Dhanpal Balu Lhawale And Ors vs Adagouda Nemagouda Patil (D) By Prop. Lr

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 3

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 4

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 5

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 6

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