PRANAV PRAKASH Vs. ARYA SAMAJ

JUDGEMENT

(1.) The Plaintiff has prayed for interlocutory relief against his dispossession, in the Suit for Partition. In the very first paragraph of the Plaint it has been averred that - "The Plaintiff is the owner of the suit property by virtue of right of prescription and adverse possession, in equal share with or against defendant herein and in part possession of the suit property". The Plaintiff has also pleaded that the entire suit property has a market value of Rs.50,00,000/- and since he "has sought partition of the suit property in equal share, thus is liable to pay Court Fee on a sum of Rs.25,00,000/-". The Plaintiff's case is that he was called to Delhi by Late Shri Mote Lal the then Purohit and that he has been working as such since 1979. Thereafter, in 1980 facing a threat from the Jhuggi Dwellers of the surrounding land the Plaintiff along with the Defendant constructed a common boundary wall. However, the Plaintiff is facing a threat of dispossession from one of the functionaries of the Defendant which is simply arrayed and styled as "Arya Samaj", 137-145, Block-6, Geeta Colony, Delhi. Curiously, the Plaintiff states that he has inherited the right of prescription of Late Shri Mote Lal who came in adverse and hostile possession of the part of the suit property after partition.

(2.) The Plaintiff claims a partition of the suit property, but to become entitled to such relief he must establish either titular rights or derivative rights emanating from the true owner. The Plaintiff has also not sought for a declaration of his ownership of the property in suit. The position, therefore, is that he prays for a partition of property to which he has no established rights. Normally, the plea of adverse possession is encountered in response to an action of possession brought by the titular or the true owner. This does not mean that a party cannot claim ownership by prescription but this can be efficacious upon a declaration to this effect being granted by a competent court. This right may even be employed as a sword and not merely a shield. However, the party pleading title through adverse possession must successfully prove and jurally establish that its possession has been open and hostile to that of the true owner. In the present case it has been contended that the Defendant has also trespassed onto public land but despite the setting-up of this case, it is the relief of partition and not of injunction or declaration that has been prayed for.

(3.) There can be no gainsaying that a Court would protect possession leaving it to the adversaries to seek the ejectment of the Plaintiff through due process of law. In the instant case, however, the Plaintiff has failed altogether to establish a prima facie case of ownership and this being the position, if the Suit for Partition and injunction itself is liable to be dismissed, the relief of ad interim injunction will certainly be out of place. Prima facie, the Suit is also liable to be rejected for failure to pay the proper Court Fee as mentioned in the valuation paragraph of the Plaint itself.