A single judge dismissed a writ petition challenging the trial court's rejection of an application to exclude a counter-claim. The court held that since the main suit was for possession of disputed property, a counter-claim regarding ownership via adverse possession was maintainable to avoid multiplicity of suits.
Writ petition dismissed with no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: O R D E R :
S.B. CIVIL WRIT PETITION NO.11606/2012
(Bhanwar Lal Vs. Chaganlal & Anr.)
Date of Order
04th February, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Alkesh Agarwal, for the petitioner. Mr. Anil Vyas, for the respondents.
BY THE COURT:
This writ petition has been filed by the plaintiff aggrieved by the order dated 20.09.2012 passed by the learned trial court, whereby, his application under Order VIII, Rule 6C CPC for exclusion of counter claim filed by the defendant has been rejected.
The facts in brief are that the petitioner filed a suit on 01.11.2001 for possession of a shop situated at village Sindhari, Barmer and arrears of rent against the respondent inter alia with the averments that the shop was let out at a monthly rent of Rs.200/- in the month of January, 1986. It was further alleged in the plaint that the defendant agreed to purchase the suit shop for a sum of Rs.51,000/- on 24.02.1996 and agreed to pay the consideration within a period of three months and also agreed to pay rent @ Rs.500/- per month for the period of three months.
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Neither the rent was paid nor the amount of consideration was paid. It was then alleged that on 26.04.1996 the defendant called plaintiff and stated that he could not arrange for the amount of consideration and that he would pay him Rs.60,000/within a period of 30 months and, till such time the payment was made, he would pay him Rs.500/- as rent. A memorandum (hand note) in this regard was executed by the respondent. The respondent has not paid rent for last three years and, therefore, the plaintiff was entitled to claim the arrears of rent and obtain the vacant possession of the shop in question. It is claimed that by notice dated 05.10.2001 the arrears of rent were demanded and the tenancy of the respondent was terminated. Despite notice, neither the possession has been handed over nor the arrears of rent has been paid, no reply to the notice has been given. It was also averred in the plaint that as the defendant has not paid the consideration of Rs.60,000/-, therefore, now he is not entitled to get the sale deed executed i.e. the right to get sale deed executed has come to an end. It was also alleged that the defendant started raising construction on the first floor, for which, the plaintiff gave telegram to stop the same. However, the illegal construction has not been removed. Importantly it was claimed in the plaint that defendant No.2 has been impleaded party as the disputed shop has been purchased by the plaintiff from defendant No.2 in the year 1984 and thereafter he has raised construction and has let it out to the respondent. The sale could not be executed, but as the respondent has taken
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possession of the suit property as tenant, therefore, the plaintiff has the right to file the suit. Ultimately, it was prayed that the possession of the shop be handed over to the plaintiff, decree for arrears of rent be passed and further Rs.500/- per month be awarded for use and occupation till the possession of the shop is handed over to the plaintiff. The construction raised by the defendant be ordered to be removed by passing mandatory injunction.
The respondent No.1 Chagan Lal filed his written statement and disputed the averments made in the plaint. It was claimed that in fact the disputed land in question was purchased by him in the year 1985 and he got the shop constructed and started business in the said shop. It was claimed that it was agreed between the parties that a sum of Rs.10,000/- would be paid at the time of registration of the sale, in the meanwhile, Gram Panchayat, Sindhari gave notice claiming the land to be of its ownership and, as such, the sale could not be registered. The allegations about agreeing to pay rent or letting out the shop to the defendant No.1 were denied. Ultimately, it was prayed that the suit being false, frivolous and fictitious be dismissed.
Alongwith the written statement, the respondent No.1 also filed a counter claim, wherein, on the basis of the facts alleged in the said counter claim, it was claimed that the defendant No.1, in the knowledge of the plaintiff, was in continuous possession of the shop since April, 1985 and, as such, on the basis of principle of adverse possession, he has become owner of the disputed plot
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of land with shop and was entitled for such a declaration. The respondent No.1 also paid court fees for seeking such declaration.
On filing of the said written statement alongwith counter claim, the petitioner filed application under Oder VIII, Rule 6C CPC. In the said application petitioner made reference to the proceedings under Section 145 Cr.P.C., statement in a criminal case and compromise executed by the defendant, wherein, it was admitted by the defendant that the shop was on rent with him. It was claimed that the defendant by taking plea of sale and specific performance of the contract just want to drag the litigation and without prejudice to the said submission, the above objection has become time barred. It was also claimed that the counter claim is maintainable only in a case of money suit. Ultimately, it was prayed that the counter claim be excluded.
The said application was opposed by the respondent No.1 and it was prayed that the application be rejected.
The learned trial court after hearing the parties came to the conclusion that the subject matter of the plaint was the same while one party was claiming itself to be landlord and owner, the other side is seeking declaration about its ownership and, therefore, in the interest of justice, for avoiding multiplicity of suit the counter claim was allowed.
I have heard learned counsel for the parties and perused the material placed on record.
It was submitted by learned counsel for the petitioner that
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the counter claim filed by the respondent No.1 was liable to be excluded as a suit for eviction cannot be converted into a title suit. It was further submitted that the application has been rejected on the ground that the Court found that filing of the counter claim was 'in the interest of justice' merely because subject matter is same, such a counter claim cannot be permitted.
On the other hand, the counsel for the respondent submitted that the counter claim is well within the settled parameters and the same is maintainable and the order impugned passed by the learned trial court does not call for any interference.
I have considered the rival submissions made at the Bar.
From the detailed averments of the plaint quoted hereinbefore, it is clear that though the plaintiff has made averments claiming the respondent No.1 to be his tenant, but the entire frame of the suit essentially remains a suit for possession only, inasmuch as, the plaintiff has made averments about agreement to sale said to have been executed by the defendant No.1, the fact about right of defendant No.1 to get the sale deed executed having come to an end, mandatory injunction for demolition of the construction raised by the respondent No.1, the fact that sale deed could not be executed by respondent No.2 in favour of the plaintiff. None of the averments or allegations regarding a suit for eviction based on relationship of landlord and tenant has been alleged. Therefore, in these
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circumstances, where a suit filed by the petitioner essentially remains a suit for possession of the disputed premises, it is open for the respondent No.1 to plead counter claim regarding his ownership based on adverse possession and, therefore, it cannot be said that the claim raised by the defendant No.1 ought not to be disposed of by way of counter claim, but the same should be decided by an independent suit. Therefore, the order impugned does not call for any interference.
The fact that the respondent has been held to be entitled to raise counter claim regarding adverse possession should not mean any finding regarding its maintainability on merits or otherwise. The same will have to be tried after framing of issues, if the plaintiff chooses to file reply to the said counter claim and after leading evidence on the said issues.
In view of the above discussion, the writ petition filed by the petitioner is without any substance and the same is, therefore, dismissed. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
2 issues framed by the court
Whether a counter-claim seeking a declaration of ownership based on adverse possession can be maintained in a suit primarily for possession.
Whether the rejection of the application to exclude the counter-claim under Order VIII Rule 6C CPC calls for interference in this writ petition.
1 provisions across 1 enactments
Bhanwar Lal
Chaganlal & Anr.
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
