Holding

The Supreme Court held that the trial court erred in granting a decree for possession and ordering removal of constructions without proof of tenancy, and the High Court erred in confirming that decree; the appeals are allowed and the decree set aside.

Summary

The respondent, Ganga Singh, first obtained an injunction against M.P. Jain and the Municipal Corporation and later filed a suit under Section 6 of the Specific Relief Act seeking possession of a tuck‑shop premises. The trial court, despite finding that the respondent was not a tenant of the appellant or his predecessor, granted a decree for possession and also ordered the appellant to remove constructions on the premises, a relief not prayed for in the plaint. The Delhi High Court affirmed the trial court’s decree, dismissing the appellant’s revision on the ground of limitation alone. The Supreme Court held that the trial court erred by granting possession without proof of tenancy and by exceeding the scope of the prayer, and that the High Court erred in confirming that decree without examining the tenancy issue or the limitation defence properly. Consequently, the appeals were allowed, the decree set aside and the suit dismissed, with each party bearing its own costs.

Issues considered

The respondent proved a tenancy under the appellant or his predecessor to maintain a suit under Section 6 of the Specific Relief Act.
Whether the trial court could grant a decree for possession without a finding of tenancy.
Whether the trial court exceeded the scope of the plaint by ordering removal of constructions.
Whether the suit was barred by limitation, requiring consideration of exclusive possession.
The validity of assuming completion of unauthorised construction based on payment of compounding fee.

Legislation cited

Subjects

Specific Relief Acttenancypossessionlimitationdecree beyond prayercompounding feeCivil Procedure Codeappellate jurisdiction

Judgment

SHRI MAHABIR PRASAD JAIN A
v.
_.,
SHRI GANGA SINGH

OCTOBER 5, 1999

[M. SRINIVASAN, AP. MISRA AND N. SANTOSH HEGDE, JJ.) B

Specific Relief Act, 1963-Section 6.

Suit-Decree for possession of tenanted premises-Grant of-Trial
Coun through finding that respondent's tenancy not proved, granting decree C
for possession without considen·ng evidence on record-On revision, High
Cou/1 without examining the status of respondent as tenant, confirming the
decree of Trial Coun-Validity of-Held, Trial Coun committed serious e"or
by granting decree for possession on e"oneous presumption without consider-
ing the evidence on record-High Cou11 failed in its duty by confirming such
a decree without e,xamining the case in proper perspective-Civil Procedure D
Code, 1908-S.115.

Suit-Decree for possession of tenanted premises-Grant of-No prayer
in the plaint regarding removal of any illegal construction-However, Tn'al
Coun directing appellant to remove the construction put up by him on the E
suit premises-Validity of-Held, such a relief cannot be granted as it travels
beyond the scope of prayer in the plaint-High Cou/1 e"ed in confirming such
a relief

Limitation-Suit for possession of tenanted premises-Decree by Trial
Coun-Revision petition-Only plea raised that the suit was bamd by limita- F
tion-Revision petition dismissed by High Court-Validity of-Held, even for
the purpose of considering the plea of limitation it is absolutely necessary to
consider whether respondent is in exclusive possession of the tenanted
premises-High Court not justified in dismissing the Revision Petition.

Municipalities-{]nauthon·sed construction-Compounding fe~eld,
G
compounding fee can be calculated only on the basis of the area of un-
authorised construction that is completed.
--~

Respondent filed a suit for permanent injunction, against appellant
and the Municipal Corporation for restraining them from dispossessing H
415
416 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A him from the tuckshop. Trial Court granted an ad interim injunction.
-
Respondent's application for restoration of electricity supply to the said
..
tuckshop was allowed by Additional Rent Contr9ller without going into
the merits of the case. Thereafter, respondent filed a second suit under
S.6 of Specific Relief Act claiming decree for possession of the premises,
on the ground that he was a tenant under the predecessor-in-interest of
B appellant and subsequently on purchase of suit property by appellant, a
tenant under him. Trial Court while holding that respondent was not
inducted as a tenant by the predecessor-in-interest of the appellant,
decreed the suit in favour of respondent holding that he was dispossessed
from the suit premises by the appellant. The Trial Court also directed
-
c the appellant to remove the constructions put up by him on the said
premises. On revision, High Court dismissed the revision petition holding
that the only plea that the suit was barred by limitation was not sus-
tainable. Hence the present appeal.

On behalf of appellant, it was contended that once the basis of the
D claim made by the respondent that he came into possession of the proper-
ty as a tenant of the appellant's predecessor-in-title has been found
against, the court ought to have realized that the respondent could never
have been the tenant on the property and consequently he could not have
been in possession of the same as such; that the dispossession of the
E respondent as servant or agent of appellant was completed in 1984 and
the suit having been filed in 1986 was clearly barred by limitation; that
there is no explanation on the part of the respondent for filing the second
suit for possession when he had earlier filed a suit for injunction and the
material discrepancies between the averments in the plaint in the first
suit and the plaint in the second suit have been completely overlooked
F and ignored by the courts below.

Allowing the appeals, the Court

Held : 1.1. Trial Court committed serious error by not considering
the material evidence on record while granting a decree of specific relief.
G
High Court in revision failed in its duty when it confirmed the judgment
of the trial Court by entirely overlooking the aspect whether respondent
was a tenant of appellant as claimed. [418-F; G; HJ

1.2. Trial Court having found expressly against the case of tenancy ~

H put forward by the respondent ought to have considered whether the plea
M.P.JAIN v. GANGA SINGH 417

of the appellant was true or not. It was the specific case of the appellant A
that the respondent was never a tenant under him or under his predeces-
sor-in-title and he was only engaged on daily wages through his brother
to sell pan etc. This specific plea of appellant was supported by his own
evidence and the evidence of his brother. The correctness of the plea and
the acceptability of the evidence have not been considered by Trial Court
anywhere in its judgment though they have been referred to as part of
B
the narration of facts. If the Court had found in favour of the appellant
with regard to the said plea the suit filed by the respondent under Section
6 of the Specific Relief Act would not have been maintainable as he could
not claim to have been in possession of the premises. Possession of a
tenant or agent is that of his master or Principal as the case may be for c
all the purposes and the former cannot maintain a suit against the latter
on the basis of such possession. [424-E; F; 425-A; BJ

· Southern Roadways Ltd. Madurai v. S.M. Krishnan, [1989J 4 S.C.C.
603, referred to.
D
2. The decree passed by the Trial Court as affirmed by the High
Court travels beyond the prayer in the plaint and also the scope of Section
6 of the Specific Relief Act. Apart from granting a decree for possession
as prayed for by the respondent, the Trial Court has granted an additional
relief which was not prayed for by him in that the trial court has directed E
the appellant to remove' the construction put up by him including the
dismantling of the glass. Such a relief cannot be granted under the
provisions of Section 6 of the Specific Relief Act, particularly when there
is no prayer therefor in the plaint. [429-A; BJ

3. The Trial Court has placed reliance on the order passed by the F
Additional Rent Controller directing restoration of electricity as if the
tenancy of the respondent was upheld by that Court. The Trial Court has
failed to take note of the fact that the Additional Rent Controller did not
decide the question whether the respondent was the tenant under the appel-
lant. Further, the Trial Court erred in placing reliance on the order of the G
--· Sub-Judge who proceeded on an erroneous assumption that exclusive pos-
session by itself will give rise to a presumption of tenancy. (425-D; 426-AJ
I

4. Neither the Trial Court nor the High Court is right in taking the
view that compounding fee would have been paid even before the comple-
tion of the unauthorized construction and part of the construction would H
I
418 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A have been completed only long afterwards. There is no warrant for >11ch
a presumption or assumption. The compounding fee can be calculated
orily on the basis of the area of the unauthorized construction and it is
possible only when the same is completed. [427-C-D]

5. High Court was not justified in dismissing the revision petition
B only on the ground of limitation. The High Court has nowhere stated that
the counsel for the respondent had made any concession with regard to
the other questions. Just because the counsel in the High Court thought
fit to argue the question of limitation only, the right of the appellant to
reiterate the case put forward in the Trial Court and in the grounds of
C revision before the High Court is not lost so long as there was no con-
cession or admission by the appellant or his counsel. Even for the purpose
of considering the plea of limitation, the question whether the respondent
was in exclusive possession as a tenant as claimed by him is absolutely
necessary. [428-E; F; G]

D CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5732-33
of 1999.

From the Judgment and Order dated 8.12.97 and 8.1.98 of the Delhi
High Court in C.R. No. 102/90 and R.A. No. 1 of 1998.

E Dushyant Dave, Amit Dhingra and P.H. Parekh for the Appellant

Shiv Pujan Singh, K.R. Chawla and K. Uppal for the Respondent.

The Judgment of the Court was delivered by

F SRINIVASAN, J. 1. Leave granted ..

2. It is ,very unfortunate that a summary suit filed under Section 6 of
the Specific Relief Act 1963 by the respondent herein has been disposed
of by the Trial Court without understanding the. law relating to su'ch suits.
Besides, the Trial Court has also overlooked material evidence on record
G raising some erroneous presumptions. Moreover, the Trial Court has
granted a relief in the decree which could not have been granted in a suit
under Section 6 of the Specific Relief Act and which was not in fact prayed
for by the respondent in his plaint. The judgment of the High Court in
revision petition filed by the appellant herein under Section 115 C.P.C. is
H no better. It has confirmed the judgment of the Trial Court without
.--
M.P. JAIN v. GANGA SINGH [SRINIVASAN, J.] 419

considering the aforesaid matters. We have no hesitation to point out at A
this stage that the judgments of both the courts arc totally unsatisfactory if
not perverse. As the litigation, has already been pending for more than 13
years, it is not proper to remand the matter for fresh consideration. Hence,
we have gone through the entire evidence on record by perusing the
original record ourselves for disposing of these appeals finally.
B
3. The respondent herein filed suit No. 557/86 on the file the Court
of Senior sub-Judge, Delhi against the appellant and the Municipal Cor-
poration of Delhi for a permanent injunction restraining the defendants
therein from dispossessing him from the tuck shop in premises No. G-19,
N.D.S.E. Part-I, New Delhi-110049 and occupying the same and construct- c
ing anything on the same in any way. That suit was filed on 14.7.86. In the
body of the plaint it was alleged that on the night of 12.7.1986 the defendant
No. 1 therein with the help of local police threw the entire goods of the
plaintiff from the tuck shop in the verandah and startt:d constructing
basement and covering the tuck shop of the plaintiffs place with the glass D
which was refuted and objected to by the plaintiff but the local police had
not helped the plaintiff and the officials of the Municipal Corporation had
also sided with the appellant herein in raising the illegal construction,
violating building bye-laws and without prior permission of the Corpora-
tion. It was also alleged that the action of the defendants in raising the
illegal constructing and forcibly removing the plaintiff from the premises E
and converting the tuck shop into their private room and basement was
altogether illegal, arbitrary and without any justification of any kind what-
soever. In Paragraph 10 of the said plaint it was expressly stated that the
cause of action for filing that suit arose on 12.7.84 at night. There was an
application for an ad interim injunction· pending that suit. The Court
F
granted an order of ex parte injunction and also appointed a local commis-
sioner to report after inspecting the premises. The commissioner submitted
his report which did not mention anything about any construction activity
being carried on at that time. It did not also mention that the tuck shop of
the respondent herein or any part thereof was inside the premises of the
appe~lant. On 29.9.86, the Court passed an order of injunction restraining G
the appellant herein from disturbing the possession of the respondent till
the disposal of the said suit. That suit is said to be still pending.

4. Even before the order of injunction was passed on 29.9.86, the
respondent herein file an application on 11.8.86 before the Additional Rent H
420 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A Controller, Delhi under Section "-5 of the Delhi Rent Control Act alleging
disconnection of electricity by the appellant to the said tuck shop. An
interim order was passed by the Additional Rent Controller, Delhi direct-
ing the appellant to restore the electricity to the said shop. The order was
confirmed on 19.8.86 without going into the question on merit as to whether
B the respondent was a tenant under the appellant. Against the order direct-
ing restoration of electricity, an appeal was preferred by the appellant
before the appellate authority. That appeal was dismissed and the appel-
lant preferred a revision petition in the High Court. When the revision
petition was pending electricity connection was restored whereupon the
respondent made a statement before the Additional Rent Controller that
C electricity supply had been restored and the petition be dismissed as
withdrawn. The Additional Rent Controller dismissed the petition in view
of the statement made by the respondent. When the revision petition was
taken up by the High Court, neither party appeared before that Court,
obviously because the main petition had already been dismis,sed as
D withdrawn, but the High Court went on to confirm the order of the
Appellate Authority holding that there was no merit in the revision
petition.

5. Even when the first suit filed by the respondent was pending and
there was an order of interim injunction in his favour, the respondent filed
E a second suit bearing No. 793/86 on the file of the Sub Judge, Delhi against
the appellant under Section 6 of the Specific Relief Act from which tht
present appeal arises. The prayer in the suit was for grant of decree for
possession in favour of the respondent in respect of part of the tenanted
premises as shown red in the site plan attached therewith in the premises
F bearing No, G-19, New Delhi South Extension Part I, New Delhi. The basis
of the claim in the suit was that the respondent became a tenant on or
about 1.11.1969 under one Saraswati Devi through her attorney Lal Chand
Gaur at a monthly rent of Rs. 200. It was alleged by the respondent that
the appellant purchased the premises on 12.2.1969 and became the
landlord of the premises and therefore he became a tenant under the
G appellant by operation of law with effect from 122.1969. The suit was
contested by the appellant. The Trial Court framed as many as 9 issues.
Issue No. 5 was whether the plaintiff was inducted as a tenant as alleged
in the plaint by the predecessor-in-interest of the defendant. The Trial
Court found categorically against the plaintiff (respondent herein) on that
H issue. Issue No. 7 was whether the plaintiff was in possession of the alleged
M.P. JAIN v. GANGA SINGH [SRINIVASAN, J.] 421

rortion on 22.7.1986 and was dispossessed by the defendant as alleged in A
the plaint. The finding on that issue was in favour of the plaintiff. The Trial
Court granted a decree in the suit holding that the plaintiff was entitled to
the portion at the back of the shop inside the wall so as to bring his
shop/khoka half inside the premises bearing No. G-19, South Extension
Part-I New Delhi and half in the verandah portion for keeping the tuck
shop inside to be delivered to the plaintiff after removing obstruction
B
including dismantling of the glass if it was not handed over to the plaintiff
by the defendant within 15 days of the passing of the order as per the site
plan attached.

6. Aggrieved by the decree, the appellant approached the High Court C
under Section 115 C.P.C. as it was the only remedy available to him in law.
The High Court observed that the only contention urged before it was that
the suit was barred by limitation. Holding against the appellant on that
question the High Court dismissed the revision petition. The appellant has
preferred this appeal. When notice was ordered on 20.3.1998 in the Special .
Leave Petition, this Court passed an order that status quo as on that date D
shall be maintained. When the matter was heard on 23.3.99, this Court
passed the following order :

· "Since a dispute has been raised whether the date mentioned in
paragraph 1 of the plaint is 1.11.1969 or l.ll.1968 for which original E
record is necessary which is not yet called for, we direct the
Registry to get the original record either from the High Court or
from the Subordinate Court, wherever it is available within four
weeks.

List the matter after five weeks." F

7. Pursuant to the said order, the entire original record had come to
this Court and we have had the benefit of going through the same.

8. Mr. Dushyant Dave, learned Senior Advocate for the appellant
placed before us the following contentions : G

(i) The Trial Court having found against the respondent's case of
tenancy failed to consider the evidence on record on that footing. In other
·-. words, his argument is that once the basis of the claim made by the
respondent that he came into possession of the property as a tenant of the H
422 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A appellant's predecessor-in-title has been found against, the Court ought to
have realized that the respondent could never have been the tenant on the
property and consequently he could not have been in possession of the
same as such. It is rightly pointed out that the respondent had no
alternative pleading that if his case of tenancy under the appellant's
B predecessor is found against, he should be considered to have become the
tenant of the appellant on a later date after the appellant purchased the
property. Such an inconsistent alternative plea could not have been raised
by the respondent and as a matter of fact it was not raised.

(ii) The second contention is that the dispossession of the respondent .
C was completed in 1984 and the suit having been filed in November 1986
was clearly barred by limitation. It is submitted in this connection that both
the courts have erroneously discredited the document proving the payment
of Rs. 22,972 for regularisation of unauthorised construction on a wrong
premise that payment will not prove the completion of unauthorised con-
D struction overlooking that for the purpose of calculating the relevant
charges and the compounding fee, the total area of the unauthorised
construction had to be and had been measured by the Municipal Corpora-
tion of Delhi and it is only on that basis the compounding fee was collected
on 17.12.84. Learned counsel submits that the said document is by itself
sufficient proof of a completed construction in 1984 which meant that the
E respondent could not have been and was not in possession thereafter.

(iii) The third contention is that there is no explanation on the part
of the respondent for filing the second suit for possession when he had
earlier filed a suit for injunction as if he was in possession and obtained an
F order of interim injunction. If the respondent had been factually in
possession when he obtained the order of injunction, he would have rushed
to Court with an application for contempt against the appellant in the first
suit which is alleged to be still pending. Alternatively, if the respondent had
been dispossessed after the .order of injunction was passed in the first suit,
he could have and would have applied for amendment of the prayer in the
G first suit and converted the same into one for possession instead of filing
a fresh suit.

(iv) The fourth contention is that the material discrepancies between
the averments in the plaint in the first suit and the plaint in the second suit
H have been completely overlooked and ignored by the courts below. It is
M.P. JAIN v. GANGA SINGH [SRINIVASAN, J.) 423

suhmitted by the learned counsel that none of the aforesaid points has been A
considered either by the Trial Court or by the High Court and
consequently both the judgments are vitiated and deserve to be set aside.

9. Per contra, learned counsel for the respondent has contented that
in the High Court the only question argued by the appellant herein was
B
that of limitation and it is not open to the appellant to enlarge the scope
of the controversy in these appeals. At one stage, learned counsel also
contended that there was no issue on limitation even in the Trial Court.
However, he did not press that contention as he found that Issue No. 7 was
the relevant issue under which the Trial Court has considered the question
of limitation and the High Court has also proceeded on the footing that c
Issue No. 7 covers the question of limitation. The second contention of
learned counsel for the respondent is that the dispossession of the
respondent was only in July or August 1986 and it was not in due process
of law and consequently the appeal deserves to be dismissed.
D
10. We have already referred to the specific averment in the plaint
that the respondent became a tenant under one Saraswati Devi though her
attorney Lal Chand Gauron l.11.1969 at a monthly rent of Rs. 200. In the
very same paragraph in the plaint it is averred that the appellant purchased
the property on 12.2.1969 and became the landlord of the premises
E
whereupon the respondent became a tenant under the appellant by
operation of law. On the face of it, the avcrmcnts arc inconsistent and do
not make any sense. In order to verify whether the date 'l.11.69' was found
in the original plaint, this Court called for the original record and it is now
seen that the same date is mentioned in the original plaint without any
room for any doubt. Even assuming for a moment, that the date was a
F
(

mistake for '1.11.68' as now sought to be contended, there being no
evidence in support of the same, the Trial Court has rightly found against
that plea. A perusal of the evidence of the respondent as PW-1 is itself
sufficient to show that his case of tenancy under the predecessor-in-title of
the appellant is absolutely false. Even in the chief-examination, PW-1 has G
admitted that he had never seen Smt. Saraswati Devi and that Lal Chand
· told him that she was owner of the premises. It is also his deposition th~t

- for the first time, he met Lal Chand at the time of taking the shop on
tenancy and thereafter he did not meet the said Lal Chand. According to
him he used to pay the rent to the Manager but he does not remember the H
424 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A name of the Manager. Admittedly, there is no lease deed or rent note or
rent receipt to support the plea of tenancy. The Trial Court has rightly held
that no case of tenancy as put forward by the respondent has been proved.

11. But unfortunately, while discussing Issue No. 8, the Trial Court
B has assumed that it had given a finding earlier in its judgment that the
respondent herein was a tenant in respect of a tuck shop half inside the
wall and half outside the wall if not earlier, from 1972 onwards. We have
searched in vain the entire judgment of the Trial Court for such a finding.
While negathfog the contention of the respondent on Issue No. 5 relating
to his tenancy under the predecessor-in-title of the appellant, the Trial
C Court made an observation that evidence brought on record by the respon-
dent at the earliest related to 1972 and prior to that, there was no evidence.
That would not amount to a finding by any stretch of imagination, that the
respondent became a tenant in 1972 under the appellant. In any event such
a finding could not have been given by_th(l court as it is not the case of the
D respondent that he became a tenant under the appellant directly after the
appellant purchased the property. The only case put forward by the
respondent in the plaint is that he became a tenant under the prior owner
by contract and became a tenant under the appellant by operation of law
when the latter purchased the property from the prior owner.

E 12. At this stage we think it better, to set out the grievous errors
committed by the Trial Court which have been ignored by the High Court.
It is the specific case of the appellant in the written statement that the
respondent herein was never a tenant under him or under his predecessor-
in-title and that the respondent had been engaged on daily wages through
F his brother Ajit Prasad or other relatives to sell pan etc. It is also his plea
that other persons besides the respondent were similarly engaged on daily
wages. It was however, pleaded that the respondent was not regular in
attendance and when his services were not engaged, he requested the
appellant's brother Ajit Prasad to recommend to the appellant to give a·
last chance by engaging him as a panwala on daily wages. That was in about
G July 1986. Taking pity on his condition and on the assurance of Ajit Prasad
that the respondent would behave properly, the appellant engaged his
services. Immediately thereafter, the respondent filed the first suit for
injunction claiming to be a tenant. This specific plea of the appellant was
supported by his own evidence and the evidence of Ajit Prasad as DW-3.
H The correctness of the plea and accetability of the evidence have not been
M.P. JAIN v. GANGA SINGH [SRINIVASAN, J.] 425

considered by the Trial Court anywhere in its judgment though they have A
been referred to as part of the narration of facts. The Trial Court has not
even framed an issue on that question. The Trial Court having found
expressly against the case of tenancy put forward by the respondent ought
to have considered whether the plea of the appellant was true or not. If
the court had found in favour of the appellant with regard to the said plea,
the suit filed by the respondent under Section 6 of the Specific Relief Act
B
was not maintainable as he could not claim to have been in possession of
the premises. Possession of a servant or agent is that of his master or
principal as the case may be for all purposes and the former cannot
maintain a suit against the latter on the basis of such possession. (Vide
Southem Roadways Ltd. Madurai v. S.M. K1ish11a11, [i989] 4 S.C.C. 603). It c
is very unfortunate that the High Court has entirely overlooked this aspect
of the matter.

13. While discussing Issues 6 and 7, the Trial Court has placed
reliance on the order passed by the Additional Rent Controller directing
restoration of electricity in the application filed by the respondent under D
Section 45 of the Delhi Rent Control Act and proceeded as if the tenancy
of the respondent was upheld by that Court. The Trial Court has failed to
take note of the fact that the Additional Rent Controller did not decide
the question whether the respondent was the tenant under the appellant.
The trial court has made a reference also to the order of interim injunction
passed in the first suit 557/86 by the Sub-Judge, First Class and proceeded
on the footing that the case of tenancy put forward by the respondent was
upheld in the said order. The Trial Court has overlooked, that in the said
order, the Sub-Judge First Class has only expressed a p1ima facie view of ·
the matter and not come to any conclusion on the basis of any specific F
evidence. The relevant observation in the order of the Sub-Judge reads as .
follows :

"Plima f acie an exclusive possession of the plaintiff shows that he
is a tenant in respect of the tuck shop/Almirah. Exclusive posses-
sion by itself gives rise to a presumption of tenancy and there· is G
nothing on record to rebut this presumption".

14. Apart from the fact that the Sub-Judge has taken a p1ima facie
view of the matter, it is seen that he has proceeded on aii errone·ous
assumption of the position in law. Exclusive possession by itself will. not H
426 SUPREME COURT REPORTS [1999J SUPP. 3 S.C.R.

A give rise to any presumption of tenancy and the Sub-.J udge is entirely wrong
in expressing that opinion in that order. Consequently, the Trial Court in
the present proceeding is in error in placing any reliance on the said order
of the Sub-Judge.

15. The Trial Court has placed reliance on some inspection report
B of 1972 of House Tax Department for holding that the tuck shop was inside
the premises bearing No. G-19, N.D.S.E. Part I and that a wooden almirah
was earlier inside the wall which had been pushed away thereafter. None
of the said matters is relevant in this case. The two crucial questions are
whether' the respondent was in exclusive possession of the premises as
C claimed by him and whether he was dispossessed within a period of six
months prior to the date of the suit. Unfortunately, the Trial Court has
ignored the relevant materials with regard to the said questions and over-
looked that the specific case put forward by the respondent has been
negatived by itself.
D
16. The report of the local commissioner appointed in the first suit
557/86 disproves the averments made by the respondent in the plaint in
that suit as well as the plaint in the second suit. It is worthwhile mentioning
here that the averments in Para 5 of the plaint in the earlier suit are
sufficient to prove that he was already dispossessed and yet he prayed for
E injunction as if he was in possession. It is unnecessary for us to take up the
exercise of pointing out the material discrepancies between the averments
in the two plaints. Suffice it to say that the respondent has failed to offer
any explanation as to why in Paragraph 10 of the plaint in the earlier suit
he alleged that the cause of action arose in 1984. We put a specific question
F to Mr. Shiv Pujan Singh, learned counsel appearing for the respondent
before us as to whether he had any explanation for the same. He had no
answer to our question.

17. It is significant to point out that in the plaint in the present suit
namely. 793/86, in Paragraph 10 the date on which· the cause of action is
G said to .have arisen was originally typed as "12.7.84" but the figure "4" has
been later corrected in ink as "6". For this also, there is no explanation.

18. Learned counsel appearing for the respondent has placed strong
reliance on some extracts from the House Tax Register and submitted that
H the responde~t's name has been specifically mentioned therein as a tenant.
M.P. JAIN v. GANGA SINGH [SRINIVASAN, J.] 427

We find that for the first time in the document dated 19.3.1986 the A

- respondent's name has been mentioned in the column, 'tenant or occupier'
and in the previous Registers no name was mentioned. The column men-
tioned only "Panwala". Admittedly, disputes has arisen between the parties
in 1984 and it is quite obvious that the respondent has chosen to get his
name entered in the Register maintained by the House Tax Department
after the dispute arose. On a perusal of all the records in the case, we have
B
no hesitation whatever to ho.Id that the respondent was not in exclusive
possession at any time as a tenant and even if he was in possession, the
dispossession took place in 1984 when the appellant raised a construction
which was not authorised by the Municipal Corporation and paid the
compounding fee. Neither the Trial Court nor the High Court is right in c
taking the view that compounding fee would have been paid even before
the completion of the unauthorised construction and one part of the
construction would have been completed only long afterwards. There is no·
warrant for such a presumption or assumption.

19. As pointed out earlier, the compounding fee can be calculated
D
only on the basis of the area of the unauthorised construction and it is
possible only when the same is completed. There is no suggestion whatever
to the appellant or his witnesses that he started the unauthorised construc-
tion sometime in 1984 and completed it much later in 1986. In the absence
of any such suggestion to the witnesses of the appellant and in the absence E
of any such evidence on the side of the respondent, the Courts below are
not justified in assuming that the payment of compounding fee does not
support the case of the appellant that the unauthorised construction was
completed in 1984.
F
20. The High Court has made the following observation in Paragraph
13 of its judgment :

"In my view, simply because the compounding fee was paid in
December 1984, it would not establish that the construction of the·
basement was complete then. There is no completion certificate G
or other evidence placed on record with regard to completion of
basement. The alleged act of dispossession of the respondent was
fixing of a glass which pushed out the respondent's shop into the
verandah. This could be done at the time of renovations, even if
the basic structure of the basement was complete". H
428 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A The above observation is wholly unwarranted as it is not the case of the
respondent that the basic structure of the basement was completed earlier
and fixing of a glass was much later. The averments in the plaint are
significantly silent on this aspect of the matter. The plaint does not mention
anywhere the exact date on which the respondent was dispossessed.
-
B 21. Wl)ile the High Court has taken the trouble of referring to the
evidence of the respondent as PW-1, it does not choose to consider the
evidence on the side of the appellant in the light of the finding given by '
the Trial Court that the respondent has not proved the case of tenancy as
pleaded by him. We are sorry to point out that the High Court has failed
C to do its duty.

22. The way in which the respondent has been instituting different
proceedings in different fora within a short time making inconsistent
allegations show that the respondent has been abusing the process of Court
D and not come to Court with clear hands. He is not entitled to get any
equitable relief under the Specific Relief Act.

23. The only other argument which has to be considered is that of
the respondent's counsel that it is not open to the appellant to enlarge the
scope of the controversy as the appellant's counsel has confined his argu-
E ments before the High Court to the question of limitation. The High Court
has no where stated that the counsel for the respondent herein had made
any concession with regard to the other questions. Just because the counsel
in the High Court thought fit to argue the question of limitation only, the
right of the appellant to reiterate the case put forward in the trial court
F and in the grounds of revision before the High Court is not lost so long as
there was no concession or admission by the appellant or his counsel. But,
as a matter of fact, the scope of the controversy before us has not been
enlarged in any manner. Even for the purpose of considering the plea of
limitation, the question whether the respondent was in exclusive possession
as a tenant as claimed by him is absolutely necessary. Once the case of
G tenancy is found against, it is for the respondent to establish that his
possession is exclusive possession and not one on behalf of the appellant.
The question whether a relief can be granted to the respondent under
Section 6 of the Specific Relief Act hinges on that issue. The respondent
having failed to prove the only plea of tenancy put forward by him is not
H entitled to get any relief in this suit.
M.P. JAIN v. GANGA SINGH [SRINIVASAN, J.] 429

24. As already pointed out, the decree passed by the Trial Court as A
affirmed by the High Court travels beyond the prayer in the plaint and also
the scope of Section 6 of the Specific Relief Act. Apart from granting a
decree for possession as prayed for by the respondent, the trial court has
granted an additional relief which was not prayed for by him in that the
trial court has directed the appellant to remove the construction put up by
him including the dismantling of the glass. Such a relief cannot be granted
B
under the provisions of Section 6 of the Specific Relief Act, particularly
when there is no prayer therefor in the plaint.

25. In the result, the appeals are allowed. The judgment and the
decree of the Courts below are set aside. The Suit No. 793/86 on the file C
. of the Subordinate Judge stands dismissed. The parties shall bear their
respective costs.

S.V.K. Appeals allowed.