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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION  

CIVIL APPEAL NO. 1362   OF  2013

(Arising out of SLP(C) No.33438/2010)

KAILASH PALIWAL                            Appellant(s)

                    :VERSUS:

SUBHASH CHANDRA AGRAWAL                    Respondent(s)

O R D E R

1. Leave granted.

2. This  appeal  arises  out  of  an  order  dated  

26.8.2010 passed by the High Court of Madhya Pradesh  

at  Indore,  whereby  First  Appeal  No.752  of  2008,  

filed by the respondent herein, has been allowed and  

the judgment of the Trial Court in O.S. No.9A/2008  

reversed.   

3. It  is  not,  in  our  opinion,  necessary  to  

recapitulate  the  factual  backdrop  in  which  the  

controversy arises, in detail. The order passed by  

the Trial Court as well as the Fist Appellate Court,  

sufficiently do that part. All that we need mention  

is that a suit seeking a decree for possession was

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filed by the plaintiff-appellant herein against the  

defendant-respondent  on  the  ground  that  the  

defendant-respondent was in occupation of the suit  

property despite termination of his tenancy by the  

plaintiff-appellant. The defendant-respondent herein  

disputed  the  alleged  tenancy  pleaded  by  the  

appellant  and  set  up  his  own  title  based  on  a  

certain oral sale in his favour. The Trial Court  

eventually  came  to  the  conclusion  that  the  jural  

relationship of  landlord &  tenant was  established  

between  the  parties  and  accordingly   decreed  the  

suit in favour of the appellant.   

4. Aggrieved by the decree passed by the Trial  

Court, the defendant-respondent preferred a regular  

first appeal before the High Court which, as noticed  

above, was allowed by the High Court reversing the  

judgment and decree passed by the Trial Court.  The  

High Court was of the view that the relationship of  

landlord and tenant had not been established by the  

plaintiff-appellant and the suit, on that basis, was  

not maintainable. The High Court went a step further  

and remanded the matter back to the Trial Court with  

a direction that the Trial Court would try the suit

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as a suit for possession based on title in which the  

defendant-respondent herein shall be free to raise  

all contentions available to him, including a plea  

based  on  adverse  possession.  The  present  appeal  

assails the correctness of the judgment and order.   

5. Learned counsel for the appellant submitted  

that the High Court was in error in directing that  

the defendant-respondent was entitled to set up a  

plea  based  on  adverse  possession  or  that  the  

plaintiff's  title  could  be  disputed  by  the  

defendant-respondent on the basis of the oral sale  

set up by him. Be that as it may, the plaintiff-

appellant would, according to the learned counsel,  

prefer to file a fresh suit on the basis of title to  

the property by withdrawing the suit out of which  

the present appeal arises. He submitted that since  

the High Court had recorded a specific finding that  

the relationship of landlord and tenant had not been  

established by the plaintiff, the only option left  

for the plaintiff was to sue for possession based on  

the title of the property.  That option, according  

to the learned counsel, could be exercised by way of  

filing  a  fresh  suit  instead  of  the  suit  for

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possession based on tenancy being converted into a  

suit for possession based on title.  

6. Learned counsel for the defendant-respondent  

had no objection to the withdrawal of the suit by  

the  plaintiff-appellant,  provided  he  is  granted  

liberty to raise all such pleas as are open to him  

in law and on facts.   

7. In  the  circumstances,  therefore,  we  allow  

this  appeal,  set  aside  the  judgment  and  orders  

passed by the Courts below, permit the plaintiff-

appellant to withdraw the suit filed by him and file  

a  fresh  suit  based  on  title  to  the  property.  We  

reserve liberty to the defendant-respondent to raise  

all such defences as may be open to him in law and  

on facts.    

8. Parties are directed to bear their own costs.

.........................J (T.S. THAKUR)

...........................J (SUDHANSU JYOTI MUKHOPADHAYA)

New Delhi; February 15, 2013.