Kewal Kishan v. Delhi Development Authority .

Manmohan Singh, J. (Oral):— The petitioner has filed the present petition under Article 227 of the Constitution of India against the order dated 15th March, 2013 passed by the learned Civil Judge (West), Tis Hazari, Delhi, in Suit No. 744/2006, whereby the petitioner/plaintiffs application under Order VI, Rule 17 read with Section 151 CPC was dismissed.

2. The main reason stated in the application for amendment of plaint was that in the month of February, 2012 when the petitioner was undertaking repairs in his ancestral house, he found that his father was also declared asami over the suit land. Therefore, it had become necessary for the petitioner to amend the plaint by filing of the application under Order VI, Rule 17 CPC for the purpose of proper adjudication of the suit.

3. Originally, the suit was filed by the petitioner/plaintiff for declaration and permanent injunction, on the ground that the respondent/defendant is trying to dispossess him from the suit property without any reason, as the petitioner has been in continuous and exclusive possession of the suit property. It was also stated in the plaint that no notice was served upon the petitioner which was mandatory therefore the act of the respondent was illegal. In the prayer of the suit, the declaration was sought by the petitioner that he became owner of the suit property by way of adverse possession and prayed for permanent injunction against his dispossession by the respondent, mainly, on the ground that his possession is adverse to the Government.

4. The petitioner along with application under Order VI, Rule 17 CPC has also filed the proposed amended plaint whereby the relief for declaration is sought by the petitioner that he be declared exclusive owner of the suit premises and the official of the respondent be restrained from demolishing the construction and/or dispossessing the petitioner from the suit premises.

5. The application was strongly opposed by the respondent, mainly, on the ground that the amendment sought by the petitioner if allowed, would change the cause of action as well as very nature of the suit which was filed to claim the ownership by way of adverse possession.

6. It is alleged by the respondent that the suit land falls in Khasra No. 708/2(0-9) of Village Wazir Pur, Delhi. The suit land has been unauthorizedly encroached by the plaintiff in the shape of shops and houses. As per land record Khasra No. 708/2 (0-9) has been acquired vide Award No. 1632 and placed at the disposal of DDA under Section 22(1) of D.D Act vide notification No. F. 88(9)/62.L&H II dated 05.09.1964 The physical possession has been taken over by the D.D.A on 08.11.1963 from L.A.C/L&P. The temple is not built on DDA's acquired land. The area of temple approx. 0-4 biswas has been left out in the said Award and other structures falls in D.D.A acquired land.

7. It is admittedly alleged by the petitioner that in the year 1965, a compromise had been arrived at between the owners of land, i.e Bhumidars and original tenants, i.e Ram Chander (father of the petitioner) regarding payment of compensation from the Government. An application under Order XXIII, Rule 3 CPC was filed for recording of compromise and payment of enhanced compensation thereof and by virtue of the same, the father of the petitioner was given 10/16 share.

8. The following decisions are referred to:

(i) Arundhati Mishra v. Shri Ram Charita Pandey, (1994) 2 SCC 29, Para 4 whereof reads as under:—

“4. The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation forthe belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs.”

(ii) Mrs. Adarsh Kaur Gill v. Smt. Surjit Kaur Gill, FAO(OS) No. 634/2009, decided on 15th January, 2009, Paras 12, 13 & 14 whereof read as under:—

“12. It was put to the senior counsel for the appellant defendant that the plea now sought to be taken of ownership by way of adverse possession was mutually destructive to the plea earlier taken in the written statement of possession as a co-owner, a subrogatee-mortgagee and as a lessee. The senior counsel for the appellant defendant however contends that inconsistent pleas are permitted to be taken in the written statement and relies on the judgments noted above. Though inconsistent pleas are permitted to be taken by way of amendment in the written statement but the Supreme Court has at the same time in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693 & in Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85 distinguished inconsistent pleas from mutually destructive pleas. Thus though a defendant is entitled to take an alternative and inconsistent plea, such alternative pleas cannot be mutually destructive of each other; pleadings of the parties are required to be read as a whole; defendants although are entitled to raise alternative and inconsistent pleas but should not be permitted to raise pleas which are mutually destructive of each other.

13. The plea of ownership by way of adverse possession now sought to be taken is found to be mutually destructive to the plea of possession as co-owner, as a subrogatee-mortgagee in possession and as a tenant. The Supreme Court in L.M Aswathama v. P. Prakash, has also held that pleas based on title and adverse possession are mutually destructive; adverse possession does not begin to operate until title is renounced; unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period of prescription will not commence.

14. We, therefore, find the appellant defendant, by way of amendment to be totally changing the stand/defence in the written statement as originally filed and which is impermissible in law. The counsel for the respondent/plaintiff is correct in contending that the appellant defendant by substituting the pleadings in as many as 15 paragraphs in the written statement is attempting to withdraw the admissions made in the Written statement as originally filed of the possession of the appellant defendant as a co-owner, as a sub tenant and as a mortgagee in possession.”

(iii) Pramod Kumar Jain v. Ramesh Kumar Jain, I.A No. 187/2011 (Order VI, Rule 17 CPC) in CS(OS) No. 2179/2010, decided on 19th May, 2011, Para 9 whereof reads as under:—

“9. In the case before this court also, since the defendant has already pleaded co-ownership. Plea of ownership and the plea of adverse possession now sought to be taken by way of proposed amendment are mutually destructive and both of them cannot be allowed to stand together. Law permits the defendant to set up alternative and in some cases even inconsistent pleas, but, not the pleas which are mutually destructive of each other. The application therefore, is liable to be dismissed on this short ground alone.”

(iv) Steel Authority of India Ltd. v. Union of India, (2006) 12 SCC 233, Para 28 whereof reads as under:—

“28. The workmen whether before the Labour Court or in writ proceedings were represented by the same Union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication.

(v) Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, Para 25 whereof reads as under:—

“25. Pleadings of the parties, it is trite, are required to be read as a whole. The defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in considering as to whether the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore. [(See Ranganayakamma v. K.S Prakash (D) By Lrs., [2008 (9) SCALE 144]. It is for the aforementioned purpose, the deed of sale was required to be construed in proper perspective.”

9. It appears from the amended plaint that in case the application for amendment is allowed then the nature of the suit filed by the petitioner with regard to adverse possession to Government would be changed. It is also undisputed fact that the father of the petitioner in the year 1995 when he was alive also filed a suit for declaration and permanent injunction against DDA for declaring him to be exclusive owner of the suit premises and restraining the DDA from dispossessing him from the suit premises and demolishing the structure of the suit property. However, he died during the pendency of the suit in 1997. It was only in the month of February 2012 when the petitioner was undertaking repairs in his ancestral house, the petitioner discovered some old record and found that father of the petitioner was declared as ami over the land.

10. In view of the abovementioned reasons and settled law on the issue, I am of the considered view that the proposed amendment, if allowed, would definitely change the nature of the suit. Even the application filed by the petitioner at this belated stage cannot be allowed. It appears from the pleadings of the case that the petitioner wants to change his stand when the matter is fixed for petitioner's evidence who instead of producing the evidence has filed the present application for amendment of the plaint.

11. In the present petition under the scope of Article 227 of the Constitution of India the impugned order cannot be interfered with. The petition is dismissed.

12. However, it is made clear that the observation made in the impugned order 15th March, 2013 as well as the order passed by this court shall not come in the way of the petitioner's case when it is decided on merit after the trial.