TMI Blog2003 (5) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... w, though fortunately such hope of the defendant proved to be only a nightmare. The case has witnessed even contempt proceedings being initiated. Criminal cases too have germinated as off-shoot branches. We have heard the learned senior counsel for the appellant and the respondent appearing in person, controlling the proceedings firmly and with patience, so as to save them from drifting away towards initiation of yet other contempt proceeding. We told the respondent and the learned counsel for the appellant that we shall do justice, as duty bound we are, notwithstanding the fact that we feel hurt by the conduct of the plaintiff respondent appearing in-person, and in our desire to do so we have not acceded to the prayer of the learned senior counsel for the appellant for withholding the hearing in the appeal until the contempt has been purged by the respondent as we felt that withholding the hearing in this appeal would only contribute to further frustration in the parties, add an undeserved length of life to an already old litigation, and may probably give rise to other off-shoot proceedings adding to the bulk of ever-mounting arrears of cases. The root cause of the dispute should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt prohibitory injunction from raising any further construction; (v) costs, and (vi) such other relief as the Court may deem fit and proper in the facts and circumstances of the case and to which the plaintiff may be found entitled. 3. The plaint was accompanied by a prayer for issuance of ad-interim injunction under Order 39 Rules 1 and 2 of the CPC preventing the defendant from raising any construction over the suit property. 4. The day on which the plaint was presented, it appears that the presiding Judge was on leave and so the matter came to be placed before an in-charge Judge, may be as per the rules or practice prevalent in the State of Rajasthan. On an application filed by the plaintiff he directed one Shri Pratap Singh, Advocate to be appointed as an Advocate Commissioner to visit the suit property and submit a report as to the factual status thereof. The learned Advocate Commissioner visited the site of dispute from 6 to 7 p.m. on 9.2.1987 itself. The plaintiff-Panjwani and his advocate were present 4 to 5 persons were present on the plot, of whom one was male and others were females. They refused to interact with the Commissioner. Rather they threatened the visitor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, Advocate Commissioner was in the absence of the defendant, and there was some element of urgency involved in the inspection on that day so as to bring on the record of the Court the status of the property on the date of the institution of the suit. Shri S.K. Kataria, Advocate, now appointed as Advocate Commissioner, carried out inspection of the suit property on 25.2.1987 in the presence of the plaintiff and a representative of the defendant, probably his special power of attorney holder. Shri Kataria also drew up a sketch of the suit plot incorporated in his report. The identity of the plot is the same but with a little change as to its status. Building material consisting of bricks, sand and stones were lying on the plot. In the north-west corner, instead of the hut, a temporary kitchen made of bare bricks had come up and in the north-east corner covering an area of 6x12 ft. two small rooms and a platform had come up which were newly constructed. The report drawn up by the Commissioner bears the signature of the plaintiff and the representative of the defendant. Here itself we may observe that the second report by the Advocate Commissioner, the correctness whereof has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cross-examined the plaintiff's witnesses because of the pendency of his civil revision in the High Court and as the civil revision was dismissed he may be given opportunity of cross-examining the plaintiff's witnesses. On 2.5.1995, the Court allowed defendant's application subject to payment of costs and subject to the term that before the cross-examination is commenced the plaintiff will have a right, if he so desires, to put to his witnesses additional questions by way of examination-in-chief. 11. At this stage, the In gentility of the defendant-appellant comes into play. On 2.5.1995, he moved an application proposing to place on record a 'written statement under Order 8 Rule 6A of CPC'. It was alleged therein that the plaintiff was claiming the suit premises under an agreement dated 1.12.1985 entered into by Shri Niwas Vaidhya based on letter of allotment dated 26.6.1980, issued by Sindhunagar Co-operative Society Ltd., which letter of allotment is false and forged and, therefore, it has become necessary to have declared the letter of allotment dated 26.6.1980 and the agreement dated 1.12.1985 null and void. Copies of the application seeking leave of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision in the High Court. The defendant failed to produce any order of stay from the High Court. The Trial Court noticed in its order dated 21.12.2000 the previous order of the High Court dated 11.10.2000 whereby the High Court had directed the case to be disposed of within a period of three months, which time-limit was coming to an end. By judgment and decree dated 8.1.2001 the Trial Court directed the suit filed by the plaintiff to be decreed. The plaintiff was declared owner of the suit plot and the defendant was directed to restore possession of the plot within a period of one month from the date of the decree failing which the plaintiff would be entitled to have the encroachment and the illegal construction whatever be of the defendant, to be demolished and removed at the cost of the defendant. 14. The defendant preferred First Appeal against the judgment and decree dated 8.1.2001 which was registered as FA No. 3/2001. It was heard and dismissed by Fifth Additional District Judge, Jaipur, by judgment and decree dated 7.3.2001. The defendant preferred Second Appeal which was dismissed in limine on 16.4.2001, by the High Court forming an opinion that the appeal did not invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a civil suit of that class on availability of a few grounds. An exclusion of jurisdiction of Civil Court is not to be readily inferred. (See Dhulabhai etc. v. State of Madhya Pradesh and Anr. - (1963) 3 SCR 662). An objection as to the exclusion of Civil Court's jurisdiction for availability of alternative forum should be taken before the Trial Court and at the earliest failing which the higher Court may refuse to entertain the plea in the absence of proof of prejudice. 20. Sections 75 and 137 of Rajasthan Cooperative Societies Act, 1965 provide as under: 75. Disputes which may be referred to arbitration. - (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management, or the business of a co-operative society arises - (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society, or (c) between the society or its committee and any past committee, any officer, agent or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay impose. (3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever. 21. In the present case there is nothing to show that the defendant is also a member of the Society or claiming under a member. The plaintiff does not have any dispute with another member of the Society or the Society itself. The question of jurisdiction is to be determined primarily on the averments made in the plaint. The plaint as framed by the plaintiff is for declaration of title as owner (and in the alternative, his possessory title) and seeking restoration of possession, as also issuance of mandatory and preventive injunctions against a recent encroachment. Neither is it a dispute between the parties referred to in Clauses (a) to (e) of Sub-section (1) of Section 75, nor does the nature of the dispute fall in Clauses (a) to (c) of Sub-section (2) of Section 75, so as to be one excluded from the domain of a Civil Court. At no stage of the proceedings has the defendant-appellant taken any objection to the jurisdiction of the Civil Court to try the suit. We are not satisfied--even prima facie--to hold that the Civil Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '. We would like to state, by way of clarification, that the provisions of CPC which are being considered herein are as amended by Act No. 104 of 1976 only, (excluding from consideration the amendments incorporated by Act No. 46 of 1999 with effect from 1.7.2002). According to Rule 1 of Order VIII the defendant shall, at or before the first hearing or within such time as the Court may permit, present a Written Statement of his defence. Under Rule 2 the defendant must raise by his pleadings inter alia all matters which show the suit not to be maintainable and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise. Under Rule 6 the defendant may at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off subject to certain limitations. Rules 6A, 6B and 6C (introduced by the Amendment Act, 1976) read as under:- 6A.(1) A defendant in a suit may in addition to his right of pleading a set-off under Rule 6, set-up by way of counterclaim against the claim of the plaintiff, any right (SIC) respect of a cause of action accruing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -off under Rule 6,.....before the defendant has delivered or before the time limited for delivery of defence has expired . These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under Rule 6A must find its place in the written statement. The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counter-claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant would have succeeded in indirectly achieving the reopening of the trial in which effort, when made directly, he had already failed. There being no written statement of the defendant available on record and the right of the defendant to file the written statement having been closed, finally and conclusively, he could not have filed a counter-claim. 30. In Mahender Kumar and Anr's case (supra) counter- claim was sought to be brought on record after the filling of a written statement which was turned down by the Trial Court upon a misreading of Rule 6-A(1) that the counter-claim filed after the filing of the written statement was ipso facto not maintainable. This Curt upset such erroneous view by clarifying the legal position, apparent on a bare reading of the relevant provision that the only requirement of Rule 6-A(1) was that the cause of action for the counter-claim should have arisen before the filing of the written statement and if that was so, the counter-claim was not simply excluded. In Shanti Rani Das Dewanji's case (supra), the brief order of this Court deals with the situation that the right to file a counter-claim does not come to an end by filing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly, that the plaintiff being entitled to further relief of specific performance his suit for mere declaration of title, recovery of possession and injunction was not maintainable, and secondly, that on the averments made in the plaint the appropriate remedy of the plaintiff was to have filed a suit for specific performance of the contract for sale in his favour entered into by Shri Niwas Vaidhya and unless and until he had perfected his title by execution of sale deed he could not have been declared the owner of the property. 33. So far as the plea of bar as to maintainability of suit for failure to seek further relief is concerned, we cannot find fault with the plaint as framed. The defendant was alleged to be a rank trespasser who was in the process of committing a trespass and was allegedly raising unauthorized construction over the property neither owned nor legally possessed by him. The relief of specific performance is not a further relief to which the plaintiff is entitled or which he could have sought for against this defendant. Thus, from the point of view of the present defendant, we cannot find any such defect or infirmity in the relief sought for by the plaintiff a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Anr. v. Pralhad Bhairoma Suryavanshi (dead) by LRs and Ors., ). Section 6 of the Specific Relief Act, 1963, provides for any person dispossessed without his consent of immovable property otherwise than in due course of law being entitled to claim and successfully sue for recovery of possession thereof, notwithstanding any other title that may be set up in such suit if the suit is brought before the expiry of six months from the date of dispossession except against the Government. Article 64 of Limitation Act 1963 contemplates a suit for possession of immovable property based on previous possession, and not on title, being brought within twelve years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguished from proprietary title. The law discourages people from taking the law into their own hands, howsoever good and sound their title may be. Possession is nine points in law and law respects peaceful and settled possession. Salmond states in Jurisprudence (12th Edition)- These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. (Para 14) The Court further held-- When the facts disclose no title in either party, possession along decides. The submission that a suit on bare possession cannot be maintained after the expiry of 6 months was termed by the Court as 'unsubstantial' and the plea that a trespasser has a right to plead jus tertii was branded as 'equally unfounded' by this Court (vide para 15). M. Hidayatullah, J., as His Lordship then was, speaking for the Court quoted with approval the maxim Possessio contra omnes valet praeter eu cul lus sit possessionis (He that hath possession hath right against all but him that hath the very right). (Para 20) Taking stock of English decisions and having noted what appeared to be a title divergence in jurisprudential thoughts, His Lordship opined that the controversy must be taken to have been finally resolved by Perry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmer may be entitled to restoration of possession, because the law respects peaceful possession and frowns upon the person who takes the law in his own hands. 37. In the present case, in the ex-parte proceedings the plaintiff examined himself as PW1. He proved the contract for sale dated 1.12.1985 (Exhibit P/1) entered into between Shri Niwas Vaidhya and himself. The original letter of allotment from Society (Exhibit P/2) handed over to him by his predecessor-in-title was tendered in evidence. He deposed to having been inducted into possession of the plot by Shri Niwas Vaidhya and having constructed the boundary wall in December 1985. He stated that he was the person rightfully entitled to the plot and yet was sought to be dispossessed by the defendant otherwise than in due course of law. Narinder Singh Rathore, PW2 proved the notorization of the agreement (Exhibit P.1). Late Kishanlal, the father-in-law of Narinder Singh Rathore, PW2 was the Notary Public who had expired on 7.12.1993, sometime before the date of recording of ex-parte evidence. He brought with him the Notary Register Exhibit P/B maintained by late Kishan Lal and proved the same, also tendered the copy thereof in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Niwas Vaidhya fully supporting the plaintiff upto the date of his being examined in the Court seems to have changed his mind subsequently. There is no pleading and no proof of the defendant having any title - much less a title better than that of the plaintiff - to the suit property. He could not have dispossessed the plaintiff nor interfered with the peaceful possession and enjoyment of the plot by the plaintiff. The plaintiff is, therefore, entitled to a declaration of his possessory title that he was in peaceful possession and enjoyment of the property until 8.2.1987 on which date his possession was threatened by the defendant by attempting to raise unauthorized construction over the property. The judgment and decree passed by the Trial Court and maintained by the First Appellate Court and the High Court need to be modified suitably to bring it in conformity with the finding arrived at by us herein. 40. The appeal filed by the defendant is partly allowed. The decree of declaration that the plaintiff-respondent is owner of the suit property is set aside. Instead it is declared that from 1.12.1985 to 8.2.1987 the plaintiff was in peaceful possession of the suit plot pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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