the other. A person who has been in possession over an immovable property for more than twelve years continuously, openly, without any interruption and interference from the owner, though the factum of adverse possession is in his knowledge, and who denies the title of the owner, would be deemed to have become owner by adverse possession under the law. Thus. the law confers ownership on such a person. Hence, ergo it follows as a corollary thereof that there must be some machinery for the enforcement of the said right which has accrued to a person by adverse possession. In order to substantiate my point that such a person is not bereft of remedies, I would like to advert to Art. 64 of the Limitation Act which envisages a suit for recovery of possession of immovable property based on previous possession. It would not be out of place to cite in extensor the provisions of Art. 64 of the Limitation Act. it is in the following words :- "64.Description of suit For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Period of limitation '. Twelve years. Time from which period begins to run : The date of dispossession".

Similarly, Section 6 of the Specific Relief Act provides suit by person dispossessed of immovable property. It lays down as under :-    "6.Suit by person dispossessed of immovable property :- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person, claiming through him may, by suit, recover possession thereof, notwithstanding any other the that may be set up in such suit. (2)............ (3)............ (4) ............"  

(9) Assuming argue do that the plea of adverse possession can be raised by way of defense only, even then there might be circumstances in which a plaintiff has to bring forward a suit by way of defense to his right to claim possession over a particular property when has right to possession is invaded by the owner or by a stranger. In that. eventuality the person who so institutes the suit would be a plaintiff, but the suit would be by way of defense in order to safeguard his rights and interest in the said property.   

(10) In view of my discussion above, I am of the view that the present suit is maintainable.   

(11) I am also supported in my above view by the observations of a Single Judge of the Kerala. High Court in Karthiyayani Amma v. Govindan . " A person in possession of immovable property can sustain a suit for injunction against the rightful owner preventing him from disturbing his possession. . . . . .".   

(12) It has nex been urged by the learned counsel for the defendants that admittedly the plaintiff claims himself to be a tenant in the portions of the deputed property shown by red colour in the plan annexed with the plaint. Thus. according to well-settled principle of law he cannot claim to be owner by adverse possession o" the tenanted accommodation. Section 116 of the Evidence Act is a complete bar to such a plea. The learned counsel for the plaint' ff, on the other hand, has urged to the contrary..   

(13) The plaintiff herein is not denying the title of the defendants in respect of those portions which-form part of the tenanted accommodation and which have been shown in red colour in the plan annexed with the plaint. However, he is 'asserting 'his ownership by adverse possession over portions other than the portions which form a part of his tenanted accommodation and which have been shown in blue colour in the plan annexed with the plain. Hence, the provisions of Section 116 of the Evidence Act which arc in the following words are of no avail to the defendants :-    "116.Estoppel of tenant and.licensee of person in possession. -No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that 'he landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time when such license was given".  

(14) There is yet another aspect of the matter. Even if the contention of the leanaed, counsel for the defendants is accepted that the plaintiff has encroached upon certain portions belonging to the defendants and which do not from part of his tenanted accomodation even in that eventuality he cannot be evicted otherwise than in due course of law because in that case they would be deemed to have become a part of his tenanted accommodation. 'To .the same effect are .the observations as reported in Subodh Gopal Bose v. Oil Storage & Distributing Co. of India Ltd., (AIR 1957 'Calcutta 67C2), Head Note B)....". When a tenant encroaches on land outside his tenancy but belonging to his landlord he cannot acquire absolute title thereto by the adverse possession but obtains -only the right of tenancy under his landlord..."

(15) The next point raised by the learned, counsel, for and on behalf of the - defendants is that the plaintiff in the instant case has raised pleas which are contradictory to. and inconsistent with each other and thus are mutually destructive. Hence, the suit is liable to be dismissed on this short ground alone. I am sorry, I am. unable to agree with the contention of the learned counsel. It is a well-settled principle of law that the parties are free to take alternative even contradictory pleas unless there is a statutory bar to do so. The plaintiff in teh present case has claimed certain areas as part of the tenanted accomodation whereas the other areas are.being claimed by way of adverse possession. The two pleas are neither contradictory to nor inconsistent with each other and as such, can mutually co-exist. To the same effect are the observation of a Single Judge of this Court as reported in Om Prakash dikshit v. Rajender Kr. Khandelwal, 43 (1992) 'DLT 244. (3).". ...It is when settled that even parties can take contradictory pleas, unless there is a statutory bar. such as that of limitation or any other similar valuable right has accrued to the opposite party. This is not the case here. ...".

(16) The next point raised for .and on .behalf of the defendants is that the. plaintiff has neither given the exact date on which he occupied the portions regarding which he claims to be in adverse possession nor has he given the exact measurements of the, said areas. Thus the application.for the .grant of injunction is.liable to be dismissed on this ground alone. The contention of the learned counsel, I feel, does not hold any water. The case of the plaintiff as set out in his plaint as well as in his application is that has been in possession over the portions shown by blue colour in the plan annexed, with the plaint fo the last 45 years. The plaintiff has very categorically stated in his plaint that he has been in occupation over the said portions for the last 45 years continuously, openly, without any interruption and interference from any quarter, whatsoever [Vide paras and 7(a) of the plaint] Besides so saying in his plaint, the plaintiff has also.filed a site plan and shown the said portions by blue colour in the said plan. The defendants, on the other band, have not filed any plan to show to the contrary. They have simply contented themselves by denying that the plaintiff is in adverse possession over the said portions. This Court, at present, is simply dealing with injunction matter. "The case is not being disposed of on merits. The points which.are being raised by the defendants can be adjudicated upon at the time when the suit is decided on merits.

(17) The learned counsel for the defendants have then argued that there is no evidence, even prima facie, to show that the plaintiff is in occupation over the portions shown in blue colour in the plan annexed with 'the plaint. The-plaintiff is, admittedly, a mechanic who is running a workshop and on certain and on certain portions of the disputed property the cars are parked with a view to being repaired. Such type of possession cannot be said to have matured into an adverse possession. It lacks the necessary ingredients which go to ripen a possession into an adverse possession. The contention of the learned counsel, I feel is devoid of any merit. The learned counsel for the plaintiff has urged to the contrary.

(18) The learned predecessor of this Court vide order dated October 24, 1991 'passed en whereby the directed by the directed the parties to maintain the status quo with regard to the property in dispute. A Commissioner on the said date was appointed by the Court. He was directed to visit the disputed property on the said date and to report with regard to the factum of possession. His report is on the file of this Court. He found that the plaintiff was in possession over the portions shown by blue colour in the plan annexed with the plaint. He also took the photographs and the same are on the record of this Court. The said photographs prima facie show that the plaintiff is in possession over the portions shown by blue colour in the plan annexed with the plaint. Learned counsel for the defendants have argued with great zeal and fervour that the report of the local commissioner is not. even worth the paper on which it has been recorded and it cannot be taken into consideration inasmuch as the same is an ex parte report. The Commissioner visited the site in the absence of the defendants and no notice and intimation was given to them. It is true. However, the question is whether the said report is liable to be ignored and cannot be considered even at this stage ? I have already observed above, that at the present time I am not disposing of the case on merits. I am simply concerned at this stage with the question as to whether the plaintiff has established a prima facie case in his favor for the giant of an injunction ? Thus, the said report, I feel, can be made use of to find out as to whether the plaintiff was found in posssession on the date the Court ordered the execution of the commmission. I think that to this extent the said report can be made use of at this stage. The above view was given vent to by a Division Bench of the Andhra Pradesh High Court in Mahant Narayana Dossjee Varu v. The Board of Trustees, the Tirumalai Tirupati Devasthnamas, Tirupathi, ,". . . -But the fact that some of the conclusions of the Commissioner were based on no evidence or that he relied upon enquiries made by him behind the back of the parties, would not deprive the entire report of it's evidentiary value. The Court may rely upon such part of the report which is not based upon such irrelevant material and also en other evidence to sustain the conclusions of the Commissioner".

(19) The next limb of the arguments advanced for and on behalf of the defendants is that the. suit is under valued and the court fee paid is insufficient. According to the learned counsel, the plaintiff is seeking the cancellation of the agreement dated October 8. 1991. The value of the property mentioned therein is Rs. 1,80,00,000. Hence the plaintiff is under an obligation to pay ad' valorem court fee. Thus, the suit is under-valued and the court fee paid is insufficient. Learned counsel for the plaintiff, on the other hand, has contended that the plaintiff is not challenging the agreement to sell in its entirety and is praying for its cancellation to the extent or the areas which are in possession of the plaintiff (vide statement of the learned counsel dated May 9, 1994). Thus, to my mind, the said point as to what is the value of the areas which are inoccupation of the plaintiff cannot be adjudicated upon. unless the parties have led their evidence in full. Admittedly, there is no evidence before 'his Court in regard thereto. Thus, this Court cannot go into this question at this stage and the said point would be decided at a proper stage.

(20) I be plaintiff it is abundantly clear from above, has claimed possession over the portions shown by red colour in the plan annexed with the plaint as a tenant. The learned counsel for the defendants have conceded that the plaintiff cannot be evicted from the said portions except through due process of law" and they are not going to evict him from the said areas. In view of the above, I need not expatiate on this point any further.

(21) The plaintiff has further sought an injunction restraining the defendants from dispossessing him from the areas which are alleged to be in his occupation by adverse possession shown by blue colour in the plan annexed with the plaint. "There is a report of the local commissioner on this point that the plaintiff is prima facie in occupation over the said areas and he has been running his workshop for repair of the motor vehicles and is using the other open areas shown by blue colour for denting and painting and for repairing of the cars. The plaintiff has stated in this plaint that he expended a lot of money on the improvement of the said areas. He got constructed a shed and installed machines. He had also raised a boundary wall and thereby covered the portions shown by blue colour in the plan. He put up poles and wire mesh over there in the year 1956-57. He has further stated that efforts were made to dispossess him from the said portions on October 18, 1991 and November 13, 1991 by Shri Ajay Gupta. Shri Ajay Gupta removed the fencing on October .18, 1991 on the occasion of Dusshera [Vide paras 7(h), 8 and 9 of the plaint]. The defendants in the corresponding para 7(h) of the written statement have not denied the factum of the wire mesh. Rather, they have admitted its existence. They have simply stated in the said para "As already stated above, the said wire mesh has been put up by the plaintiff in I in the common passage behind the. main kothi and the same was put up by the the plaintiff after having obtained the interim orders from this Hon'ble Court". The defendants have further admitted (vide para 10 of their preliminary objections) that the plaintiff after having obtained the order dated October 24, 1991 completely blocked the common passage and other areas which prior to the said order were being used by the tenants of the property in question. The plaintiff completely blocked the main passage behind the main kothi and also started throwing waste materials over the entire vacant portion near its service station and also blocked the common passage leading to the service station by parking its cars and junk on the same Further, after passing of the ex-parte orders, the plaintiff erected another tin shed in front of the tenanted premises i.e. quarters nos. 44 and 45".

(22) It is manifest from above that the defendants have themselves admitted the factum of possession of the plaintiff over certain areas other than the tenanted accomodation. They have also admitted that the plaintiff has erected another tin shed in front of his tenanted accomodation i.e. quarters Nos. 44 and 45, though, according to them. it was done by him .after obtaining the injunction order. We need not go info that: controversy at this stage as the said question is to be gone into at the time of final adjudication of the prevent suit. It is manifest from above, that the plaintiff is in occupation over the portions shown by red colour in the plan annexed with the plaint. Ho has also prima facie shown that he is in occupation' over the portions shown by blue colour in the plan annexed with the plaint If it is so, it is a well recognised principle of taw that even a trespasser is entitled to remain in possession ever a property unless he is dispossessed by the owner in accordance with law.

(23) To the same effect are. the. observations as reported in Babu Lal v. D.D.A.. . Thus, in caw the injection order is not granted in. favor of the plaintiff he would, be dispossessed from the said areas. Thus, the prima facie case is in favor of the plaintiff, In case an injection is not granted he would suffer irreparable loss and damage, and monetary compensation would not afford adequate relief for him.

(24) In any case, the plaintiff by the institution of the present suit. has raised certain questions which are to be gone into and investigated. It would be premature to adjudicate upon the lights of the parties at this stags. Hence, it would be in the fitness of things to direct the parties to maintain the status quo till the final adjudication of the present; suit.

(25) In the circumstances stated above, the application, is allowed. The parties are directed to maintain, status quo with regard to the portions shown by red colour and blue colour in the plan annexed with the plaint. The order dated October 24. 1991 is hereby made absolute.

(26) The application stands disposed of' accordingly.