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

J U D G M E N T

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,

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

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