Madhya Pradesh High Court
Akhilesh Kumar Alias Hansu vs Shri Saradchandra Bhate on 19 December, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 19 th OF DECEMBER, 2022
MISC. PETITION No. 6181 of 2022
BETWEEN:-
1. AKHILESH KUMAR ALIAS HANSU S/O LATE
VISHWANATH JI, AGED ABOUT 57 YEARS,
RAMGANJ WARD KHADWA DISTRICT KHANDWA
(MADHYA PRADESH)
2. SANJAY KUMAR S/O LATE VISHWANATH JI, AGED
ABOUT 54 YEARS, OCCUPATION: CAST BRAMHAN
SELF EMPLOYED R/O RAMGANJ WARD KHADWA
DISTRICT KHANDWA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. SHRI SARADCHANDRA BHATE S/O SHRI
VISWANATH JI BHATE, AGED ABOUT 65 YEARS,
BEHIND DR. SUBHASH JAIN JAWAHARGANJH
KHANDWA TEHSIL AND DISTRICT KHANDWA
(MADHYA PRADESH)
2. SMT. MADHURI W/O LATE PRAMOD JI SHARMA,
AGED ABOUT 62 YEARS, R/O VISHRANT WADI
MOHAN BHATI NEAR SETHIA HOSPITAL DS PARK
FLAT NUMBER 2 PUNE (MAHARASTRA)
(MAHARASHTRA)
.....RESPONDENTS
(NONE)
This petition coming on for admission this day, th e court passed the
following:
Signature Not Verified
SAN
ORDER
Digitally signed by ASHWANI PRAJAPATI
This Miscellaneous Petition under Article 227 of the Constitution of India
Date: 2022.12.21 18:38:42 IST
is filed by the petitioners/plaintiffs being aggrieved of order Annexure P/1 dated
28.10.2022 passed in Regular Civil Suit No.118A/2021 by learned V Civil Judge
(Junior Division) Khandwa rejecting an application under Order XIV Rule 5 of
the Code of Civil Procedure, 1908 refusing to amend issues as were framed by
the Trial Court earlier.
2. Brief facts leading to the present Miscellaneous Petition are that the
petitioners/plaintiffs filed a suit seeking declaration of title in respect of the
property detailed in Schedule A,B,C to the plaint on the basis of a Will.
Through amendment, the petitioners/plaintiffs provided the details of till
treatment received by the parents of the petitioners/plaintiffs at the hands of the
respondent/defendant No.1 and his wife, who happens to be the real brother
and sister-in-law of the petitioners/plaintiffs. After the amendment was
incorporated, now an additional issue on the plea of ouster is sought to be
raised on the ground that as an alternative, the plea of ouster is maintainable and
should be allowed to be taken by the petitioners/plaintiffs.
3. Reliance is placed on the judgment in B.R. Patil Vs. Tulsa Y. Sawarkar
and others [2022 Live Law (SC) 165], wherein dealing with the aspect of
ouster, it is held that three elements are necessary for establishing the plea of
ouster in the case of co-owner (i) declaration of hostile animus, (ii) long and
uninterrupted possession of the person pleading ouster, and (iii) exercise of
right of exclusive ownership openly and to the knowledge of other co-owner.
4. In fact, this aspect of alternative or inconsistent pleadings is dealt with by
Supreme Court in G. Nagamma and another Vs. Siromanamma and
another [(1996)2 SCC 25].
Signature Not Verified
SAN
5. The expression 'Alternative' means the one or the other of two things. A
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.21 18:38:42 IST
party to litigation may include in his pleadings two or more set of facts and
claim relief in the alternative. "Inconsistent" on the other hand means mutually
repugnant, contradictory or irreconcilable establishment of one necessarily
implies abrogation or abandonment of other. The plaintiff may rely upon
several different reliefs in the alternative. Similarly, the defendant can also raise
several defences in the alternative. In instance for a suit for possession is
maintainable on the basis of title or in the alternative on the basis of lease.
6. In case of C. Mohammed Vs. Ananthachari (AIR 1988 Kerala 298), it
is held that "it may be permissible in the plaint to advance an inconsistent plea
of ownership and easement alternatively, but it is necessary that the plaintiff
should press one of them only either at the stage of evidence or a subsequent
stage. When the dominant and survient tenement are in the ownership and
possession of the same person acts done by him on survient tenement are
clearly referable to his possession of that tenement and hence, there cannot be
any easement by prohibition.
7. In case of Praful Manohar Rele Vs. Krishanabai Narayan Ghosalkar
and others [(2014) 11 SCC 316], Apex Court held that "4.4 super added to all
these factors is the fact that the appellate Court had granted relief to the
appellant not in relation to the alternative plea raised by him, but on the principal
case set up by the plaintiff. If plaintiff succeeded on the principal case set up
by him whether or not the alternative plea was contradictory or inconsistent or
even destructive of the original plea paled into insignificant." Thus, it is evident
that trial Court erred in not allowing framing of an issue on the basis of
alternative plea of ouster overlooking the fact that parties can plead inconsistent
or alternative plea, but not to the extent of mutual destructive to each other.
Signature Not Verified
SAN
8. Thus, petition deserves to be allowed and is allowed. Impugned order is
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.21 18:38:42 IST
set aside. Matter is remitted to the trial Court to frame the additional issue on
the plea of ouster and proceed with the trial.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.21 18:38:42 IST
