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
others17 wherein after referring to he aforesaid two
decisions and the decision in Ragho Prasad v. P.N.
Agarwal18 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.”
Reportable
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
Versus
Amrutlal
Citation;(2014) 2 SCC788
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
Page 3
4
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, was
as
put
forth
by
the
respondent,
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
Page 6
7
Pillai vs. Panai Minor through Pandiya Thevan1,
Bhagwati
Prasad
v.
Chandramaul2
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
1
2
3
AIR 1947 Madras 282
AIR 1966 SC 735
AIR 1975 Cal 200
Page 7
8
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 another4
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
relationship is not proved.
4
if
the
landlord-tenant
A manifest error has been
AIR 2002 SC 136
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
Page 10
11
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 Babni5 and Balmukund v. Dalu6.
An
opinion was expressed by this Court that once the finding
5
6
25 All 256
25 All 498
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
others7 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
7
(2009) 15 SCC 693
Page 15
16
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
respondent-plaintiffs
on
leave
were
and
entitled
licence
to
a
possession on the basis of their general title.
basis, the
decree for
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.
Page 19
20
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
Page 20
21
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
Page 21
22
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 Prasad8 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]
8
AIR 1951 SC 177
Page 22
23
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 Lal9. 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
9
(1995) 6 SCC 580
Page 23
24
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
10
(1990) 4 SCC 286
Page 24
25
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
Page 25
26
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.,
Page 26
27
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
Page 27
28
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
Page 28
29
appellate court had reversed it.
allowed
The High Court had
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
Page 29
30
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.
possession
fundamentally
The conception of adverse
contemplates
a
hostile
Page 30
31
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 Khan11 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 Sakina12 , 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.
11
12
(1933-34) 61 IA 78 : AIR 1934 PC 23
AIR 1964 SC 1254
Page 31
32
27. In Karnataka Board of Wakf v. Govt. of India13 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
13
(2004) 10 SCC 779
Page 32
33
all facts necessary
possession.”
to
establish
his
adverse
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 others14.
29. Regard being had to the aforesaid concept of adverse
possession, it is necessary to understand the basic policy
underlying the statutes of limitation.
Limitation
fundamentally
“repose” or of “peace”.
are
principles
The Acts of
relating
to
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
14
(2007) 6 SCC 59
Page 33
34
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.
Page 34
35
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
15
AIR 1973 MP 72
Page 35
36
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 another16 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.”
16
1991 MPLJ 81
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
others17 wherein after referring to the aforesaid two
decisions and the decision in Ragho Prasad v. P.N.
Agarwal18 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
AIR 2001 SC 1740
1969 All LJ 975
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.
New Delhi;
[Dipak Misra]
November 13, 2013.
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