NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5229 OF 2000
Dhanpal Balu Lhawale & Ors. .......Appellants
Vs.
Adagouda Nemagouda Patil (D) by Prop. Lr ...Respondent
JUDGMENT
HARJIT SINGH BEDI,J.
1. This appeal arises out of the following facts.
2. The plaintiff-respondent Adagouda Nemagouda Patil,
filed O.S. No. 182/1972 for a declaration of title and
permanent injunction claiming tenancy over the suit land and
in the alternative, to title on the basis of a will dated 27th
December 1971 alleged to have been executed by Smt.
Kusabai. The defendant/appellant Dhanpal Balu Lhawale,
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his mother, sister and wife entered appearance and resisted
the suit, and challenged the execution of the will aforesaid.
Dhanpal Balu, the first defendant in the aforesaid suit also
filed O.S. No.310/1990 claiming the relief of permanent
injunction on the basis of title. As the subject matter in both
the suits was common, they were clubbed together. On an
examination of the record, the trial court vide its judgment
dated 15th December 1994 decreed O.S. No.182 of 1972 to the
extent of granting an injunction but rejected the prayer for a
declaration whereas OS No.310 of 1990 was dismissed.
Aggrieved by the judgment in O.S. No.310/1990 defendant
No.1, the appellant in the present proceedings, Dhanpal Balu
preferred R.A.No.18/1995 whereas the plaintiff Adagouda
Nemagouda too being aggrieved by only the partial decretal of
O.S. No.182/1972 preferred R.A.No.23/1995. The first
appellate court on a re-appreciation of the evidence allowed
R.A.No.18/1995 and dismissed R.A.No.23/1995 vide order
dated 7th October 1996. It also appears that the plaintiff,
Adagouda Nemagouda, had filed an application in form VII
before the Land Tribunal claiming occupancy rights and this
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plea too was rejected by the tribunal on 11th November 1981.
It has been pointed out to us that the order of the Land
Tribunal had been challenged by Adagouda by way of Writ
Petition No.3912/2001 which was dismissed on 7th December
2006 and the writ appeal filed against the order of the learned
Single Judge, that is Writ Appeal No. 1023/2007, too has
been dismissed by the Division Bench on 24th September
2007. Aggrieved by the order of the Lower Appellate Court
dated 7th October 1996, in which Adagouda’s prayer on the
basis of the will had been rejected, he preferred a second
appeal in the High Court. The High Court in its judgment
dated 7th April 1999 while upholding that the will had not
been proved, granted a decree for injunction to Adagouda but
dismissed the suit for injunction filed by Dhanpal observing
that even though Adagouda was in unlawful possession of the
property he was nonetheless entitled to an injunction. The
present special leave petition has been filed in this Court
against the order dated 7th April, 1999 of the High Court.
During the pendency of this appeal, I.A. No.1 under Order 6
Rule 17 read with Section 151 of the CPC has been filed by
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the appellant seeking to amend the prayer clause in the
Special Leave Petition as originally laid. The amendment
sought is reproduced below:
“In the circumstances obtaining inthis
case, this Hon.Court be pleased to set aside
the judgment of the Hon’ble High Court of
Karntaka in R.S.A.No.73/97 dated 7.4.99
by granting the relief of injunction in favour
of the petitioners or in the alternative this
Hon’ble Court be pleased to grant an order
directing the respondent to hand over
possession of the suit schedule property to
the petitioners.”
3. In the facts of the case, we are of the opinion that this
amendment application needs to be allowed in the face of the
fact that, as of today, the claim of the plaintiff respondent,
Adagouda Nemagouda, on the basis of the will and in the
alternative, on the basis of a tenancy has been rejected and
his status is only that of a trespasser.
4. During the course of the hearing, the learned counsel for
the plaintiff-respondent herein Adagouda Nemagouda, has
pointed out that the facts given above are correct and the
status of the respondent was that of a trespasser and though
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a trespasser he was entitled to an injunction as he had been
in possession since the year 1959 and it was thus appropriate
that the appellant be called upon to file another suit seeking
possession. The learned counsel for the appellant has,
however, pointed out that in view of the above admitted
position and the fact that there was virtually no defence left to
the respondent, and in the background of the fact that the
litigation inter-se the parties, has been pending in one forum
or the other since the year 1972, it would be a matter of great
hardship if the matter was relegated to the civil court for yet
another suit for possession.
5. We are of the opinion that the assertion made by the
learned counsel for the appellant has merit. We find from the
record that Adagouda Nemagouda has exhausted all the
remedies that were or are open to him. Admittedly he has
been in possession since long, but in view of the above factual
statement, his status now is of that of a trespasser. We
accordingly in the interest of justice allow this appeal, set
aside the order of the High Court dated 7th April 1999 in RSA
No. 73 of 1997 and in the light of the amended prayer clause
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direct the respondent to hand over possession to the appellant
herein by the end of the year 2010, on paying a sum of
Rs.5,000/- per acre and filing an undertaking in the above
terms within 12 weeks from today. In case the undertaking is
not filed, the appellant will be entitled to seek police help to
recover possession.
6. The appeal is allowed in the above terms. There will,
however, be no order as to costs.
………………………………J.
(DALVEER BHANDARI
…………………………….J.
(HARJIT SINGH BEDI
New Delhi,
Dated: May1, 2009