IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 510 of 2007 (O&M) Date of Decision: 12.1.2010 Madan Lal and another. ....... Appellants through Shri Chetan Mittal, Senior Advocate with Shri Vishal Garg, Advocate. Versus Ram Pal and another. ....... Respondents through Shri Vijay Lath, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 13.10.2005 and 21.7.2006 passed respectively by the Additional Civil Judge (Senior Division), Anandpur Sahib (hereinafter described as `the trial Court') and the Additional District Judge, Ropar (referred to hereinafter as `the first appellate Court') whereby the suit and the appeal of the plaintiffs-appellants were dismissed. A suit for possession was filed by the appellants by pleading that the suit property was owned by them after the death of their father-Ram Asra; that during his life time, Ram Asra had filed a suit for perpetual injunction against Amar Nath, predecessor-in-interest of the respondents, which was dismissed on 30.9.1980; that Civil Appeal No.115 of R.S.A.No.510 of 2007 -2- .... 1980/1981 filed by Ram Asra was partly accepted on 19.1.1981; that no further appeal was filed and those findings were binding on the parties; that the respondents have violated the terms of the said decree and have constructed fresh pucca wall instead of kucha wall which existed; that in execution of the above said decree, the respondents were proceeded against under Order 21 Rule 32 of the C.P.C. and pursuant to those proceedings, they forfeited their right of tenancy as they had pleaded adverse possession; and that this assertion of theirs in the execution proceedings prompted the appellants to file the instant suit for possession. In response to the notice issued by the trial Court, the respondents filed their written statement pleading that the suit was time barred and that it was not maintainable. On merits, they claimed that they had become owner of the suit property by way of adverse possession after expiry of twelve years on 19.11.1983 and that the appellants were not the owners any more. The parties went to trial on the following issues:- 1. Whether the plaintiffs are entitled to the possession of the disputed property after removing the construction?OPP 2. Whether the defendants have become the owners of the property by way of adverse possession?OPD 3. Whether the suit of the plaintiff is time barred?OPD 4. Whether the suit is not maintainable in the present form?OPD R.S.A.No.510 of 2007 -3- .... 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit?OPD 6. Relief. The trial Court as well as the first appellate Court dismissed the suit and the appeal of the appellants. In so far as the issue of ownership is concerned, both the Courts below concluded that the ownership of the appellants qua the suit property was not in dispute. However, the prayer of the appellants for possession was not answered in their favour on the ground that since in the earlier proceedings, the status of the respondents as tenants had conclusively been held, therefore, in the absence of any notice under Section 106 of the Transfer of Property Act,1882 (for short, `the Act'), the suit for possession was defective. Learned counsel for the appellants has contended with reference to the specific objection taken by the respondent in execution proceedings under Order 21 Rule 32 of the C.P.C. that since their tenancy right had been forfeited, they have become owners of the suit property by way of adverse possession. He further contended that once such a plea had been raised, then the requirement of issuance of notice under Section 106 of the Act was not mandatory and, therefore, the instant proceedings would not be vitiated in the absence thereof and would not take away the right of the appellants to get possession of the suit property. On the other hand, learned counsel for the respondents strenuously contended that merely because the plea of adverse possession R.S.A.No.510 of 2007 -4- .... had been taken by the respondents, their status of tenant which was determined by the Courts in the earlier proceedings would not be affected and that in such an eventuality, the requirement of issuance of notice under Section 106 of the Act for the purpose of claiming possession could not be dispensed with. In support of his contention, he placed reliance on a Division Bench judgment of Patna High Court in Rambaran Paswan Versus Smt.Kalo Dei and another, AIR 1974 Patna 333, wherein it has been observed as under:- “...... If a cause of action pleaded in the plaint includes the determination of the tenancy by virtue of a notice under Section 106 of the Act, then it is incumbent on the plaintiff landlord to prove legal and valid notice within the meaning of the provisions thereof in case a plea as to validity or the existence of any such notice is raised by way of defence. Another settled principle of law is that if a suit for eviction is based upon the relationship of landlord and tenant between the plaintiff and the defendant, and if there is no averment in the plaint that notice under Section 106 of the Act determining the tenancy has been duly served, then the plaint is fit to be rejected outright under the provisions of Order 7, Rule 11 of the Code of Civil Procedure. The present case, however, comes within the first category of cases mentioned above. The pleading with regard to notice under Section 106 of the Act is there. But it is plain that such a notice was not in consonance with the provisions of R.S.A.No.510 of 2007 -5- .... that section.” I have thoughtfully considered the rival contentions and have perused the impugned judgments, as also the other relevant material on record. From the contentions of the parties, I am of the opinion that the following question of law arises for consideration of the Court:- “Whether in the eventuality of a tenant forfeiting his status as tenant to claim ownership by way of adverse possession is still entitled to a notice under Section 106 of the Transfer of Property Act,1882 by the owner of the land while invoking a prayer for possession of the land in question?” As mentioned above, a civil suit for perpetual injunction was earlier filed by the father of the appellants against the predecessor-in- interest of the respondents, which was dismissed on 30.9.1980. In appeal, it was partly decreed and the decree contained the following essentials:- “i) That said Amar Nath (deceased) was inducted as tenant by said Ram Asra (owner) and he was in possession as tenant under Ram Asra plaintiff regarding the land in suit in this suit. ii) That the suit was triable by this learned court only. iii) That Sh.Amar Nath was not a permanent tenant as was claimed by him and that he was a tenant from month to month. iv) That there was no estoppel on the part of plaintiff in filing the suit. R.S.A.No.510 of 2007 -6- .... v) That the said Amar Nath and other tenants could not raise any further construction in future on the premises in suit and were restrained to do so by way of permanent injunction.” In execution of the above said decree, an application under Order 21 Rule 32 of the C.P.C. was filed in which the respondents took up the following objections:- “That applicants have not filed the suit for possession of the suit land against the respondent (present defendants) within period of 12 years from the date of judgment and decree and as such, the respondents have become the owners of the suit land by way of adverse possession for the continuous use and occupation of the suit land for a period of more than 12 years openly uninterruptedly with the knowledge of the applicants/plaintiffs and their said successors-in-interest without payment of anything in a hostile manner openly and asserting the rights of ownership owner over the said property. By this willful assertion and said pleadings of adverse possession the defendants have forfeited their rights of tenancy immediately thereafter. They have intentionally denied plaintiffs title over the suit land and have claimed title in themselves. They are no longer tenants of plaintiffs and no longer entitled to remain in possession of suit premises and the plaintiffs are entitled to possession of suit land as prayed for by them in the plaint. The plaintiffs have thus sued for possession R.S.A.No.510 of 2007 -7- .... of the premises in suit after removal of all the Malwa of the house in the suit land. The defendants were requested to hand over vacant possession of the premises but they have refused for the last one week.” The respondents, who are the tenants, except for raising of the aforesaid plea of adverse possession, never pleaded in their written statement that a notice under Section 106 of the Act was required to be served upon them. No such pleading found its way in their defence and this plea was raised before the first appellate Court which is impermissible. Had an objection been taken to this effect at the time of trial, the appellants would have an occasion to question the same, but in the eventuality of the respondents merely asserting their right of adverse possession and abdicating their status as tenants, there was no occasion for the appellants to even remotely counter such a plea. In Abdul Rahim Versus Md. Azimuddin, AIR 1965 Patna 156, a Division Bench of Patna High Court observed as under:- “....... It is true, inconsistent pleas on different grounds of defence can be pleaded. Rule 7 of Order 8, Civil Procedure Code, allows that. As early as in 1878, the case of Berdan v. Greenwood, (1878) 8 Ex.D. 251 recognised such privilege in defence. The power has been given to the Court under the Code of Civil Procedure, Rule 16 of Order 6 to strike out any matter in a pleading that may tend to embarrasses a fair trial of the suit. There is a certain amount of peril for the party who takes R.S.A.No.510 of 2007 -8- .... absolutely inconsistent pleas grounded on different and contradictory facts, and while leading evidence in support of them he will have to blow hot and cold in the same breath which is bound to shake confidence in the truth of his allegations. For such reason, inconsistent defences that will depend upon contradictory facts are not generally permitted. If a defendant challenges a plaintiff's title to the suit premises, he cannot at the same time plead that his tenancy has not been terminated according to law. ...... xx xx xx xx xx xx xx” Section 111 speaks of automatic determination of lease of immovable property if any of the eight things stated thereunder happens. One of them is “forfeiture”. What amounts to “forfeiture” has been explained in clause (g): breach of condition entailing re-entry and a written notice fire conditions precedent for forfeiture. If the suit for possession is based upon forfeiture, as both the parties as well as the courts below understood the present case to be, there was no necessity for the plaintiff to state categorically about the performance of the conditions precedent for the forfeiture. As provided under Order 6, Rule 6, Civil Procedure Code, an averment of a performance or occurrence of all conditions precedent necessary for the case of the plaintiff shall be implied in his pleading. If the defendant intended to contest any of those R.S.A.No.510 of 2007 -9- .... conditions precedent, namely, service of notice, it was incumbent upon him to distinctly specify the same in his written statement. The plaint disclosed that there had occurred a forfeiture and that was sufficient to give rise to a cause of action for the suit. xx xx xx xx xx xx xx xx ......... Whether the plaintiff gave a notice in writing of his intention to determine the lease on that account could have been enquired if the defendant had raised that question in his written statement or during trial. A belated attempt to scuttle the suit by such a plea in in second appeal is bound to embarrass a fair trial of issues between the parties and to prejudice the plaintiff seriously.” (emphasis supplied) Admittedly, in their plaint, the appellants did not plead the termination of tenancy as a cause of action to file the suit, but pleaded that the cause of action arose to them in June,2000 when the respondents denied their title and forfeited the right of tenancy. Therefore, the law laid down in Rambaran Paswan's case (supra) is not applicable to the facts of the instant case and rather, the observations made in Abdul Rahim's case (supra) apply because of the fact that the eviction of the respondents had been sought on the ground of forfeiture of tenancy and, thus, the requirement of notice under Section 106 of the Act was not mandatory and the suit of the appellants was maintainable and ought to have been answered in their favour. R.S.A.No.510 of 2007 -10- .... The question of law is answered accordingly, the appeal is accepted, the impugned judgments and decrees are set aside and the suit of the appellants is decreed as prayed for. The parties shall bear their own costs throughout. January 12,2010 ( Mahesh Grover ) “SCM” Judge