Alternative - Inconsistent

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK AGARWAL

ON THE 19

th OF DECEMBER, 2022

MISC. PETITION No. 6181 of 2022

BETWEEN:-

1. AKHILESH KUMAR ALIAS HANSU S/O LATE

VISHWANATH JI, AGED ABOUT 57 YEARS,

RAMGANJ WARD KHADWA DISTRICT KHANDWA

(MADHYA PRADESH)

2. SANJAYKUMAR S/O LATE VISHWANATH JI, AGED

ABOUT 54 YEARS, OCCUPATION: CAST BRAMHAN

SELF EMPLOYED R/O RAMGANJ WARD KHADWA

DISTRICT KHANDWA (MADHYA PRADESH)

.....PETITIONERS

(BY SHRI AVINASH ZARGAR - ADVOCATE)

AND

1. SHRI SARADCHANDRA BHATE S/O SHRI

VISWANATH JI BHATE, AGED ABOUT 65 YEARS,

BEHIND DR. SUBHASH JAIN JAWAHARGANJH

KHANDWA TEHSIL AND DISTRICT KHANDWA

(MADHYA PRADESH)

2. SMT. MADHURI W/O LATE PRAMOD JI SHARMA,

AGED ABOUT 62 YEARS, R/O VISHRANT WADI

MOHAN BHATI NEAR SETHIA HOSPITAL DS PARK

FLAT NUMBER 2 PUNE (MAHARASTRA)

(MAHARASHTRA)

.....RESPONDENTS

(NONE)

This petition coming on for admission this day, the court passed the

following:

ORDER

This Miscellaneous Petition under Article 227 of the Constitution of India

is filed by the petitioners/plaintiffs being aggrieved of order Annexure P/1 dated

1

VERDICTUM.IN

28.10.2022 passed in Regular Civil Suit No.118A/2021 by learned V Civil Judge

(Junior Division) Khandwa rejecting an application under Order XIV Rule 5 of

the Code of Civil Procedure, 1908 refusing to amend issues as were framed by

the Trial Court earlier.

2. Brief facts leading to the present Miscellaneous Petition are that the

petitioners/plaintiffs filed a suit seeking declaration of title in respect of the

property detailed in Schedule A,B,C to the plaint on the basis of a Will.

Through amendment, the petitioners/plaintiffs provided the details of till

treatment received by the parents of the petitioners/plaintiffs at the hands of the

respondent/defendant No.1 and his wife, who happens to be the real brother

and sister-in-law of the petitioners/plaintiffs. After the amendment was

incorporated, now an additional issue on the plea of ouster is sought to be

raised on the ground that as an alternative, the plea of ouster is maintainable and

should be allowed to be taken by the petitioners/plaintiffs.

3. Reliance is placed on the judgment in B.R. Patil Vs. Tulsa Y. Sawarkar

and others [2022 Live Law (SC) 165], wherein dealing with the aspect of

ouster, it is held that three elements are necessary for establishing the plea of

ouster in the case of co-owner (i) declaration of hostile animus, (ii) long and

uninterrupted possession of the person pleading ouster, and (iii) exercise of

right of exclusive ownership openly and to the knowledge of other co-owner.

4. In fact, this aspect of alternative or inconsistent pleadings is dealt with by

Supreme Court in G. Nagamma and another Vs. Siromanamma and

another [(1996)2 SCC 25].

5. The expression 'Alternative' means the one or the other of two things. A

party to litigation may include in his pleadings two or more set of facts and

2

VERDICTUM.IN

claim relief in the alternative. "Inconsistent" on the other hand means mutually

repugnant, contradictory or irreconcilable establishment of one necessarily

implies abrogation or abandonment of other. The plaintiff may rely upon

several different reliefs in the alternative. Similarly, the defendant can also raise

several defences in the alternative. In instance for a suit for possession is

maintainable on the basis of title or in the alternative on the basis of lease.

6. In case of C. Mohammed Vs. Ananthachari (AIR 1988 Kerala 298), it

is held that "it may be permissible in the plaint to advance an inconsistent plea

of ownership and easement alternatively, but it is necessary that the plaintiff

should press one of them only either at the stage of evidence or a subsequent

stage. When the dominant and survient tenement are in the ownership and

possession of the same person acts done by him on survient tenement are

clearly referable to his possession of that tenement and hence, there cannot be

any easement by prohibition.

7. In case of Praful Manohar Rele Vs. Krishanabai Narayan Ghosalkar

and others [(2014) 11 SCC 316], Apex Court held that "4.4 super added to all

these factors is the fact that the appellate Court had granted relief to the

appellant not in relation to the alternative plea raised by him, but on the principal

case set up by the plaintiff. If plaintiff succeeded on the principal case set up

by him whether or not the alternative plea was contradictory or inconsistent or

even destructive of the original plea paled into insignificant." Thus, it is evident

that trial Court erred in not allowing framing of an issue on the basis of

alternative plea of ouster overlooking the fact that parties can plead inconsistent

or alternative plea, but not to the extent of mutual destructive to each other