//
you're reading...
legal issues

M.P. Accommodation Control Act, 1961 (for brevity “the Act”) to file the suit for eviction.= In a suit for eviction and mesne profits , on failure to prove relationship of land lord and tenant , no eviction should be granted basing on title, plaintiff ought have to file a suit for declaration of title and possession, and the period indulged in this proceedings arrest the period of adverse possession = Tribhuvanshankar … Appellant Versus Amrutlal …Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40966

M.P.  Accommodation  Control Act, 1961 (for brevity “the Act”) to file the  suit  for

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

 eviction.= In a suit for eviction and mesne profits  , on failure to prove relationship of land lord and tenant , no eviction should be granted basing on title, plaintiff ought have to file a suit  for declaration of title and possession, and the period indulged in this proceedings arrest the period of adverse possession  =

 

 

 

 “(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?” =

 

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.”

 

 

 

 

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.

 

 

 

       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.

 

 

 

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.
New Delhi; [Dipak Misra]
November 13, 2013.
———————–
[1] AIR 1947 Madras 282
[2] AIR 1966 SC 735
[3] AIR 1975 Cal 200
[4] AIR 2002 SC 136
[5] 25 All 256
[6] 25 All 498
[7] (2009) 15 SCC 693
[8] AIR 1951 SC 177
[9] (1995) 6 SCC 580

 

[10] (1990) 4 SCC 286
[11] (1933-34) 61 IA 78 : AIR 1934 PC 23
[12] AIR 1964 SC 1254
[13] (2004) 10 SCC 779
[14] (2007) 6 SCC 59
[15] AIR 1973 MP 72
[16] 1991 MPLJ 81
[17] AIR 2001 SC 1740
[18] 1969 All LJ 975

 

 

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,006,816 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,876 other followers

Follow advocatemmmohan on WordPress.com