Civil Suit filed under Order VII Rule 1 of the Code of Civil Procedure, 1908, read with Order IV Rule 1 of the Original Side Rules, praying for judgment and decree in favour of the plaintiff and against the defendants as under:
(a) For a declaration declaring that G. Ramakrishnan, S/o. Shri.V Govindarajulu, Hindu, aged 76 years, the plaintiff herein, is the sole and absolute owner of the suit property at No. 18/1 and 2, Soodiammanpet, Saidapet, Chennai - 600 015, morefully described in the schedule of the plaint;
(b) To quit, deliver and handover the vacant possession of the suit property at No. 18/1 and 2, Soodiammanpet, Saidapet, Chennai - 600 015 by the defendants herein or their men, agents, subordinates, or anyone acting under them to the plaintiff herein;
(c) For interim injunction restraining the defendants from creating any encumbrance or alienation of any nature;
(d) To direct the defendants to pay mesne profits that may be fixed by this Hon'ble Court at the rate of Rs. 30,000/- per month, as of now from the date of filing the present suit and
(e) For costs of this suit;
SCHEDULE
All that piece and parcel of land measuring 3337 sq.ft, (excluding 56 sq.ft, sold vide document No. 885/1972) and Ground plus 2 Floors building measuring about 3000 sq.ft, in T.S No. 43, Block No. 35 situated in Old Door No. 2, Now 55, New No. 18/1 & 2, Soodiammanpet Street, Saidapet, Chennai - 600 015, registration District of Chennai South and Sub-Registration District of Saidapet bounded on the:
North by: Soodiammanpet Street, South by: House No. 118, Jones Road,
East by: Backyard premises Nos. 119 & 120, Jones Road,
West by: House No. 3, Soodiammanpet Street, Measuring:
On the Northern Side: 41 feet
On the Southern Side: 42 feet
On the Eastern Side: 81.9 feet
On the Western Side: 81.9 feet.
JUDGMENT
The suit has been filed seeking the relief of: (a) declaration that the plaintiff is the sole and absolute owner of the suit property, i.e, located at 18/1 & 2 Soodiammanpet, Saidapet, Chennai - 600 015; (b) to deliver vacant possession of the suit property; (c) mesne profits at the rate of Rs. 30,000/- per month, from the date of filing of the suit.
2. The brief averments in the plaint are as follows:-
The plaintiff is a physically challenged person, having suffered amputation of both arms, in a train accident. He was working as a Reader in the Small Causes Court and thus, he had self-earnings. The plaintiff purchased the suit property out of his self-earned money in the name of himself and his sister-Saraswathy on “either or survivor” basis. The purchase was made as per Ex.P-2, dated 29.10.1963
2.1 The plaintiff's vendor, Narasimhalu Chettiar, was a prisoner at that point of time and therefore, his wife, as Power Agent, has sold the property.
2.1 The plaintiff, along with his sister, had sold a small piece of the land in the backyard of the suit property along with the right of pathway to his vendor, Narasimhalu Chettiar, by way of sale.
2.2 The plaintiff's sister died on 09.10.1985 and the death Certificate is Ex.P-4. The plaintiff's father died on 17.03.1980 as per Ex.D-10. The plaintiff's mother died on 17.06.2001, as per Ex.D-6.
2.3 The defendants, being family members of the plaintiff, were living along with him in the suit property. On a monthly rental basis, the defendants were permitted to stay. Due to personal reasons, the plaintiff shifted his family in the year 1980. After the demise of the plaintiff's mother in the year 2001 and immediately after retirement of the plaintiff from the service, he requested the defendants to handover possession. The defendants requested time till 2004, but did not upkeep the promise. The plaintiff came to know that the defendants are fraudulently concocting documents in their names and they refuse to vacate the property. The defendants went to the extent of denying the title of the plaintiff.
2.4 The plaintiff issued a notice, dated 19.07.2011, under Exs.P-5 and P-6 to the first and second defendants asking them to vacate the suit property. The first defendant gave a reply, under Ex.P-7, dated 25.07.2011 claiming that the suit property belonged to him. It amounted to denial of title of the plaintiff. Thus, the plaintiff was compelled to file the suit for declaration of title and for recovery of possession.
3. In the written statement filed by the first defendant, the following averments have been made:-
The defendants' father-Govindarajulu was an AGOT at Madras High Court. His father had five sons, namely, the plaintiff-G. Ramakrishnan, D-1-G. Subramanian, D-2-Jayaraman, Vijayaraghavan and Hanumantharao. The only daughter was G. Saraswathi. Out of five sons, the second defendant died and the legal representatives of the deceased second defendant are D-3 to D-7.
3.1 The suit property was purchased by the plaintiff's father, benami, in the name of the plaintiff and her sister-G. Saraswathi. It was only a family arrangement. From the date of purchase of the property, the plaintiff's father was residing in the suit property along with the defendants. The plaintiff is residing separately after his marriage and the plaintiff never resided in the suit property.
3.2 On 05.11.1977, there was a family arrangement between the plaintiff, Vijayaraghavan and Saraswathi and the plaintiff had executed a release deed, dated 17.10.1979 The release deed is kept pending registration, as the plaintiff did not produce the Income-Tax Clearance Certificate.
3.3 The plaintiff's father settled the property by way of his last Will, dated 24.01.1977, in favour of the first defendant and the second defendant and the plaintiff's sister-Saraswathi. After the death of the father and the sister, defendants 1 and 2 are the absolute owners of the suit property. The first and second defendants had executed a registered partition deed, dated 28.04.1995, after dividing the property by mets and bounds. The legal heirs of Saraswathi are not impleaded in the suit and hence, the suit is bad for non-joinder of necessary parties.
3.4 The plaintiff did not seek the relief of setting aside the subsequent documents and therefore, the suit is not maintainable.
4. The brief averments in the written statement of defendants 3 to 7 are as follows:-
The suit is not maintainable. As the plaintiff has claimed that the defendants are tenants. the remedy open to the plaintiff is available only before the Rent Controller under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
4.1 These defendants also claim that they are in possession and enjoyment of suit property for more than 15 years prior to the filing of the suit and therefore, they have perfected their title by way of adverse possession.
4.2 In other aspects, it is the replica of the averments made in the written statement of the first defendant.
5. After hearing both sides, the Court has framed the following issues for trial:-
(i) Whether the plaintiff is entitled to declare himself as the sole and absolute owner of the suit property pursuant to the sale deed dated 28.10.1963 registered as document No. 3204/1963 on the file of the Sub Registrar Office, T. Nagar?
(ii) Whether the defendant is bound to deliver vacant possession of the suit property to the plaintiff, pursuant to the sale deed, dated 28.10.1963 registered as Document No. 3204/1963 on the file of the Sub Registrar Office, T. Nagar?
(iii) Whether the plaintiff is entitled to mesne profits from the defendants at the rate of Rs. 30,000/- per month from the date of filing the present suit till the date of realization along with interest?
(iv) Whether the suit is barred by limitation?
(v) Whether this Court has got jurisdiction to entertain the suit?
(vi) Whether the defendants has perfected title by way of adverse possession as claimed?
(vii) To what other reliefs, the plaintiff is entitled to?
6. The plaintiff claim title by virtue of the sale deed, dated 28.10.1963 The defendants claim that the suit property was purchased benami in the name of the plaintiff by their father. When the title deed stands in the name of the plaintiff and when the defendants claim it is benami, then the burden of proof is upon the defendants to show that the purchase was benami. But this burden of proof has not been discharged by the defendants. Therefore, the plea of benami has not been proved by the defendants.
7. The next contention of the learned counsel for the defendants is that the suit filed by the plaintiff is not maintainable based upon the sale deed, dated 28.10.1963, as the mode of transfer of property, as alleged in the sale deed is unheard of and it is illegal. In other words, it is contended that the “either or survivor” clause, which is applicable only to movable property cannot be made applicable to purchase of property. It is contended that this clause cannot confer any valid title upon the plaintiff, as the person on whom the title would vest itself is not clear and that, if this mode of transfer is permitted it would operate against the principle of succession to the property and therefore, the plaintiff cannot get a declaration.
7.1 It is specifically contended by the learned counsel for the defendants that this mode of conferment of title would be against the provisions of the Transfer of Property Act, 1882, The Hindu Succession Act and The Indian Succession Act, (providing for entitlement to property after the death of the owner of the property) and therefore, the transfer itself is not valid and the plaintiff cannot make any claim based on that.
7.2 The word “transfer” as defined in Section 5 of the Transfer of Property Act does not prohibit transfer of property by invoking “either or survivor” clause. The definition under Section 5 of the said Act, reads as under:-
“Section 5 - Transfer of property defined -
In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.”
7.3 As per the provisions of Section 5 of the said Act, transfer can be made to one or more other living persons. How the “one or more living persons” would take the property is the matter of contract between themselves. Therefore, just because the purchase is by invoking either or survivor clause, that cannot operate as an impediment for the plaintiff to get title, if otherwise he is entitled to that.
7.4 It is appropriate to consider the definition and Interpretation of the clause “Either or Survivor”:-
Definition and explanation of ‘Either or Survivor’ clause:-
7.5 This is the most common type of joint account and is applicable between any two individuals. For example, if a husband and wife have a joint account with ‘either or survivor’ clause, either of them can operate the account and in the case of the death of one of the depositors, the other can continue or the final balance in the account along with all interests (as applicable at the time of closure) will be paid to the survivor.
Interpretation of Either or Survivor’ clause
7.6 It would be appropriate to consider how this clause has been interpreted by the Courts.
7.7 In the case of Parvathi v. Valliyammal, decided on 3 February, 2005, this Court has held as follows:-
“Banks have now accepted the view that in an account, where the operation is by “Either or Survivor”, the survivor is the only person who is entitled to the balance thereof after the death of one of the account holders. This practice is based on the principle that the terms of operation form part of the contract of deposit. ….
When an inter se dispute arises as to the ownership or beneficiary of the amount, that ownership has to be proved de hors the receipt…… ‘Either or Survivor’ account will not make the survivor the beneficiary or the owner of the amount. It only enables the survivor to collect the amount as Trustee for the other heirs. From the mere opening of an account as ‘Either or Survivor’, an inference should not be made that the survivor is entitled to collect and appropriate the entire amount for himself.”
“12. …. The fixed deposit receipt is merely a written acknowledgment by the bank that it holds a certain sum to the use of its customers and that the bank is thus a debtor to the account-holders in respect of the amount deposited a debt which is repayable by the bank to the account-holders with interest on expiry of an agreed period. An “either or survivor” clause in such an account means that the amount payable by the bank on maturity of fixed deposit may be paid to either of the account-holders by the bank in order to obtain a valid discharge.”
7.8 To illustrate this, a father or brother or husband residing abroad may send money and ask the relatives in India to deposit the amount into the Bank. To enable the operation, relatives may have the account in their name. Having regard to the nature of the operation and the nature of investment Courts have held that the deposit receipt alone will not give title and the title is the matter to be proved. But, whether this interpretation can be extended to the purchases made with regard to immovable property is the issue to be considered.
7.9 What is the agreement inter se between the parties with regard to title, at the time of purchase of immovable property, is purely contractual between the purchasers inter se. Either both of them may claim joint title or one of them may relinquish title in favour of the other. It depends upon the terms and conditions of the purchase inter se between the two purchasers. Therefore, just because the purchase is stated to be by invoking either or survivor clause, the purchase cannot be said to be illegal.
7.10 The interpretation given to “either or survivor” clause in respect of movable property has two dimensions. The Bank has taken the view that out of two persons either one of them can claim title to the property, but the courts have taken the view that one of the person taking the money will hold it only as a trustee for the other and the title vests with both of them.
7.11 So far as this case is concerned, the inter se agreement between the parties is not known. It is simply stated that Saraswathy is dead and gone. It is admitted in the evidence of the defendants the whereabouts of the legal representatives of Saraswathy is not known. Therefore, the plaintiff alone has filed the suit. If at all there is any grievance for the legal heirs of Saraswathy, it is open to them to attack the title based upon the sale deed. Their grievance cannot be ventilated by the defendants. Therefore, the contention that just because the legal representatives of Saraswathy are not impleaded, the suit is not maintainable, cannot be accepted.
8. It is the contention of the learned counsel for the defendants that even assuming for the sake of argument that this mode of transfer is valid, even then the plaintiff has not impleaded the legal heirs of Saraswathy and therefore, the suit is bad for non-joinder of necessary parties and hence the suit is liable to be dismissed. In support of the proposition, the decision reported in 2014 (2) MWN (Civil) 168 (L. Suresh v. Yasothammal) is relied upon by the learned counsel for the defendants, where-under it has been held that if the presence of the parties are necessary for adjudication of the issue and if they are not impleaded, the suit has to fail. The relevant observation reads thus:
“11….Order I Rule 9:
9. Misjoinder and nonjoinder:- No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.”
If the parties are proper parties, they need not be impleaded. But if the parties who are necessary to the adjudication of the issue between the parties are not included, then the suit has to fail in entirety……”
8.1 Whether the legal heirs of Saraswathy are proper and necessary parties and whether their non-impleadment is fatal is the issue canvassed.
8.2 Admittedly, the plaintiff is the survivor. The nature of inter se dispute between the plaintiff and his sister with regard to title exist or not itself is an issue, not brought before the Court. It is open to the legal representatives of Saraswathy to raise that issue, if they believe that they have such a right. Therefore, at this stage, it cannot be contended that legal heirs of Saraswathy are necessary parties though they may be proper parties. It has been already answered that the non-impleadment of the legal representatives of Saraswathy is not fatal to the claim of the plaintiff seeking for declaration and therefore, the suit is maintainable.
8.3 Yet another contention of the learned counsel for the defendants is that, there had been partition of the suit property between the first defendant, his son and the second defendant, by way of the registered partition deed, dated 28.04.1995, and without setting aside the same, the plaintiff is not entitled to ask for declaration of title.
8.4 This contention cannot be accepted, as the plaintiff is not a party to the partition deed. Therefore, it is not necessary for him to have it set-aside. Therefore, the contention that the suit is not maintainable, without setting aside the partition deed is not valid.
9. The next contention of the learned counsel for the defendants is that the suit is barred by limitation. It is pointed out that even during 1978, the defendants have denied the title of the plaintiff and the suit ought to have been filed within a period of three years from the date of denial and as the suit is not filed within three years from the date of denial, the suit is barred by limitation.
9.1 The learned counsel for the defendants relied upon Ex.D-31-notice sent by the learned counsel for the plaintiff's father asking the plaintiff to vacate the suit property. Under Ex.D-32 the plaintiff has sent a reply through the counsel, making his claim that he is the owner of the suit property. In the reply, he (the plaintiff) has specifically mentioned that the plaintiff, despite his right over the suit property is keeping quiet, after termination of license granted to plaintiff's father himself, out of love and affection and therefore, the plaintiff's father should restrain himself from approaching the Court. Thereafter, the plaintiff's father did not initiate any action. Therefore, the silence on the part of the father amounts to admission of the title of the plaintiff. Therefore, when the title is deemed to have been admitted the limitation does not begin to run. In other words, limitation did not start from 1978. It is relevant to point out that the denial of title was not by defendants 1 and 2. Therefore, the cause of action did not start running as against defendants 1 and 2 during the year 1978.
9.2 The denial of title by defendants 1 and 2 is only in the year 2011 by Ex.P-7, dated 25.07.2011 Therefore, the suit is not barred by limitation.
Adverse possession:
10. The learned counsel for the plaintiff submitted that the defendants have taken pleas which are destructive of each other and that the defendants cannot base their claim based upon ration card, payment of electricity bill and property tax receipts, especially when their possession is admitted. It is specifically contended that, a person pleading adverse possession has no equities in his favour and therefore, when the defendants take such a plea they have to prove the essential factors, namely, that the possession was open, continuous, hostile and also to the requisite period of twelve years.
10.1 But the contention of the learned counsel for the defendants is that the defendants have perfected title by adverse possession, having established their long possession by filing electricity card/bill, property tax receipts/demand notice from Corporation of Chennai and patta.
10.2 In support of the above contention, the learned counsel for the defendants relied upon the decision reported in 2002 (4) CTC 545 (Ayeesha Bibi v. S. Mohamed Ibrahim) where-under it is pointed out, what is the starting point of limitation in case of co-owners when the defence of hostile possession is taken:-
“21. It is settled law that the possession of a co-owner cannot be considered to be adverse to the other co-owner. The entry and possession of a land by one co-owner is not presumed to be adverse. The possession becomes different when the title of some of the members has been denied and their right of enjoyment of the properties has been repudiated to their knowledge. From that moment, the character of the possession of the hostile co-owner changes and it becomes adverse possession who have knowledge of the ouster and the limitation time began to run against them.”
10.3 It is not even the case of the defendants that they are co-owners. When the defendants claim title by adverse possession, it is for them to say from which point of time their possession became adverse to the title and possession of the plaintiff. Not even the basic averments have been stated in the pleadings.
10.4 The classical requirement of the adverse possession is that it should be nec vi nec clam nec precaro. The possession required must be adequate in continuity in publicity and in extent to show that the possession was adverse to the competitor. In case of the competitor being a co-heir, it is not enough to show that one was in sole possession and enjoyment of the property, but it must be shown that the possession was towards assertion of hostile title to the knowledge of the other co-heirs. The essential requirement has been highlighted by the Supreme Court, in the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in AIR 1957 SC 314, where-under it has been held as follows:-
“But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy(3)). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.”
10.5 In the decision reported in (1995) 2 SCC 543 (Anna Saheeb Bapusaheeb Patil v. Balwant) it has been held that a person whose possession can be referred to lawful title, will not be permitted to show that his possession was hostile to another's title.
10.5.1 When the defendants claim that as a lawful owner they have partitioned their property through a partition deed they cannot be permitted to show that their title was hostile to that of the plaintiff.
10.6 The requirement to be proved by person claiming adverse possession has also been highlighted in the case of Karnataka Board of Wakf v. Govt. of India, reported in (2004) 10 SCC 779, which runs as under:-
“Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).”
10.7 So far as this case is concerned, this requirement is not fulfilled. Throughout, the case of the defendants is that, the property originally belonged to his father and later on, it was divided between two brothers and thus the defendants are exclusive owners of the property.
10.8 It is contended that the possession of the defendant was for and on behalf of the plaintiff, when the defendants were in permissive possession. In support of the said proposition, the learned counsel relied upon the decision reported in (2012) 6 SCC 430 (A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai), where-under it has been held as follows:-
“68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holders claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
a) who is or are the owner or owners of the property;
b) title of the property;
c) who is in possession of the title documents d) identity of the claimant or claimants to possession;
e) the date of entry into possession;
f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
h) if taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
j) subsequent conduct, i.e, any event which might have extinguished his entitlement to possession or caused shift therein; and
k) basis of his claim that not to deliver possession but continue in possession.”
10.9 The claim of the defendants with regard to adverse possession cannot be accepted because of lack of essential pleadings, lack of evidence and also on the question of law.
11. It is pointed out by the learned counsel for the defendants that the plaintiff executed release deed, dated 17.10.1979, and the plaintiff has suppressed the same in the plaint and therefore, he must be non-suited. As the plaintiff is guilty of suppression of material facts, when fraud is established, the Court can non-suit the plaintiff on that ground alone, is the contention of the learned counsel for the defendants. In support of the proposition, the decision reported in 2012 (1) MWN (Civil) 339 (Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates P. Ltd.) is relied upon.
11.1 It may not be out of place to point out that the release deed is yet to be registered. Ex.D-1 is the information obtained using the Right To Information Act, 2005, in which, it is stated that it is a document executed by the plaintiff in favour of his father. It is not registered as the required certificate under Section 230 (A)(1) of the Income Tax Act, 1961, has not been filed.
11.2 When the release deed is not even filed, the contents of the document cannot be relied upon to support the defence that the plaintiff has no title.
11.3 For non-filing of the release deed there may be too many reasons. The plaintiff might have thought that since it is a document requiring registration, which is not registered, the document cannot be relied upon and therefore, it is not necessary for him to disclose it. In the absence of the defendants taking steps to mark the release deed, it is not open to them to contend that suppression of release deed would amount to suppression of material fact.
11.4 Moreover, it is pointed out by the learned counsel for the plaintiff that a document requiring registration cannot be admitted into evidence and it is not valid in law. In support of the proposition, the decision reported in CDJ 2004 MHC 1499 (R. Deivanaiammal (died) v. G. Meenakshiammal) is relied upon, where-under it has been held that where a document is not duly stamped and registered, the same is inadmissible in evidence and not valid in law.
11.5 The learned counsel for the plaintiff also relied upon further observations, reported in the R. Deivanai Ammal's case, cited supra, wherein it has been held as follows:-
“Ex.B-28 is not only a document of family arrangement reduced to writing, but it purports to create, declare/extinguish right, title or interest of the properties of Ganapathy Moopanar. In such a circumstance, we hold that it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act respectively. There is no dispute that if a document is in the nature of a memorandum evidencing a family arrangement already entered into and document prepared as a record of what had been agreed upon, it need not be stamped or registered. Considering the recital in the document and categorical statement made therein, we are satisfied that Ex. B-28 cannot be treated as a mere document in the nature of memorandum, but it is a family arrangement in which plaintiff and 1st defendant extinguished their right, title or interest of the immovable properties of Ganapathy Moopanar by accepting cash and jewels as agreed to in para 2 of the document; accordingly we hold that the said document Ex.B-28 which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in section 35 of the Indian Stamp Act. The learned Subordinate Judge failed to advert these material aspects and committed an error in relying on the said document; accordingly the said conclusion cannot be sustained.”
11.6 Therefore, it is not open to the defendants to rely upon the relinquishment deed said to have been executed by the defendants without producing/proving the same.
Inconsistent Plea:
12. It is the contention of the learned counsel for the plaintiff that the plaintiff has already proved his title by production of title deed and apart from that, the defendants themselves have proved the case of the plaintiff by taking mutually destructive inconsistent plea and therefore, the plaintiff's suit has to be decreed.
12.1 It is open to the defendants to make alternative and inconsistent claims provided they are based on facts which are not inconsistent. Alternative claims or pleas, even if based upon facts, which are so inconsistent, the evidence required to prove one fact would be destructive of the plea taken of the other fact. That is why, the Court has been given power under Order 6 Rule 16 CPC either to struck off the pleadings or amend the pleadings, when it is shown that the alternative plea taken may tend to prejudice, embarrass or delay the fair trial of the case. The defendants, if choose to establish both alternative claims, place themselves in peril and in addition to that, they find themselves sandwiched/entangled because of the inextricable difficulty in getting the credibility for the evidence adduced.
12.2 It is the contention of the learned counsel for the defendants that the plaintiff has also taken inconsistent plea and therefore, the case of the plaintiff has also to be thrown out. So far as the alternative plea/inconsistent plea allegedly taken by the plaintiff is concerned, what is expected of the plaintiff is that, he is not expected to take any alternative plea, which changes the entire nature of the suit or take the case out of the jurisdiction of the Court. But there can be an alternative plea based on mutually consistent allegation of fact or alternative relief can also be claimed on the basis of same allegations. The only difficulty is about inconsistent pleas on the basis of inconsistent factual allegations which are mutually destructive of each other. When the plaintiff claims that the defendants are tenants or they are in permissive occupation, there is no inconsistency to the extent of each mutually destroying the other. Therefore, just because the plaintiff has taken the plea of tenancy/permissive occupation by the defendants, it cannot be said that suit is bad on account of that. Therefore, just because the plaintiff has taken two pleas that itself cannot be a ground to dismiss the suit.
12.3 In this case the defendants have taken the pleas which cannot stand against each other and therefore, the defendants plea cannot defend their case.
13. In the result, the suit is decreed. Four months time is hereby granted, to vacate the suit property, from the date of receipt of a copy of this judgment. Claim for mesne profits will be decided in the separate proceedings.
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