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Judgment
Heard the counsel for the petitioner-defendant (hereinafter ‘defendant’) and the respondent-plaintiff (hereinafter ‘plaintiff’) and perused
the impugned order dated 01.11.2017 whereby primarily an amendment in the suit initially filed for permanent injunction at the instance of the plaintiff
has been allowed by the trial court and the plaintiff allowed also to claim relief of declaration of this purported ownership of the suit property on the
basis of his alleged adverse possession. Other amendments have also been allowed by the trial court under impugned order dated 01.11.2017. Those
counsel for the defendant does not impugn.
The Apex Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Anr. [(2014) 1 SCC 669] has held that the plea of adverse
possession is not available to a plaintiff in a suit but can only be a matter of defence by a defendant in a suit filed by plaintiff i.e. that it is cannot be a
sword but only a shield. Counsel for the respondent has not been able to bring to the court’s notice any authority contrary to the aforesaid
enunciation of the Apex Court.
Besides the impugned order dated 01.11.2017 allows the suit for permanent injunction as initially filed to be transformed into one for declaration. That
changes the very nature and character of the suit contrary to the settled law, as rightly submitted by counsel for the defendant.
The impugned order dated 01.11.2017 is therefor set aside to the extent of allowing the plaintiff to seek a declaration on account of purported adverse
possession in the suit first filed only for permanent injunction. However other amendments as allowed by the trial court in its impugned order dated
01.11.2017 shall stand as they have not been seriously challenged in the course of argument by counsel for the defendant.
The petition stands partly allowed accordingly.