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TMI Blog2009 (8) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... afiqur Rahaman. The respondents purchased the suit premises from Safiqur Rahaman on 21st July, 1980 by three registered deeds of sale. 4. Indisputably, the respondent No.1 filed a suit being Title Suit No.88 of 1990 in the Court of Munsif, Raghunathpur, District Purulia (West Bengal) inter alia praying for eviction of the appellant from the suit premises and mesne profit claiming themselves to be the owners and landlords thereof. He prior to institution of the suit also served a notice upon the appellant in terms of Section 106 of the Transfer of Property Act asking him to handover peaceful and vacant possession alleging that he had been a tenant therein on a monthly rental of ₹ 45/- under his vendor Safiqur Rahaman. 5. Appellant denied and disputed that he had ever been a tenant of Safiqur Rahaman at any point of time. The relationship between them was, thus, denied and disputed. 6. The learned trial judge having regard to the rival pleadings of the parties framed the following issues: 1) Have the plaintiffs any cause of action to bring this suit? 2) Is the suit maintainable in its present form? 3) Is the suit barred by law of limitation? 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provision of Transfer of Property Act where title of the plaintiffs over the suit property being proved and the relationship of landlord and tenant not proved, in spite of the same, the plaintiffs or proving the landlords title are entitled to get recovery of possession of the suit premises from the defendant as owner thereof and what in fact, happened in the given facts and circumstances, out of which this appeal arose. xxx xxx xxx For the discussion made above and on the existing materials on the case record and when the plaintiffs proved their title and ownership over the suit premises by virtue of Ext. 4 series and on the other hand the defendant as per their written statement failed and neglected to discharge his onus on proving his right or permanency in the suit premises as tenant or otherwise, the plaintiffs suit must succeed and the findings of the learned Munsif in deciding the issue Nos. 6 and 8 particularly the contents of the issue no. 6 are not at all satisfactory and cannot be sustained in law in the given facts and circumstances of the case and as such the irresistible conclusion from the above discussion is that the judgment and decree s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforementioned orders are in question before us. 11. Mr.V. Prabhakar, learned counsel appearing on behalf of the appellant would contend: i. No substantial questions of law having been formulated by the High Court, a jurisdictional error has been committed by it in passing the impugned judgment. ii. The relationship of landlord and tenant and/or the licensor and licensee having not been proved, the High Court as also the First Appellate Court committed a serious error in passing the impugned judgment on the premise that the appellant was a trespasser. 12. Mr. R.K. Gupta, learned counsel appearing on behalf of the respondents, on the other hand, would support the impugned judgment, contending: i. Even in a suit for eviction, the plaintiffs would be entitled to obtain a decree for possession relying on or on the basis of his title. ii. In a suit for eviction, it is for the defendant to show that he has a right to remain on the tenanted premises either as a permanent tenant or otherwise. 13. The plaintiffs served a notice on the defendant under Section 106 of the Transfer of Property Act. Such notice evidently was served on the premise that the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence; as Courts of reference and revision. or in the exercise of its jurisdiction as a Court of reference or revision unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document. For obtaining a decree for recovery of possession, court fees are required to be paid in terms of Section 7(v) of the Court Fees Act, 1870 i.e., according to the value of the subject matter of the suit. 16. We will have to proceed on the basis that whereas the plaintiff proved his title, the defendant could not. The learned trial judge has held that the defendant could not prove the agreement of sale. The High Court formulated the following points in the form of question which are as under: 6. Have the plaintiffs landlord and tenant relationship with the defendant? 7. Have the plaintiffs served valid notice u/s 106 of the T.P. Act. 17. Was, in the aforementioned situation, a suit for recovery of possession maintainable is the question. The landlord in a given case although ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eepak Kumar Verma and Ors. v. Ram Swarup Singh 1992 (1) BLJR 102] A defendant as is well known may raise inconsistent pleas so long they are not mutually destructive. In Gautam Sarup v. Leela Jetly and Ors. [(2008) 7 SCC 85], this Court held: 22. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other. An issue as to whether the defendant was a trespasser or not, thus, was required to be framed. 18. Mr. Gupta, however, would rely upon a decision of this Court in Bhagwati Prasad v. Shri Chandramaul [(1966) 2 SCR 286]. Gajendragadkar, C.J. therein was dealing with the rules of pleadings. It was opined that although the rules of pleadings should be adhered to; when parties go to the trial knowing fully well the points he is required to meet, the Court may not insist o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund v. Dalu I.L.R. 25 All. 498 (Emphasis supplied). The said decision itself is an authority for the proposition that it was necessary to bring on record some evidence that the defendant was a licensee and he could not have raised any other alternative plea. It was followed by a learned Single Judge of the Allahabad High Court in Shri Ram Anr. vs. Smt. Kasturi Devi Anr. [AIR 1984 Allahabad 66], stating: 15. Lastly, it was argued for the appellants that there is no relationship of landlord and tenant as between Smt. Kastoori Devi on the one hand and Sri Ram or Satya Pal. on the other. The trial court was of the view that no such relationship has been made out. This finding was, however, reversed by the lower appellate court and not without cogent basis. Sri Ram admits that one Desh Rai was the tenant in this part of the house who vacated. Sri Ram thereafter came in the said portion of the house. In cross-examination, he adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a suit having regard to the cause of action thereof. The Court, in a given case, mould the relief having regard to the provisions of Order VII Rule 7 of the Code of Civil Procedure, but the said provision cannot be applied in a situation of this nature. 20. We, therefore, are of the opinion that it is not a case where by non framing of an issue as to whether the defendant appellant was a trespasser or not he was not prejudiced. Had such an issue been framed he could have brought on record evidence to establish that he had the requisite animus possidendi, particularly in view of the fact that it has been held by the courts below that he was not put in possession by the predecessor-in-interest of the plaintiffs in terms of an agreement for sale or otherwise. If he has not been able to prove the agreement, he could have taken the other plea, i.e., he has acquired indefeasible title by adverse possession. He is said to have been in possession of the suit premises for more than twelve years prior to the institution of the suit. The question as to whether he acquired title by adverse possession was a plausible plea. He, in fact, raised the same before the appellate court. 21. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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