CHIMANLAL LALLUBHAI SHAH Vs. DAHYABHAI RANCHHODBHAI

JUDGEMENT

(1.) This Appeal from Order has been filed against the judgment and decree dated 25-6-1987 passed in ,Civil Misc. Appeal No. ,40 of 1983 by the Court of Assistant Judge, Surat, whereby the matter was remanded back to the court of 2nd Joint Civil Judge (J. D.), Surat selling aside the judgment and decree passed by the 2nd Joint Civil Judge (J. D.), Sural in Regular Civil Suit No. 448 of 1974.

(2.) The petitioner herein is the original defendant and the respondents- are the original plaintiffs. The plaintiffs filed a Regular Civil suit claiming tenancy rights in the suit properly and alternatively claiming ownership by adverse possession. On 16-9-1981 the plaintiffs gave up the plea of adverse possession through document Exh. 61. Later on a document dated 8-1-1962 was produced on 10-4-1982 by the defendanls and on the basis of this document, while the Suit had reached the stage of arguments, an amendment was sought by the plaintiffs in September 1982, seeking to again take the plea of adverse possession. This Application for amendment moved by the plaintiffs was rejected on 8-9-1982 and, thereafter, the suit was also dismissed on 18-10-1982. Against this judgment and decree dated 18-10-1982 passed by the 2nd Joint Civil Judge (J. D.), Surat, Appeal was preferred before the Assistant Judge, Surat by the plaintiffs and in this Appeal, the learned Assistant Judge, Surat has ordered the remand to the trial Court with a direction that the lower court should frame the issue regarding adverse possession and should allow the parties to lead evidence for the said issue and the Suit be tried in accordance with law. Against this order of remand passed in Civil Misc. Appeal No. 40 of 1983 by the Court of Assistant Judge, Sural the present Appeal has been preferred.

(3.) On behalf of the respondents, a preliminary objection has been raised thai in view of the provisions contained in Order XVIII Rule 1(u) read with Section 20 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 this Appeal from Order is not maintainable and the petitioner should have preferred a Revision. This appeal is pending since 1987 and in the impugned judgment, the direction given is to remand the matter. Before I deal with this objection, in the facts of this case, I consider it appropriate to deal with the order of remand. It is not in dispute that the plea of adverse possession was waived by the plainliffs and after waving the same, the Suit proceeded, the evidence was over and although the document dated 8-1-62 had been produced on 16-4-82 the application seeking amendment to revert back to the plea of adverse possession was moved on 3-9-1982 and against the order dated 8-9-1982. by which the application seeking amendment was rejected, no Revision Petition was filed by the plaintiffs, It is also pertinent to mention that the plaintiffs in the Suit have taken alternative but inconsistent plea with regard to the claim as a tenant and the claim by way of adverse possession. There is no doubt that it is open to a party to take inconsistent plea in alternative, provided such inconsistent stand is maintainable in the eye of law. But one thing, which is clear on the face of the matter is that here the inconsistent plea with regard to the claim as a tenant and the claim by way of adverse possession are mutually destructive inasmuch as the possession as a tenant is always permissive whereas adverse possession is never permissive. Therefore, even if it .is held that inconsistent plea can be taken, such plea if mutually destructive, cannot be allowed. Mr. Sajanwala appearing on behalf of the petitioner has cited before me AIR 1968 Supreme Court 1355 (Prem Raj v. D. L. F. H. and C. Ltd.) wherein the Supreme Court while dealing with the provisions contained in Section 37 of the Specific Relief Act has observed as under: