Partly allowed

Lokesh Goyal v. Smt Poonam Devi and Ors.

Rajasthan HC5 Mar 2018CW/22534/2017

Case brief

AI extract

What is this about?

Within a civil writ petition, the Rajasthan High Court held that adverse possession can only be a defensive shield and not a basis for suit claims. The court set aside the impugned order that allowed the plaintiff to seek a declaration of ownership based on alleged adverse possession in a suit originally filed only for permanent injunction.

What did the court decide?

The impugned order allowing the plaintiff to seek a declaration based on adverse possession was set aside; other amendments were allowed.

Lokesh Goyal Vs Smt Poonam Devi and Ors. — Property and Title | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No.22534/2017

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Lokesh Goyal S/o Late Shri Ramesh Chand Goyal, By Caste Mahajan, Aged About 54 Years, R/o House No. 513, Munshi Ramdas Ji Ka Rasta, Amer Road, Chokri Gangapole, Jaipur (Raj.)

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----Petitioner

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Versus

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Smt. Poonam Devi W/o Shri Maliram, R/o House No. 584, Munshi Ramdas Ji Ka Rasta, Amer Road, Chokri Gangapole, Jaipur (Raj.)

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Ramesh Chand Goyal S/o Shri Ramswroop Goyal (Died During Pendency Of Suit)

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2/1. Smt. Savitri Devi W/o Late Sh. Ramesh Chand Goyal, R/o House No. 584, Munshi Ramdas Ji Ka Rasta, Amer Road, Chokri Gangapole, Jaipur (Raj.)

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----Respondents

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For Petitioner(s) : Mr.R.K. Daga. For Respondent(s) : Mr.M.F. Baig.

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HON'BLE MR. JUSTICE ALOK SHARMA

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Order

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05/03/2018

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Heard the counsel for the petitioner-defendant (hereinafter ‘defendant’) and the respondent-plaintiff (hereinafter ‘plaintiff’) and perused the impugned order dated 01.11.2017 whereby primarily an amendment in the suit initially filed for permanent injunction at the instance of the plaintiff has been allowed by the trial court and the plaintiff allowed also to claim relief of declaration of this purported ownership of the suit property on the basis of his alleged adverse possession. Other amendments have

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(2 of 2)

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[CW-22534/2017]

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also been allowed by the trial court under impugned order dated 01.11.2017. Those counsel for the defendant does not impugn.

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The Apex Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Anr. [(2014) 1 SCC 669] has held that the plea of adverse possession is not available to a plaintiff in a suit but can only be a matter of defence by a defendant in a suit filed by plaintiff i.e. that it is cannot be a sword but only a shield. Counsel for the respondent has not been able to bring to the court’s notice any authority contrary to the aforesaid enunciation of the Apex Court.

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Besides the impugned order dated 01.11.2017 allows the suit for permanent injunction as initially filed to be transformed into one for declaration. That changes the very nature and character of the suit contrary to the settled law, as rightly submitted by counsel for the defendant.

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The impugned order dated 01.11.2017 is therefor set aside to the extent of allowing the plaintiff to seek a declaration on account of purported adverse possession in the suit first filed only for permanent injunction. However other amendments as allowed by the trial court in its impugned order dated 01.11.2017 shall stand as they have not been seriously challenged in the course of argument by counsel for the defendant.

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The petition stands partly allowed accordingly.

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(ALOK SHARMA),J

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Karan/136

Lokesh Goyal v. Smt Poonam Devi and Ors.

Case brief

What is this about?

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Lokesh Goyal v. Smt Poonam Devi and Ors.

Case brief

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