KAILASH PALIWAL Vs SUBHASH CHANDRA AGRAWAL
Bench: T.S. THAKUR,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-001362-001362 / 2013
Diary number: 36860 / 2010
Advocates: Vs
RUCHI KOHLI
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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.