IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10316 OF 2013
(Arising out of S.L.P. (C) No. 15927 of 2008)
Tribhuvanshankar … Appellant
Versus
Amrutlal …Respondent
J U D G M E N T
Dipak
Misra, J.
Leave
granted.
2.
This appeal, by special leave, is from the judgment and order of the
High Court of Madhya Pradesh, Bench at Indore, in Second Appeal No.
33 of 1995 passed on 8.2.2008.
3.
The appellant-plaintiff instituted Civil Suit No. 259A/86 in the
Court of Civil Judge Class-II, Mhow, District Indore, for eviction of
the respondent-defendant from the suit-premises and for mesne
profits. The case of the appellant-plaintiff was that he had
purchased the suit property vide registered sale deed dated 1.4.1976
on payment of sale consideration of Rs.4500/- to the vendor, one
Kishanlal. The respondent-defendant was in possession of the said
suit property as a tenant under the earlier owner Kishorilal on
payment of rent of Rs.15/- per month. It was averred in the plaint
that it was an oral tenancy and after acquiring the title the
appellant informed the respondent about the sale by the earlier
owner. Despite assurance given by the respondent to pay the rent to
him, it was not honoured which compelled the appellant to send a
notice on 14.12.1977 and, eventually, he terminated the tenancy with
effect from 31.1.1978. The respondent, as pleaded, had replied to the
notice stating, inter alia, that the appellant was neither the
landlord nor the owner of the property. On the contrary, it was
stated in the reply that the respondent was the owner of the
premises.
4.
The grounds that were urged while seeking eviction were: (i) the
defendant was in arrears of rent since 1.4.1976 and same was demanded
vide notice dated 14.12.1977, which was received on 3.1.1978 and
despite receiving the notice, the defendant defaulted by not paying
the rent within two months; (ii) that the said accommodation was bona
fide required by the plaintiff for construction of his house and the
accommodation is an open land;
(iii)
the said accommodation was bona fide required by the plaintiff for
general merchant shop i.e. non-residential purpose and for the said
purpose the plaintiff did not have any alternative accommodation in
his possession in Mhow City.
5.
In the written statement, the defendant disputed the right, title and
interest of the plaintiff, and denied the relationship of landlord
and tenant. That apart, a further stand was taken that the appellant
had no right under the M.P. Accommodation Control Act, 1961 (for
brevity “the Act”) to file the suit for eviction. It was set
forth by the respondent-defendant that he was never a tenant under
Kishorilal and, in fact, the accommodation was in a dilapidated
condition and a ‘banjar’ land and the respondent was in
possession for 18 to 19 years and it was to the knowledge of
Kishorilal and his elder brother. For the purpose of business he had
constructed a Gumti, got the gate fixed and when the business
relating to sale of furniture commenced there was no objection from
Kishorilal or his brother or any family member. The possession, as
put forth by the respondent, was uninterrupted, peaceful and to the
knowledge of Kishorilal who was the actual owner. It was also set
forth that when Kishorilal desired to sell the premises, he was put
to notice about the ownership of the defendant but he sold the
property without obtaining sale consideration with the sole intention
to obtain possession by colluding with the appellant- plaintiff.
Alternatively, it was pleaded that the premises is situate in the
Cantonment area and the Cantonment Board has the control over the
land and neither Kishorilal nor the appellant had any title to the
same.
6.
The learned trial Judge framed as many as 26 issues. The relevant
issues are, whether the suit accommodation was taken on rent by the
defendant for running his wood business in the year 1973 from the
earlier landlord Kishorilal; whether defendant is in continuous,
unobstructed and peaceful possession since 18 years which was within
the knowledge of Kishorilal, his elder brother and their family
members; whether defendant had become owner of the suit accommodation
by way of adverse possession; and whether the sale deed had been
executed without any consideration for causing damage to the title of
defendant.
7.
The learned trial Judge, on the basis of evidence brought on record,
came to hold that the sale deed executed by Kishorilal in favour of
the appellant was without any sale consideration; that the
relationship of landlord and tenant between the parties had not been
established; and that the respondent had become the owner of the suit
accommodation on the basis of adverse possession. Being of this view,
the trial court dismissed the suit.
8.
Being dissatisfied with the aforesaid judgment and decree the
plaintiff preferred Civil Regular Appeal No. 5 of 1994 and the lower
appellate court, reappreciating the evidence on record and
considering the submissions raised at the bar, came to hold that the
appellant- plaintiff had not been able to prove the relationship of
landlord and tenant; that the conclusion arrived at by the learned
trial Judge that the sale-deed dated 1.4.1976 due to absence of sale
consideration was invalid, was neither justified nor correct; and
that there being no clinching evidence to establish that the
defendant had perfected his title by adverse possession the finding
recorded by the learned trial Judge on that score was indefensible.
After so holding, the learned appellate Judge proceeded to hold that
as the plaintiff had established his title and the defendant had
miserably failed to substantiate his assertion as regards the claim
of perfection of title by way of adverse possession, the plaintiff on
the basis of his ownership was entitled to a decree for possession.
To arrive at the said conclusion he placed reliance on Punia
Pillai vs. Panai Minor through Pandiya Thevan[1], Bhagwati
Prasad v. Chandramaul[2] and Amulya
Ratan Mukherjee and ors. V. Kali Pada Tah and ors.[3]
9.
Facing failure before the appellate court the defendant preferred
Second Appeal No. 33 of 1995 before the High Court. The appeal was
admitted on the following substantial questions of law: -
“(1)
Whether a decree could be passed in favour of plaintiff though such
plaintiff fails to establish the relationship of landlord and tenant?
(2)
Whether the 1st Appellate Court committed the error of law in
pronouncing the error of law in pronouncing the judgment and decree
on question of title? And (3) Whether the 1st Appellate Court has
erred in law in holding that the possession of the defendant is not
proved and that the defendant has not acquired the title by adverse
possession?”
10.
The learned single Judge by judgment dated 8.2.2008 adverted to
Sections 12(1)(a) and 12(1)(e) of the Act and came to hold that once
the plaintiff had failed to establish the relationship of landlord
and tenant which is the sine qua non in a suit for eviction, the
plaintiff could not have fallen back on his title to seek eviction of
the tenant. Be it noted, the learned single Judge placed reliance
upon Rajendra Tiwary
v. Basudeo Prasad and another[4] wherein the decision in Bhagwati
Prasad (supra) had been distinguished. The learned single Judge
dislodged the judgment and decree passed by the lower appellate court
and affirmed that of the learned trial Judge.
11.
We have heard Mr. A.K. Chitale, learned senior counsel appearing for
the appellant and Mr. Puneet Jain, learned counsel appearing for the
respondent.
12.
Questioning the legal acceptableness of the decision of the High
Court the learned senior counsel has raised the following
contentions: -
a)
The learned single Judge has erroneously opined that a suit cannot be
decreed by civil court for possession on the basis of general title
even if the landlord-tenant relationship is not proved. A manifest
error has been committed by the learned Judge not following the law
laid down in Bhagwati Prasad (supra) which is applicable on all fours
to the case at hand, solely on the ground that the said decision has
been distinguished in Rajendra Tiwary’s case.
b)
Though three substantial questions of law were framed, yet the
learned single Judge without considering all the questionss affirmed
the judgment of the trial court wherein it had come to hold that the
defendant had established his title by adverse possession despite the
same had already been annulled on reappreciation of evidence by the
lower appellate court.
c)
Assuming a conclusion is arrived at that there should have been a
prayer for recovery of possession by paying the requisite court fee,
the appellant, who has been fighting the litigation since decades
should be allowed to amend the plaint and on payment of requisite
court fee apposite relief should be granted.
13.
Countering the aforesaid submissions Mr. Puneet Jain, learned counsel
appearing for the respondent, has proponed thus: -
i)
The analysis made by the High Court that when the relationship
between the landlord and tenant is not proven in a suit for eviction,
possession cannot be delivered solely on the bedrock of right, title
and interest cannot be found fault with. There is a difference
between a suit for eviction based on landlord- tenant relationship
and suit for possession based on title, and once the relationship of
landlord and tenant is not proven there cannot be a decree for
eviction.
ii)
The High Court has correctly distinguished the decision rendered in
Bhagwati Prasad (supra) in Rajendra Tiwary (supra) as the law laid
down in Bhagwati Prasad is not applicable to the present case and
hence, the submission raised on behalf of the appellant that once the
right, title and interest is established, on the basis of general
title, possession can be recovered is unacceptable.
iii)
The alternative submission that liberty should be granted to amend
the plaint for inclusion of the relief for recovery of possession
would convert the suit from one for eviction simpliciter to another
for right, title and interest and recovery of possession which is
impermissible. That apart, when the suit was dismissed and the
controversy travelled to appellate court the plaintiff was aware of
the whole situation but chose not to seek the alternative relief that
was available which is presently barred by limitation. It is well
settled in law that the Court should decline to allow the prayer to
amend the plaint if a fresh suit based on the amended claim would be
barred by limitation on the date of application.
14.
At the very outset, we may straight away proceed to state that the
finding returned by the courts below that has been concurred by the
High Court to the effect that there is no relationship of landlord
and tenant between the parties is absolutely impeccable and, in fact,
the legality and propriety of the said finding has not been assailed
by the learned senior counsel for the appellant. As far as right,
title and interest is concerned, the learned trial Judge had not
believed the sale deed executed by the vendor of the
appellant-plaintiff in his favour for lack of consideration and also
returned an affirmative finding that the defendant was in possession
for long and hence, had acquired title by prescription. The learned
appellate Judge on reappreciation of the evidence brought on record
had unsettled the findings with regard to the title of the plaintiff
as well as the acquisition of title by the defendant by way of
adverse possession. He had granted relief to the plaintiff on the
ground that in a suit for eviction when the title was proven and
assertion of adverse possession was negatived by the court, there
could be a direction for delivery of possession. As has been stated
earlier the High Court has reversed the same by distinguishing the
law laid down in Bhagwati Prasad (supra) and restored the verdict of
the learned trial Judge.
15.
Keeping these broad facts in view, it is necessary to scrutinize
whether the decision in Bhagwati Prasad which has been assiduously
commended to us by Mr. Chitale is applicable to the case. In Bhagwati
Prasad (supra) the defendant was the appellant before this Court. The
case of the plaintiff was that the defendant was in possession of the
house as the tenant of the plaintiff. The defendant admitted that the
land over which the house stood belonged to the plaintiff. He,
however, pleaded that the house had been constructed by the defendant
at his own cost and that too at the request of the plaintiff because
the plaintiff had no funds to construct the building on his own.
Having constructed the house at his own cost, the defendant entered
into possession of the house on condition that the defendant would
continue to occupy the same until the amount spent by him on the
construction was repaid to him by the plaintiff. In this backdrop,
the defendant resisted the claim made by the plaintiff for ejectment
as well as for rent. The learned trial Judge held that the suit was
competent and came to the conclusion that the plaintiff was entitled
to a decree for ejectment as well as for rent. The High Court agreed
with the trial court in disbelieving the defendant’s version about
the construction of the house and about the terms and conditions on
which he had been let into possession. The High Court opined that the
defendant must be deemed to have been in possession of the house as a
licensee and accordingly opined that a decree for ejectment should be
passed. Dealing with various contentions raised before this Court it
was ruled that the defendant could not have taken any other plea
barring that of a licensee in view of the pleadings already put forth
and the evidence already adduced. In that context, this Court opined
that the High Court had correctly relied upon the earlier Full Bench
decision in Abdul Ghani v. Musammat Babni[5] and Balmukund v.
Dalu[6]. An opinion was expressed by this Court that once the finding
was returned that the defendant was in possession as a licensee,
there was no difficulty in affirming the decree for ejectment, even
though the plaintiff had originally claimed ejectment on the ground
of tenancy and not specifically on the ground of licence. In that
context it was observed thus: -
“15.
... In the present case, having regard to all the facts, we are
unable to hold that the High Court erred in confirming the decree for
ejectment passes by the trial Court on the ground that the defendant
was in possession of the suit premises as a licensee. In this case,
the High Court was obviously impressed by the thought that once the
defendant was shown to be in possession of the suit premises as a
licensee, it would be built to require the plaintiff to file another
suit against the defendant for ejectment on that basis. We are not
prepared to hold that in adopting this approach in the circumstances
of this case, the High Court can be said to have gone wrong in law.”
16.
Before we proceed to state the ratio in Rajendra Tiwary’s case, we
think it seemly to advert to the principle stated in Biswanath
Agarwalla v. Sabitri Bera and others[7] as the same has been
strongly relied upon by the learned senior counsel for the appellant.
In the said case, the question that was posed is whether a civil
court can pass a decree on the ground that the defendant is a
trespasser in a simple suit for eviction. In the said case the
learned single Judge of the Calcutta High Court, considering the
issues framed and the evidence laid, had held that although the
plaintiffs had failed to prove the relationship of landlord and
tenant by and between them and the defendant or that the defendant
had been let into the tenanted premises on leave and licence basis,
the respondent-plaintiffs were entitled to a decree for possession on
the basis of their general title. This Court took note of the relief
prayed, namely, a decree for eviction of the defendant from the
schedule premises and for grant of mesne profit in case the eviction
is allowed at certain rates. The Court proceeded on the base that the
plaintiff had proved his right, title and interest. The Court
observed that the landlord in a given case, although may not be able
to prove the relationship of landlord and tenant, yet in the event he
proves the general title, may obtain a decree on the basis
thereunder. But regard being had to the nature of the case the Court
observed that the defendant was entitled to raise a contention that
he had acquired indefeasible title by adverse possession. The Court
referred to the decision in Bhagwati Prasad (supra) and, eventually,
came to hold as follows: -
“27.
The question as to whether the defendant acquired title by adverse
possession was a plausible plea. He, in fact, raised the same before
the appellate court. Submission before the first appellate court by
the defendant that he had acquired title by adverse possession was
merely argumentative in nature as neither there was a pleading nor
there was an issue. The learned trial court had no occasion to go
into the said question. We, therefore, are of the opinion that in a
case of this nature an issue was required to be framed.”
Thereafter, the two-Judge Bench issued the following directions:
-
“29.
However, we are of the opinion that keeping in view the peculiar
facts and circumstances of this case and as the plaintiffs have filed
the suit as far back as in the year 1990, the interest of justice
should be subserved if we in exercise of our jurisdiction under
Article 142 of the
Constitution of India issue the following directions with a view to
do complete justice to the parties.
i)
The plaintiffs may file an application for grant of leave to amend
their plaint so as to enable them to pray for a decree for eviction
of the defendant on the ground that he is a trespasser.
ii)
For the aforementioned purpose, he shall pay the requisite court fee
in terms of the provisions of the Court
Fees Act, 1870.
iii)
Such an application for grant of leave to amend the plaint as also
the requisite amount of court fees should be tendered within four
weeks from date.
iv)
The appellant-defendant would, in such an event, be entitled to file
his additional written statement.
v)
The learned trial Judge shall frame an appropriate issue and the
parties would be entitled to adduce any other or further evidence on
such issue.
vi)
All the evidences brought on record by the parties shall, however, be
considered by the court for the purposes of disposal of the suit.
vii)
The learned trial Judge is directed to dispose of the suit as
expeditiously as possible and preferably within three months from the
date of filing of the application by the plaintiffs in terms of the
aforementioned Direction (i).”
17.
At this stage it is necessary to dwell upon the facet of
applicability of the said authorities to the lis of the present
nature. As per the exposition of facts, the analysis made and the
principles laid down in both the cases, we notice that the civil
action was initiated under the provisions of Transfer
of Property Act, 1882. In Bhagwati Prasad’s case the Court
opined that a decree for ejectment could be passed on general title
as the defendant was a licensee. In Biswanath Agarwalla’s case the
Court took note of the concept of general title and the plausible
plea of adverse possession and granted liberty to the plaintiff to
amend the plaint seeking a decree for recovery of possession and pay
the required court fee under the Court-fees
Act, 1870. That apart, certain other directions were issued. We
may repeat at the cost of repetition that the suits were instituted
under the Transfer of
Property Act. The effect of the same and its impact on difference
of jurisdiction on a civil court in exercising power under the
Transfer of Property
Act and under special enactments relating to eviction and other
proceedings instituted between the landlord and tenant, we shall
advert to the said aspects slightly at a later stage.
18.
Presently, we shall analyse the principles stated in Rajendra Tiwary
(supra). In the said case the respondent-plaintiff had filed a suit
for eviction under the Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1982 on many a ground. The learned trial Judge,
appreciating the evidence on record, dismissed the suit for eviction
holding that there was no relationship of landlord and tenant between
the plaintiff and the defendant. However, he had returned a finding
that the plaintiff had title to the suit premises. The appellate
court affirmed the judgment of the learned trial Judge and dismissed
the appeal. In second appeal the High Court reversed the decisions of
the courts below and allowed the appeal taking the view that a decree
for eviction could be passed against the defendant on the basis of
the title of the plaintiff and, accordingly, remanded the case to the
first appellate court on the ground that it had not recorded any
finding on the question of the title of the parties. It was contended
before this Court that as the trial court was exercising limited
jurisdiction under the Rent
Act, the question of title to the suit premises could not be
decided inasmuch as that had to be done by a civil court in its
ordinary jurisdiction and, therefore, the High Court erred in law in
remanding the case to the first appellate court for deciding the
question of title of the plaintiff and passing an equitable decree
for eviction of the defendant. The Court posed a question whether on
the facts and in the circumstances of the case the High Court was
right in law holding that an equitable decree for eviction of the
defendant could be passed under Order VII Rule 7 of the Civil
Procedure Code and remanding the case to the first appellate court
for recording its finding on the question of title of the parties to
the suit premises and for passing an equitable decree for eviction
against the defendant if the plaintiffs were found to have title
thereto. Answering the question the learned Judges proceeded to state
thus:
-
“It
is evident that while dealing with the suit of the plaintiffs for
eviction of the defendant from the suit premises under clauses (c)
and (d) of sub-section (1) of Section
11 of the Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The sine qua
non for granting the relief in the suit, under the Act, is that
between the plaintiffs and the defendant the relationship of
“landlord and tenant” should exist. The scope of the enquiry
before the courts was limited to the question: as to whether the
grounds for eviction of the defendant have been made out under the
Act. The question of title of the parties to the suit premises is not
relevant having regard to the width of the definition of the terms
“landlord” and “tenant” in clauses
(f)
and (h), respectively, of Section
2 of the Act.”
19.
In course of deliberation, the two-Judge Bench distinguished the
authorities in Firm Sriniwas Ram Kumar v. Mahabir Prasad[8] and
Bhagwati Prasad (supra) by observing thus: -
“15.
These are cases where the courts which tried the suits were ordinary
civil courts having jurisdiction to grant alternative relief and pass
decree under Order VII Rule 7. A Court of Rent Controller having
limited jurisdiction to try suits on grounds specified in the special
Act obviously does not have jurisdiction of the ordinary civil court
and therefore cannot pass a decree for eviction of the defendant on a
ground other than the one specified in the Act. If, however, the
alternative relief is permissible within the ambit of the Act, the
position would be different.” [Emphasis supplied]
20.
Thereafter, the learned Judges proceeded to express thus:
“16.
In this case the reason for denial of the relief to the plaintiffs by
the trial court and the appellate court is that the very foundation
of the suit, namely, the plaintiffs are the landlords and the
defendant is the tenant, has been concurrently found to be not
established. In any event inquiry into title of the plaintiffs is
beyond the scope of the court exercising jurisdiction under the Act.
That being the position the impugned order of the High Court
remanding the case to the first appellate court for recording finding
on the question of title of the parties, is unwarranted and
unsustainable. Further, as pointed out above, in such a case the
provisions of Order VII Rule 7 are not attracted.” [Underlining is
ours]
21.
At this juncture, we may fruitfully refer to the principles stated in
Dr. Ranbir Singh v.
Asharfi Lal[9]. In the said case the Court was dealing with the
case instituted by the landlord under Rajasthan Premises (Control of
Rent and Eviction)
Act, 1950 for eviction of the tenant who had disputed the title
and the High Court had decided the judgment and decree of the courts
below and dismissed the suit of the plaintiff seeking eviction. While
adverting to the issue of title the Court ruled that in a case where
a plaintiff institutes a suit for eviction of his tenant based on the
relationship of the landlord and tenant, the scope of the suit is
very much limited in which a question of title cannot be gone into
because the suit of the plaintiff would be dismissed even if he
succeeds in proving his title but fails to establish the privity of
contract of tenancy. In a suit for eviction based on such
relationship the Court has only to decide whether the defendant is
the tenant of the plaintiff or not, though the question of title if
disputed, may incidentally be gone into, in connection with the
primary question for determining the main question about the
relationship between the litigating parties. In the said case the
learned Judges referred to the authority in LIC
v. India Automobiles & Co.[10] wherein the Court had observed
that in a suit for eviction between the landlord and tenant, the
Court will take only a prima facie decision on the collateral issue
as to whether the applicant was landlord. If the Court finds
existence of relationship of landlord and tenant between the parties
it will have to pass a decree in accordance with law. It was further
observed therein that all that the Court has to do is to satisfy
itself that the person seeking eviction is a landlord, who has prima
facie right to receive the rent of the property in question. In order
to decide whether denial of landlord’s title by the tenant is bona
fide the Court may have to go into tenant’s contention on the issue
but the Court is not to decide the question of title finally as the
Court has to see whether the tenant’s denial of title of the
landlord is bona fide in the circumstances of the case.
22.
On a seemly analysis of the principle stated in the aforesaid
authorities, it is quite vivid that there is a difference in exercise
of jurisdiction when the civil court deals with a lis relating to
eviction brought before it under the provisions of Transfer
of Property Act and under any special enactment pertaining to
eviction on specified grounds. Needless to say, this court has
cautiously added that if alternative relief is permissible within the
ambit of the Act, the position would be different. That apart, the
Court can decide the issue of title if a tenant disputes the same and
the only purpose is to see whether the denial of title of the
landlord by the tenant is bona fide in the circumstances of the case.
We respectfully concur with the aforesaid view and we have no
hesitation in holding that the dictum laid down in Bhagwati Prasad
(supra) and Bishwanath Agarwalla (supra) are distinguishable, for in
the said cases the suits were filed under the Transfer
of Property Act where the equitable relief under Order VII Rule 7
could be granted.
23.
At this juncture, we are obliged to state that it would depend upon
the Scheme of the Act
whether an alternative relief is permissible under the Act. In
Rajendra Tiwari’s case the learned Judges, taking into
consideration the width of the definition of the “landlord” and
“tenant” under the Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1982, had expressed the opinion. The dictionary clause
under the Act, with which we are concerned herein, uses similar
expression. Thus, a limited enquiry pertaining to the status of the
parties, i.e., relationship of landlord and tenant could have been
undertaken. Once a finding was recorded that there was no
relationship of landlord and tenant under the Scheme
of the Act, there was no necessity to enter into an enquiry with
regard to the title of the plaintiff based on the sale deed or the
title of the defendant as put forth by way of assertion of long
possession. Similarly, the learned appellate Judge while upholding
the finding of the learned trial Judge that there was no relationship
of landlord and tenant between the parties, there was no warrant to
reappreciate the evidence to overturn any other conclusion. The High
Court is justified to the extent that no equitable relief could be
granted in a suit instituted under the Act. But, it has committed an
illegality by affirming the judgment and decree passed by the learned
trial Judge because by such affirmation the defendant becomes the
owner of the premises by acquisition of title by prescription. When
such an enquiry could not have been entered upon and no finding could
have been recorded and, in fact, the High Court has correctly not
dwelled upon it, the impugned judgment to that extent is vulnerable
and accordingly we set aside the said affirmation.
24.
Presently we shall proceed to address ourselves, which is necessary,
as to what directions we should issue and with what
observations/clarifications. In Rajendra Tiwary (supra), the two-
Judge Bench had observed that the decision rendered by this Court did
not preclude the plaintiff for filing the suit for enquiry of title
and for recovery of possession of the suit premises against the
defendant. In the said case a suit for specific performance of
contract filed against the defendant was pending. The Court had
directed that the suit to be filed by the plaintiff for which a three
months’ time was granted should be heard together with the suit
already instituted by the defendant. In the present case, the suit
was instituted on the basis of purchase. A plea was advanced that the
defendant had already perfected his title by prescription as he was
in possession for 18 to 19 years. The trial court had accepted the
plea and the appellate court had reversed it. The High Court had
allowed the second appeal holding that when the relationship of
landlord and tenant was not established, a decree for eviction could
not be passed. We have already opined that the High Court could not
have affirmed the judgment and decree passed by the trial court as it
had already decided the issue of adverse possession in favour of the
defendant, though it had neither jurisdiction to enquire into the
title nor that of perfection of title by way of adverse possession as
raised by the defendant. Under these circumstances we are disposed to
think that the plaintiff is entitled under law to file a fresh suit
for title and recovery of possession and such other reliefs as the
law permits.
25.
At this juncture, we think it apt to clarify the position, for if we
leave at this when a fresh suit is filed the defendant would be in a
position to advance a plea that the right of the plaintiff had been
extinguished as he had not filed the suit for recovery of possession
within the time allowed by law. It is evincible that the suit for
eviction was instituted on 21.3.1978 and if the time is computed from
that day the suit for which we have granted liberty would definitely
be barred by limitation. Thus, grant of liberty by us would be
absolutely futile. Hence, we think it imperative to state the legal
position as to why we have granted liberty to the plaintiff. We may
hasten to add that we have affirmed the judgment of the High Court
only to the extent that as the relationship of landlord and tenant
was not established the defendant was not liable for eviction under
the Act. The issue of right, title and interest is definitely open.
The appellant is required to establish the same in a fresh suit as
required under law and the defendant is entitled to resist the same
by putting forth all his stand and stance including the plea of
adverse possession. The fulcrum of the matter is whether the
institution of the instant suit for eviction under the Act would
arrest of running of time regard being had to the concept of adverse
possession as well as the concept of limitation. The conception of
adverse possession fundamentally contemplates a hostile possession by
which there is a denial of title of the true owner. By virtue of
remaining in possession the possessor takes an adverse stance to the
title of the true owner. In fact, he disputes the same. A mere
possession or user or permissive possession does not remotely come
near the spectrum of adverse possession. Possession to be adverse has
to be actual, open, notorious, exclusive and continuous for the
requisite frame of time as provided in law so that the possessor
perfects his title by adverse possession. It has been held in Secy.
Of State for India In Council v. Debendra Lal Khan[11] that the
ordinary classical requirement of adverse possession is that it
should be nec vi, nec clam, nec precario
26.
In S.M. Karim v. Mst.
Bibi Sakina[12] , it has been ruled that adverse possession must be
adequate in continuity, in publicity and extent and a plea is
required at the least to show when possession becomes adverse so that
the starting point of limitation against the party affected can be
found.
27.
In Karnataka Board of
Wakf v. Govt. of India[13] it has been opined that adverse
possession is a hostile possession by clearly asserting hostile title
in denial of the title of the true owner. It is a well-settled
principle that a party claiming adverse possession must prove that
his possession is ‘nec vi, nec clam, nec precario’, that is,
peaceful, open and continuous. The possession must be adequate in
continuity, in publicity and in extent to show that their possession
is adverse to the true owner. It must start with a wrongful
disposition of the rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory period. Thereafter, the
learned Judges observed thus: -
“11.
... Plea of adverse possession is not a pure question of law but a
blended one of fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into possession, (b)
what was the nature of his possession, (c) whether the factum of
possession was known to the other party,
(d)
how long his possession has continued, and (e) his possession was
open and undisturbed. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of
the true owner, it is for him to clearly plead and establish all
facts necessary to establish his adverse possession.”
28.
It is to be borne in mind that adverse possession, as a right, does
not come in aid solely on the base that the owner loses his right to
reclaim the property because of his willful neglect but also on
account of the possessor’s constant positive intent to remain in
possession. It has been held in P.T.
Munichikkanna Reddy and others v. Revamma and others[14].
29.
Regard being had to the aforesaid concept of adverse possession, it
is necessary to understand the basic policy underlying the statutes
of limitation. The
Acts of Limitation fundamentally are principles relating to
“repose” or of “peace”. In Halsbury’s Laws of England,
Fourth Edition, Volume 28, Para 605 it has been stated thus: -
“605.
Policy of the Limitation Acts. – The courts have expressed at least
three differing reasons supporting the existence of statutes of
limitation, namely (1) that long dormant claims have more of cruelty
than justice in them, (2) that a defendant might have lost the
evidence to disprove a stale claim, and (3) that persons with good
causes of actions should pursue them with reasonable diligence.”
30.
These principles have been accepted by this Court keeping in view the
statutory provisions of the Indian
Limitation Act. The fundamental policy behind limitation is that
if a person does not pursue his remedy within the specified time
frame, the right to sue gets extinguished. In the present case the
pivotal point is whether a good cause because a litigant cannot
deprive the benefit acquired by another in equity by his own inaction
and negligence, as assumed by the plaintiff, has been lost forever as
he has not been able to prove the relationship of landlord and tenant
in a suit for eviction which includes delivery of possession.
31.
Keeping in view the aforesaid principles it is required to be
scrutinized whether the time spent in adjudication of the present
suit and the appeal arrests the running of time for the purpose of
adverse possession. In this regard, we may profitably refer to the
decision in Mst. Sultan
Jehan Begum and Ors. v. Gul Mohd. and Ors.[15] wherein following
principles have been culled out: -
“(1)
When a person entitled to possession does not bring a suit against
the person in adverse possession within the time prescribed by law
his right to possession is extinguished. From this it only follows
that if the former brings a suit against the latter within the
prescribed period of limitation his right will not be extinguished.
(2)
If a decree for possession is passed in that suit in his favour he
will be entitled to possession irrespective of the time spent in the
suit and the execution and other proceedings.
(3)
The very institution of the suit arrests the period of adverse
possession of the defendant and when a decree for possession is
passed against the defendant the plaintiff's right to be put in
possession relates back to the date of the suit.
(4)
Section 28 of the
Limitation Act merely declares when the right of the person out of
possession is extinguished. It is not correct to say that that
section confers title on the person who has been in adverse
possession for a certain period. There is no law which provides for
'conferral of title' as such on a person who has been in adverse
possession for whatever length of time.
(5)
When it is said that the person in adverse possession 'has perfected
his title', it only means this. Since the person who had the right of
possession but allowed his right to be extinguished by his inaction,
he cannot obtain the possession from the person in adverse
possession, and, as its necessary corollary the person who is in
adverse possession will be entitled to hold his possession against
the other not in possession, on the well settled rule of law that
possession of one person cannot be disturbed by any person except one
who has a better title.”
32.
In Sultan Khan s/o Jugge Khan v. State of Madhya Pradesh and
another[16] a proceeding was initiated for eviction of the plaintiff
under Section 248 of the M.P. Land Revenue Code, 1959. Facing
eviction plaintiff filed a suit for declaration of his right, title
and interest on the bedrock of adverse possession. His claim was that
he had been in uninterrupted possession for more than 30 years.
Repelling the contention the learned Judge observed thus:
“It
must, therefore, be accepted that filing of the suit for recovery of
possession, by itself, is sufficient to arrest the period of adverse
possession and a decree for possession could be passed irrespective
of the time taken in deciding the suit. If this principle is applied
to the proceedings under Section 248 of the Code, it must be held
that in case a person has not perfected his title by adverse
possession before start of the proceedings, he cannot perfect his
title during the pendency of the proceedings. Adverse possession of
the person in possession must be deemed to have been arrested by
initiation of these proceedings.”
33.
We have referred to the aforesaid pronouncements since they have been
approved by this Court in Babu
Khan and others v. Nazim Khan (dead) by L.Rs. and others[17]
wherein after referring to the aforesaid two decisions and the
decision in Ragho Prasad v. P.N. Agarwal[18] the two-Judge Bench
ruled thus: -
“The
legal position that emerges out of the decisions extracted above is
that once a suit for recovery of possession against the defendant who
is in adverse possession is filed, the period of limitation for
perfecting title by adverse possession comes to a grinding halt. We
are in respectable agreement with the said statement of law. In the
present case, as soon as the predecessor-in-interest of the applicant
filed an application under Section
91 of the Act for restoration of possession of the land against
the defendant in adverse possession, the defendant's adverse
possession ceased to continue thereafter in view of the legal
position that such adverse possession does not continue to run after
filing of the suit, we are, therefore, of the view that the suit
brought by the plaintiff for recovery of possession of the land was
not barred by limitation.”
34.
Coming to the case at hand the appellant had filed the suit for
eviction. The relief sought in the plaint was for delivery of
possession. It was not a forum that lacked inherent jurisdiction to
pass a decree for delivery of possession. It showed the intention of
the plaintiff to act and to take back the possession. Under these
circumstances, after the institution of the suit, the time for
acquiring title by adverse possession has been arrested or remained
in a state of suspension till the entire proceedings arising out of
suit are terminated. Be it ingeminated that if by the date of present
suit the defendant had already perfected title by adverse possession
that would stand on a different footing.
35.
In view of the aforesaid analysis, we permit the appellant-
plaintiff
to institute a suit as stated in paragraph 24 within a period of two
months from today.
36.
Resultantly, the appeal is allowed leaving the parties to bear their
respective costs.
……………………………….J.
[Anil R. Dave]
……………………………….J.
[Dipak Misra]
New
Delhi;
November 13, 2013.
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