REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. _________OF 2009 [Arising out of Special Leave Petition (Civil) No. 10194 of 2007]

BISWANATH AGARWALLA     … APPELLANT

Versus

SABITRI BERA & ORS.    … RESPONDENTS

WITH  CIVIL APPEAL NO. _________OF 2009

[Arising out of Special Leave Petition (Civil) No. 15058 of 2007]

BISHWANATH AGARWALLA     … APPELLANT

Versus

SABITRI BERA & ORS.    … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Whether  a  Civil  Court  can  pass  a  decree  on  the  ground  that  the  

defendant is a trespasser in a simple suit for eviction is the question involved  

in this appeal.  

It arises out of a judgment and order dated 17th August, 2006 passed  

by a learned single judge of the Calcutta High Court in C.O.A. No. 253 of  

2006 in RVW No. 2671 of 1996.

3. The suit premises is a shop situate in a small town commonly known  

as Raghunathpur in the district of Purulia.  Appellant herein is said to have  

entered into possession of the suit premises in the year 1970.  Originally, he  

claimed to have come into possession in the said premises pursuant to or in  

furtherance of an agreement for sale entered into on or about 18th March,  

1970  by  and  between  him  and  S.K.  Abdul  Wahid  Molla,  the  father  of  

Safiqur Rahaman.   

The respondents purchased the suit premises from Safiqur Rahaman  

on 21st July, 1980 by three registered deeds of sale.   

4. Indisputably, the respondent No.1 filed a suit being Title Suit No.88  

of  1990  in  the  Court  of  Munsif,  Raghunathpur,  District  Purulia  (West  

Bengal) inter alia praying for eviction of the appellant from the suit premises  

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and  mesne  profit  claiming  themselves  to  be  the  owners  and  landlords  

thereof.  

He  prior  to  institution  of  the  suit  also  served  a  notice  upon  the  

appellant in terms of Section 106 of the Transfer of Property Act asking him  

to  handover  peaceful  and  vacant  possession  alleging  that  he  had  been  a  

tenant  therein  on  a  monthly  rental  of  Rs.45/-  under  his  vendor  Safiqur  

Rahaman.   

5. Appellant  denied  and  disputed  that  he  had  ever  been  a  tenant  of  

Safiqur Rahaman at any point of time.  The relationship between them was,  

thus, denied and disputed.   

6. The learned trial  judge  having regard to  the  rival  pleadings of  the  

parties framed the following issues:

“1) Have the plaintiffs any cause of action to bring this suit?

2) Is the suit maintainable in its present form?

3) Is the suit barred by law of limitation?

4) Is the suit barred by provisions of the S.R. Act?

5) Is the suit barred by the principle of waiver, estoppel and  acquiescence?

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6) Have the plaintiffs landlord and tenant relationship with  the defendant?

7) Have the plaintiffs served valid notice u/s 106 of the T.P.  Act?

8) Have  the  plaintiffs  right,  title  and  interest  in  the  suit  property?

9) Are the plaintiffs entitled to get the decree as prayed for?

10) To what other reliefs, if any are the plaintiffs entitled?

The learned trial judge opined:

i. The plaintiffs have proved to be the owner of the suit property  

having  purchased  the  same from the  admitted  owner  S.K.  Abdul  Wahid  

Molla;

ii. The defendant has failed to prove his independent title over the  

suit property.

iii. The plaintiffs have failed to prove the relationship of landlord  

and tenant in between the plaintiffs and the defendant  

iv. The plaintiffs having failed to prove the tenancy are not entitled  

to a decree.   

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7. The respondent No.1 preferred an appeal thereagainst marked as Title  

Appeal No. 20/1993.  By a judgment and order dated 31st May, 1995, the  

learned Appellate Court held that although the plaintiffs have failed to prove  

the  relationship  of  landlord  and  tenant  by  and  between  them  and  the  

defendant or that the defendant had been let into the tenanted premises on  

leave and license basis, the plaintiffs - respondents are entitled to a decree  

for possession on the basis of his general title.   

8. The  learned  First  Appellate  Court  also  rejected  the  appellant’s  

contention that he has acquired title by adverse possession.   

It was held:

“It is needless to mention the learned Munsif of the  court  below in  the  body of  the  judgment,  at  the  time of  discussion (page 20 begins)  issue nos.  6  and 8 on being satisfied by the plaintiffs chain of  documents of their title over the suit premises and  in such a position, the plaintiffs were entitled to get  the decree for recovery of possession as owner of  the  suit  premises  and  in  this  regard  decision  so  referred by the learned lawyer of the appellants as  reported in AIR 1984 ROC 78 Allahabad page A  35,  and  other  decision  so  reported  in  AIR 1984  Allahabad page 66 completely on the flat point of  the suit in favour of the plaintiffs and where it has  been  clearly  stated  in  a  suit  for  eviction  by  the  plaintiffs against the defendant under the relevant  provision of Transfer of Property Act where title of  

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the plaintiffs over the suit  property being proved  and  the  relationship  of  landlord  and  tenant  not  proved,  in  spite  of  the  same,  the  plaintiffs  or  proving  the  landlords  title  are  entitled  to  get  recovery of possession of the suit  premises from  the defendant as owner thereof and what in fact,  happened in the given facts and circumstances, out  of which this appeal arose.  

xxx xxx xxx

For the discussion made above and on the  existing materials on the case record and when the  plaintiffs proved their title and ownership over the  suit premises by virtue of Ext. 4 series and on the  other  hand  the  defendant  as  per  their  written  statement  failed  and  neglected  to  discharge  his  onus on proving his right or permanency in the suit  premises as tenant or otherwise, the plaintiffs suit  must  succeed  and  the  findings  of  the  learned  Munsif  in  deciding  the  issue  Nos.  6  and  8  particularly the contents of the issue no. 6 are not  at all satisfactory and cannot be sustained in law in  the given facts and circumstances of the case and  as such the irresistible conclusion from the above  discussion  is  that  the  judgment  and  decree  so  passed by the Ld. Munsif is not tenable in law and  the  plaintiffs  are  entitled  to  get  the  decree  for  eviction against  the defendants.   As a result,  the  appeal succeed in part on contest. “

9. By reason of the impugned judgment, the High Court dismissed the  

Second Appeal preferred by the appellant, opining:

“I am sorry to say that such submission on the part  of the appellant cannot be accepted.  A person can  

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be  in  possessory  right  in  various  ways  i.e.  licensee/tenant/permissible  possession  holder/  adverse  possession  holder/trespasser.   But,  the  onus heavily lies with the tenant to prove in what  capacity  he  is  occupying  the  premises  as  the  landlord is not in a position to claim any recovery  of the possession as against him since there is no  landlord  and  tenant  relationship.   In  the  instant  case, the schedule land under the deed of gift and  so-called agreement for sale are different.  So far  as the execution of Deed of gift is concerned, it has  been sufficiently proved.  So far as payment of rent  is  concerned,  that  has  been  stated  in  the  cross- examination.   The only failure is  about the non- disclosure  of  the  rent  receipt.   But,  simply such  statement  will  not  develop  the  case  of  adverse  possessory  right  of  the  tenant,  which  he  has  claimed  now  before  the  second  appellate  court.  Therefore, when he is not claiming to be a tenant  at best, he can claim as a licensee of the premises  in question whereunder the title of the landlord has  already  been  proved  by  virtue  of  the  document.  Therefore,  such  licensee  is  estopped  from  questioning the title of the landlord as per Section  116 of the Indian Evidence Act, 1872.  Tenancy is  not proved, therefore, he is not a tenant.  He is not  claiming to be the licensee although he could have,  therefore, I cannot compel him to be licensee.  The  remaining, if any, is permissive occupation, which  is as good as license.  However, it is well settled  that the permissible occupation cannot be regarded  as adverse possessory right. Adverse possession is  not proved.  Therefore, the remaining capacity, if  any, is trespasser.  It is far to say that a trespasser  can challenge the title of the landlord.  Under such  situation the presumption, which has been drawn  by  the  lower  appellate  court  is  an  appropriate  presumption on that score.”

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10. A review application filed thereagainst by the appellant has also been  

dismissed by the High court.   

Both the aforementioned orders are in question before us.

11. Mr.V. Prabhakar, learned counsel appearing on behalf of the appellant  

would contend:

i. No substantial questions of law having been formulated by the  

High Court, a jurisdictional error has been committed by it in  

passing the impugned judgment.   

ii. The relationship of landlord and tenant and/or the licensor and  

licensee having not  been proved,  the High Court  as  also the  

First Appellate Court committed a serious error in passing the  

impugned judgment  on  the  premise  that  the  appellant  was  a  

trespasser.

12. Mr.  R.K.  Gupta,  learned  counsel  appearing  on  behalf  of  the  

respondents,  on  the  other  hand,  would  support  the  impugned  judgment,  

contending:

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i. Even in a suit for eviction, the plaintiffs would be entitled to  

obtain a decree for possession relying on or on the basis of his  

title.

ii. In a suit for eviction, it is for the defendant to show that he has  

a right to remain on the tenanted premises either as a permanent  

tenant or otherwise.

13. The plaintiffs served a notice on the defendant under Section 106 of  

the  Transfer  of  Property  Act.   Such  notice  evidently  was  served  on  the  

premise  that  the  defendant  –  appellant  was  his  tenant.   He  denied  and  

disputed the same.  The plaintiff in his plaint disclosed the cause of action  

for the suit having arisen on and from 1st October, 1990 from which date the  

monthly tenancy had ceased to exist.  The plaintiff prayed for grant of mesne  

profits  at  the rate  of  Rs.3/-  for each day for  wrongful  occupation of  the  

premise as after the termination of tenancy the defendant was to be treated as  

a trespasser.   

14. Paragraph 10 of the plaint reads as under:

“10. That  for  the  purpose  of  jurisdiction  and  court fee the value of this suit for prayer (A) is laid  at Rs.  (sic) For eviction a tentative court fee of  

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Rs.100/-  is  paid  for  future  mesne  profits  to  a  decree.”  

How  much  court  fee  was  paid  and  on  what  basis  has  not  been  

disclosed.

The reliefs prayed for by the plaintiffs are:

“a) A decree for eviction of the defendant from  the  schedule  premises,  be  passed  against  the  defendants.

b) A decree for mesne profits in case eviction  is allowed, at the rate of Rs.3/- per day from (sic)  be passed against the defendants as scheduled in  schedule-II  and  III  below  and  for  future  mesne  profits uptil delivery of possession of suit property  at the rate the court is pleased to order for which  tentative court fee is paid at present.”

15. It is not clear what amount of court fee was paid.  Presumably, the  

court fee was paid of one year’s rent that is calculated on the basis of twelve  

months’ rent at the rate of Rs.45/-  in terms of Section 7(xi)(cc) of the Court  

Fees’ Act, 1870.   

Section 4 of the Court Fees’ Act, 1870 reads as under:

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“4. Fees  on  documents  filed,  etc.,  in  High  Courts in their extraordinary jurisdiction;-  No  document of any of the kinds specified in the First  or  Second  Schedule  to  this  Act  annexed,  as  chargeable  with  fees,  shall  be filed,  exhibited  or  recorded in, or shall be received or furnished by,  any of the said High Courts in any case coming  before  such  Court  in  the  exercise  of  its  extraordinary original  civil  jurisdiction;  or  in the  exercise  of  its  extraordinary  original  criminal  jurisdiction;

in  their  appellate  jurisdiction;  -  or  in  the  exercise of its jurisdiction as regards appeals from  the judgments (other than judgments passed in the  exercise of the ordinary original civil jurisdiction  of  the Court)  of  one or  more Judges of the said  Court, or of a division Court;

or  in  the  exercise  of  its  jurisdiction  as  regards  appeals  from  the  Courts  subject  to  its  superintendence;

as Courts of reference and revision. – or in  the  exercise  of  its  jurisdiction  as  a  Court  of  reference or revision’

unless in respect of such document there be  paid a fee of an amount not less than that indicated  by either of the said Schedules as the proper fee for  such document.”

For  obtaining  a  decree  for  recovery  of  possession,  court  fees  are  

required to be paid in terms of Section 7(v) of the Court Fees’ Act, 1870 i.e.,  

according to the value of the subject matter of the suit.  

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16. We will have to proceed on the basis that whereas the plaintiff proved  

his title, the defendant could not.  The learned trial judge has held that the  

defendant could not prove the agreement of sale.   

The  High  Court  formulated  the  following  points  in  the  form  of  

question which are as under:

“6. Have the plaintiffs landlord and tenant relationship with  the defendant?

7. Have the plaintiffs served valid notice u/s 106 of the T.P.  Act.”

17. Was, in the aforementioned situation, a suit for recovery of possession  

maintainable is the question.

The landlord in a given case although may not be able to prove the  

relationship of landlord and tenant, but in the event he proves his general  

title, may obtain a decree on the basis thereof.  But in a case of this nature, a  

defendant  was  entitled  to  raise  a  contention  that  he  had  acquired  an  

indefeasible title by adverse possession.  

In Radha Devi and Ors. v. Ajay Kumar Sinha [1998 (2) BLJR 1061],  

the Patna High Court accepted that a landlord is entitled to obtain a decree of  

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eviction  on  the  basis  of  his  general  title,  though he  could  not  prove  the  

relationship of landlord and tenant.  It was opined:

“…In other words, where there is relationship of  landlord and tenant, order of eviction be passed on  the existence of any one of the grounds mentioned  in Section 11 of the said Act. It is, therefore, clear  that  proof  of  relationship  of  landlord  and  tenant  gives right to a landlord to get an order of eviction  under the provisions of the aforesaid Act…”

In Champa Lal Sharma v. Smt. Sunita Maitra [(1990) 1 BLJR 268], it  

was held:

“It  is  also  well  settled  that  one  such  relationship  is  admitted  or  established,  tenant  would  be  estopped  and  precluded  from challenging the title of the landlord and  if he does so, under the general rule, make  himself liable for eviction on that ground.

It, therefore, logically follows that a finding  of existence of relationship of landlord and  tenant is a sine qua non for passing a decree  for eviction against a tenant except in a case,  as  mentioned  hereinbefore  the  plaintiff  on  payment of ad valorem Court fee may obtain  a  decree  for  eviction  on  the  basis  of  his  general title.

*** *** ***

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It is, therefore, evident that the court has to  ultimately decide the question as to whether  the  plaintiff  in  case  his  title  is  in  dispute,  would  be  entitled  to  withdraw the  rent  so  deposited by the tenant or not.  It, therefore,  makes  the  position,  in  my  opinion,  absolutely clear that before the said question  is decided finally so as to enable the court to  come  to  a  decision  whether  the  plaintiff  landlord is entitled to a decree for eviction  or not must come to the finding that there  exists a relationship of landlord and tenant  by  and  between  the  plaintiff  and  the  defendant,  if  such  an  issue  is  raised.   In  absence of  any such finding the court  will  have  no  jurisdiction  to  pass  a  decree  of  evidence as against the defendant in such a  suit.”

[See also Deepak Kumar Verma and Ors. v. Ram Swarup Singh 1992  

(1) BLJR 102]

A defendant as is well  known may raise inconsistent  pleas so long  

they are not mutually destructive.   

In Gautam Sarup v. Leela Jetly and Ors. [(2008) 7 SCC 85], this Court  

held:

“22. What, therefore, emerges from the discussions  made hereinbefore is that a categorical admission  cannot be resiled from but, in a given case, it may  

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be explained or clarified. Offering explanation in  regard  to  an  admission  or  explaining  away  the  same, however, would depend upon the nature and  character  thereof.  It  may  be  that  a  defendant  is  entitled to take an alternative plea. Such alternative  pleas, however, cannot be mutually destructive of  each other.”

An issue as to whether the defendant was a trespasser or not, thus, was  

required to be framed.   

18. Mr.  Gupta,  however,  would  rely  upon  a  decision  of  this  Court  in  

Bhagwati  Prasad  v.  Shri  Chandramaul  [(1966)  2  SCR  286].  

Gajendragadkar, C.J. therein was dealing with the rules of pleadings.  It was  

opined  that  although  the  rules  of  pleadings  should  be  adhered  to;  when  

parties go to the trial knowing fully well the points he is required to meet,  

the Court may not insist on the strict application thereof, stating:

“ When Mr. Setalvad was pressing his point  about  the  prejudice  to  the  defendant  and  the  impropriety  of  the  course  adopted  by  the  High  Court  in  confirming the decree  for  ejectment  on  the ground of licence,  we asked him whether he  could suggest to us any other possible plea which  the  defendant  could  have  taken  if  a  licence  was  expressly pleaded by the plaintiff in the alternative.  The  only  answer  which  Mr.  Setalvad  made  was  that in the absence of definite instructions, it would  not be possible for him to suggest any such plea. In  

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our opinion, having regard to the pleas taken by  the defendant in his written statement in clear and  unambiguous language, only two issues could arise  between the parties : is the defendant the tenant of  the plaintiff,  or is he holding the property as the  licence subject to the terms specified by the written  statement? In effect, the written statement pleaded  licence,  subject  to  the  condition  that  the  licence  was to remain in possession until the amount spent  by him was returned by the  plaintiff.  This  latter  plea has been rejected, while the admission about  the  permissive  character  of  the  defendant's  possession remains.  That  is  how the High Court  has looked at the matter and we are unable to see  any error of law in the approach by the High Court  in dealing with it.  

In  support  of  its  conclusion that  in  a  case  like  the  present  a  decree  for  ejectment  can  be  passed  in  favour  of  the  plaintiff,  though  the  specific  case  of  tenancy  set  up  by  him  is  not  proved, the High Court has relied upon the two of  its earlier Full Bench decisions. In Abdul Ghani v.  Musammat Babni I.L.R. 25 All. 256 the Allahabad  High Court took the view that in a case where the  plaintiff asks for the ejectment of the defendant on  the  ground that  the  defendant  is  a  tenant  of  the  premises,  a  decree  for  ejectment  can  be  passed  even though tenancy is not proved, provided it is  established that the possession of the defendant is  that of a licensee. It is true that in that case, before  giving effect to the finding that the defendant was  a  licensee,  the  High  Court  remanded  the  case,  because it appeared to the High Court that that part  of the case had not been clearly decided. But once  the finding was returned that the defendant was in  possession as a licensee,  the High Court  did not  feel  any  difficulty  in  confirming  the  decree  for  

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ejectment, even though the plaintiff had originally  claimed ejectment on the ground of  tenancy and  not specifically on the ground of licence. To the  same effect is the decision of the Allahabad High  Court in the case of Balmakund v. Dalu I.L.R. 25  All. 498”

(Emphasis supplied).

The said decision itself is an authority for the proposition that it was  

necessary  to  bring  on  record  some  evidence  that  the  defendant  was  a  

licensee and he could not  have raised any other  alternative plea.   It  was  

followed by a learned Single Judge of the Allahabad High Court in  Shri  

Ram  &  Anr.  vs.  Smt.  Kasturi  Devi  &  Anr. [AIR  1984  Allahabad  66],  

stating:

“15. Lastly, it was argued for the appellants that  there is no relationship of landlord and tenant as  between Smt. Kastoori Devi on the one hand and  Sri Ram or Satya Pal. on the other. The trial court  was of the view that no such relationship has been  made out. This finding was, however, reversed by  the lower appellate  court  and not without cogent  basis. Sri Ram admits that one Desh Rai was the  tenant in this part of the house who vacated. Sri  Ram  thereafter  came  in  the  said  portion  of  the  house. In cross-examination, he admitted also that  it was agreed between him and Smt Kastoori Devi  what  would  be  treated  as  the  rent  for  the  said  portion. Further the case of the appellants is that on  January 20. 1970, Sri Ram got this portion allotted  

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in his name. All these are pointers in the direction  that there was relationship of landlord and tenant  and  not  that  Sri  Ram  has  been  residing  in  that  portion of the house as licencee of Smt. Kastoori  Devi.  This  apart  the suit  for eviction brought  by  Smt. Kastoori Devi against them does not fail even  if it  is assumed that there was no relationship of  landlord or of tenant or that Sri  Ram was in the  position of a mere licensee. The licence has been  determined  by  registered  notice  given  by  Smt.  Kastoori Devi already. In the plaint. Smt. Kastoori  Devi referred expressly to her title to the house by  virtue  of  the  will  executed  in  her  favour  by  the  husband. The law is settled that even if Sri Ram  was the licensee, Smt. Kastoori Devi can, on the  basis of title claim eviction even though she has set  up the case that there was the relationship of the  landlord and tenant and assumed that the same is  not established, vide Bhagwati Pd. v. Chandramaul  AIR  1966  SC  735.  Abdul  Ghani  v.  Mst.  Babni  (1903) ILR 25 All 256 (FB) Bal Mukund v. Dalu  (1903) ILR 25 All 498 (FB).”

(Emphasis supplied)

19. Mr. Gupta would further rely upon a decision of the Calcutta High  

Court in  Hajee Golam Hossain Ostagar vs.  Sheik Abu Bakkar [AIR 1936  

Calcutta 351] to contend that the defendant in a suit for ejectment was bound  

to show that he had a right to remain on a land permanently wherefor the  

onus would be on him.  That case related to a agricultural tenancy.  A simple  

tenancy can be terminated by service of  notice under Section 106 of  the  

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Transfer of Property Act.  Once a valid notice is served, the tenant becomes  

trespasser.   

The situation, however, has undergone a sea change after almost all  

the States have enacted the premises tenancy Acts governing the conditions  

of tenancy in respect of house premises.  The State of West Bengal has also  

enacted the West Bengal Premises Tenancy Act, 1956.

In terms of the 1956 Act, the tenant upon termination of tenancy does  

not become a trespasser.  He becomes a statutory tenant (loosely called).

When, however, a defendant is a trespasser and is sued as such, the  

situation would be totally different.   Plaintiff must file a suit having regard  

to the cause of action thereof.  The Court, in a given case, mould the relief  

having regard to the provisions of Order VII Rule 7 of the Code of Civil  

Procedure,  but the said provision cannot be applied in a situation of this  

nature.

20. We, therefore, are of the opinion that it is not a case where by non  

framing of an issue as to whether the defendant – appellant was a trespasser  

or not he was not prejudiced.  Had such an issue been framed he could have  

brought  on record evidence to establish  that  he had the requisite  animus  

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possidendi, particularly in view of the fact that it has been held by the courts  

below that he was not put in possession by the  predecessor-in-interest of the  

plaintiffs in terms of an agreement for sale or otherwise. If he has not been  

able to prove the agreement, he could have taken the other plea, i.e., he has  

acquired indefeasible title by adverse possession. He is said to have been in  

possession  of  the  suit  premises  for  more  than  twelve  years  prior  to  the  

institution  of  the  suit.   The  question  as  to  whether  he  acquired  title  by  

adverse possession was a plausible plea. He, in fact, raised the same before  

the appellate court.  

21. Submission before the First Appellate Court by the defendant that he  

had acquired title by adverse possession was merely argumentative in nature  

as neither there was a pleading nor there was an issue.  The learned trial  

court had no occasion to go into the said question.  

22. We, therefore, are of the opinion that in a case of this nature an issue  

was required to be framed.  Furthermore, the High Court while determining  

the issues involved in the Second Appeal should have formulated questions  

of law.   

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In Dharam Singh vs.  Karnail Singh & Ors. [(2008) 9 SCC 759], this  

Court held:

“6. In  response,  learned  Counsel  for  the  respondents  submitted  that  on  considering  the  memorandum of appeal and the grounds indicated  therein,  the  High  Court  had  allowed  the  second  appeal and, therefore, there was nothing wrong. It  is  stated  that  after  considering  the  materials  on  record,  the High Court  had recorded its  findings  that the suit deserves to be dismissed.

xxx xxx xxx

9. A perusal of the impugned judgment passed  by  the  High  Court  does  not  show  that  any  substantial question of law has been formulated or  that the second appeal was heard on the question,  if any, so formulated. That being so, the judgment  cannot be maintained.

xxx xxx xxx

15. Under  the  circumstances,  the  impugned  judgment is set aside, we remit the matter to the  High Court so far as it  relates to Second Appeal  No. 285 of 2000 for disposal in accordance with  law.  The  appeal  is  disposed  of  on  the  aforesaid  terms with no order as to costs.”

{See  also  Koppisetty  Venkat  Ratnam (D) through LRs. v.  Pamarti  

Venkayamma [(2009) 4 SCC 244]}

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23. However, we are of the opinion that keeping in view the peculiar facts  

and circumstances of this case and as the plaintiffs have filed the suit as far  

back in the year 1990, the interests of justice should be subserved if we in  

exercise of our jurisdiction under Article 142 of the Constitution of India  

issue  the  following  directions  with  a  view to  do  complete  justice  to  the  

parties.  

i. The  plaintiffs  may  file  an  application  for  grant  of  leave  to  

amend his plaint so as to enable him to pray for a decree for  

eviction of the defendant on the ground that he is a trespasser.

ii. For the aforementioned purpose, he shall pay the requisite court  

fee in terms of the provisions of the Court Fees Act.

iii. Such an application for grant of leave to amend the plaint as  

also requisite amount of court fees should be tendered within  

four weeks from date.  

iv. The defendant – appellant would, in such an event, be entitled  

to file his additional written statement.

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v. The learned trial judge shall frame an appropriate issue and the  

parties  would  be  entitled  to  adduce  any  other  or  further  

evidence on such issue.

vi. All  the  evidences  brought  on  record  by  the  parties  shall,  

however,  be  considered  by  the  court  for  the  purposes  of  

disposal of the suit.

vii. The  learned  trial  judge  is  directed  to  dispose  of  the  suit  as  

expeditiously as possible and preferably within 3 months from  

the date of filing of the application by the plaintiffs in terms of  

the aforementioned direction (i).

24. The appeals are allowed with the aforementioned directions. No costs.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J.  [Deepak Verma]

New Delhi; August 4, 2009

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