Madhya Pradesh High Court
General Mines And Quarries Ltd. vs Kartar Singh Prem Singh And Ors. on 4 October, 1991
Equivalent citations: 1992(0)MPLJ563
JUDGMENT K.M. Agarwal, J.
1. This second appeal by the plaintiff is directed against the reversing judgment and decree of the lower appellate Court. It was admitted for hearing on 29-9-1977 on the questions raised in paragraph 7 of the memo of appeal. The following questions of law were proposed in paragraph 7 of the memo of second appeal : -
"(i) Whether in absence of plea and proof of the essential ingredients (Nec vi, Nec clam, Nec Precario) of adverse possession the suit can be held to be time barred?
"(ii) Whether the character of the possession prior to 8-11-1960 or 11-9-1962 being on the Defendant's own showing as that of agent or of a person claiming subordinate title, can be considered to be adverse in character and the suit can be held to be time barred?
"(iii) Whether the construction put on Exs.P.7 and P.22 is erroneous and has resulted in failure of justice?"
On 3-9-1991, LA. No. 6638/91 was filed on behalf of the appellant for permission to urge the following additional question of law at the time of hearing of appeal:
"Whether on facts and circumstances, the right of a Bhumiswami accrues upon the defendants by operation of Section 190 of M.P. Land Revenue Code, 1959 ?"
The learned counsel for the appellant submitted that the proposed additional question of law arose out of paragraph 18 of the impugned judgment of the lower appellate Court. The learned counsel for the legal representatives of the deceased respondent did not object hearing on the proposed additional question of law. Accordingly the learned counsel for the parties were heard on the questions framed by this Court as also on the proposed additional question of law.
2. It is not in dispute that initially Khasra Nos. 2844/1, 2844/2 and 2845, area 1.49 acres of land, (in short, the "suit land"), situated at Sarsed Pargana, Chhatarpur were held in Bhumiswami right by the appellant and that they were recorded in its favour. The deceased respondent Prem Singh was for some time in the employment of the appellant. According to the appellant, it was limited company with its head office at Jullundhar and branch office at Bijawar. The deceased respondent Prem Singh was in its employment as a forwarding agent posted at Harpalpur and accordingly as agent of the appellant, he was in possession of the suit land. In 1948, the employment of the deceased respondent with the appellant came to an end, but he continued to be in possession of the suit land. Somehow he obtained a 'Patta' from the Court of Naib Tahsildar in respect of the suit land on the basis of his application (Ex.P.7) filed for the purpose on 8-11-1960. Appellant subsequently filed an application under Section 176(2) of the M.P. Land Revenue Code, 1959 (in short, the "Code"), for cancellation of the said -'Patta' in favour of the deceased respondent and for restoration of Bhumiswami right over the suit land. The application was rejected by the Naib Tahsildar. Appeals and revision preferred against this order were dismissed, but in Miscellaneous Petition No. 9 of 1968, decided on 12-2-1971 (Ex.P.4), all the orders and proceedings of the revenue Courts pursuant to the deceased respondent's application dated 8-11-1960 were quashed by holding them to be without jurisdiction. The appellant-thereafter filed the present suit on 4-9-1972 for declaration of its title as Bhumiswami over the suit land, for possession thereof and for mesne profits at the rate of Rs. 100/- per year from 8-11-1960. The suit was resisted mainly on two grounds : That the defendant had perfected his title by adverse possession and further that the company had ceased to exist and, therefore, the suit was not maintainable. The trial Court was pleased to decree the suit, restricting past mesne profits to a period of three years prior to the date of suit. Being aggrieved, the deceased defendant filed an appeal, which was allowed by the impugned judgment and decree of the lower appellate Court and the suit of the appellant was dismissed on the ground that the deceased defendant had perfected his title by adverse possession. The plaintiff has, therefore, preferred this second appeal before this Court, which was admitted for hearing on 29-9-1977 on the aforesaid questions of law. During the pendency of this second appeal, the respondent died and his legal representatives were brought on record.
3. Having heard the learned counsel for the parties, I am of the view that the judgment and decree of the trial Court deserve to be restored with certain modifications after setting aside those of the lower appellate Court. Mere possession, howsoever old, does not become adverse to the true owner. Adverse possession means express or implied denial of the title of true owner. In the present case, it was alleged in paragraph 30 of the written statement that since January 1946, the defendant was in possession of the land in his own right, he was paying the land revenue and his possession was for more than 12 years. It has been proved that the plaintiff was the recorded Bhumiswami of the suit land. The defendant was in its employment till February 1948 and was in possession of the land on its behalf. He was paying land revenue in the name of the plaintiff, as evidenced by receipts Ex.D.4 to Ex.D.17. How then his possession became adverse to that of the plaintiff ? It was neither alleged, nor proved that after termination of his employment, the defendant surrendered possession of the land to his master and, thereafter, dispossessed it. There was even no overt act, showing disclaimer of the plaintiffs title over the suit land. The learned counsel for the legal representatives of the deceased defendant argued that as the defendant continued to remain in possession of the suit land even after termination of his service, his possession, thereafter, must be deemed to be illegal and was also treated to be so by the plaintiff as evident from plaint paragraphs 4 and 5 and from notice dated 24-4-1953 (Ex.D.3) and, therefore, the possession of the defendant after termination of his employment must be held to be hostile to the plaintiff. The argument deserves to be rejected. Illegal possession does not necessarily mean hostile or adverse possession. Possession of immovable property by a tenant even after determination of his tenancy may be called illegal, but that can never be held hostile or adverse to the landlord. In the instant case, if after termination of the employment, the plaintiff did not ask for possession of the land, the defendant could not claim his possession over it to be adverse. His possession would continue to be permissive and in the capacity of ex-servant of the plaintiff. Accordingly he would always be liable to restore possession of the land to his master. In Bimmbai v. Bhojraj, 1986 MPLJ 551, and Mst. Aliaria v. Chhannu, 1973 U.J.S.C. 317, it was held that where a person starts managing the property of a minor as his agent and continues to manage the same even after minor has become major, he cannot acquire a title to the property by adverse possession, although he continues to be in possession for more than 12 years after the minor attains majority. The same principle would apply in a case where a person starts managing the property of his employer as his agent and continues to manage the same even after the date of termination of agency. In Gaya Parshad v. Nirmal Chander, AIR 1984 SC 930, similar view was taken by holding that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession, but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It was further held that it is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.
4. It was argued by the learned counsel for the legal representatives of the deceased respondent that the finding of adverse possession recorded by the lower appellate court being a finding of fact is not liable to be disturbed in a second appeal. In support of his contention, he relied on P. Velayudhan v. K. I. Moidu, 1990 (Supp) SCC 9 and Corporation of Bangalore City v. M. Papaiah, AIR 1989 SC 1809. The argument deserves to be rejected. In the first case it was held that the High Court was not justified in interfering with the findings of fact after reappraisal of evidence adduced by the parties. In the second case it was held that interpretation of revenue record was not question of law. In the present case, what one finds is that in paragraph 19 of the impugned judgment the lower appellate court came to a definite finding that prior to 1948, the defendant was in possession of the suit land as agent of the plaintiff. Similar finding was recorded by the trial Court in paragraph 16 of its judgment. It was further found by the lower appellate Court as also by the trial Court that even after termination of his employment, the defendant continued to be in possession of the suit land for a period of more than 12 years. On these facts, the conclusion arrived at by the lower appellate Court was that of adverse possession. The conclusion was that of law and not that of fact. It is well settled that the finding of fact may not be liable to be set aside in second appeal, but the conclusion of law based on such finding of fact may be disturbed, if it is demonstrated that such conclusion of law is perverse or bad in law. In the present case it has been demonstrated that for the reasons aforesaid the conclusion of adverse possession drawn by the lower appellate Court was ex facie bad and against the principles laid down by this court and by the Apex Court in this regard.
5. The suit land was admittedly in the Vindhya Pradesh region of the State. It was not the case of the defendant that he was sub-tenant of the plaintiff within the meaning of Section 185(1)(iii) of the M.P. Land Revenue Code, 1959 and, therefore, an occupancy tenant in respect of the suit land Accordingly he could not claim the status of a Bhumiswami by virtue of Section 190 of the Code. The finding to the contrary recorded by the lower appellate Court in paragraph 18 of its impugned judgment deserves to be set aside.
6. The learned counsel for the legal representatives of the deceased respondent further argued that the suit of the plaintiff filed on 4-9-1972 was barred by time, because it was filed after expiry of more than 12 years from the date of termination of defendant's sendee, or from notice dated 24-4-1953 (Ex.D. 3) demanding mesne profit, rent and possession of the land. It was submitted that the plaintiff was not entitled to exclude the period between 8-11-1960 to 12-2-1971, i.e., the period spent in prosecuting the matter in revenue Courts and the date of decision of the High Court, declaring all the orders and proceedings of the revenue Courts to be without jurisdiction, by resorting to Section 14 of the Limitation Act, 1963. According to the learned counsel, the revenue Courts could not be said to be Courts within the meaning of Section 14 of the Act. Reliance was placed in Yeshwant Rao v. Sampat, 1978 MPLJ 853 = AIR 1979 MP 21, and Athani Municipality v. Labour Court, Hubli, AIR 1969 SC 1335. This argument has no substance. In the case of this Court, the distinction between the Court and the tribunal was pointed out in the context of Commissioner appointed under Workmen's Compensation Act, 1923. In the case of Supreme Court it was held that an Industrial Tribunal and labour court dealing with applications or references under Industrial Disputes Act, 1947 were not the Courts within the meaning of Courts which were to be governed by the various divisions of the schedule to the Limitation Act, 1963 and, therefore, that Act would not be applicable to such Tribunals or Courts. The revenue Courts do not come within the purview of Tribunals on the standards laid down by this Court and by the Supreme Court in the aforesaid cases. A court as distinguished from quasi-judicial tribunal is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that parties are entitled as matter of right to be heard in support of their claim and to adduce evidence in proof of it. It imports an obligation on the part of the authority to decide the matter on a consideration of the evidence in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from quasi judicial Tribunal, what has to be decided is whether having regard to the provisions of the Act, it possesses all the attributes of a Court. In this connection the decisions of the Supreme Court in Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66, Virinder Kumar v. The State of Punjab, AIR 1956 SC 153 and G. Nageswara Rao v. A.P.S.R.T. Corpn., AIR 1959 SC 153, may be referred. Looked in this background and having regard to the provisions of the M.P. Land Revenue Code, 1959 the only conclusion that can be drawn is that the revenue Courts possess all the attributes of a Court and that they are also conferred status of Courts by virtue of Section 31 of the M.P. Land Revenue Code, 1959. Accordingly, if the period between 8-11-1960 to 12-2-1971 is excluded the suit filed on 4-9-1972 could not be said to have been filed beyond 12 years from the date of the alleged unauthorised possession of the defendant. Even otherwise, Article 64 of the Limitation Act, 1963 prescribes period of 12 years from the date of dispossession for a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Similarly Article 142 of the earlier Act of 1908 prescribed 12 years' limitation from the date of dispossession or discontinuance for a suit for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession. In Kesar Singh v. Balwant Singh, AIR 1967 SC 487, it was held that where originally the possession of the defendant was permissive, there could be no question of application of Article 142 of the Limitation Act, 1908, even though the defendant was in possession of the land for over 12 years before the date of suit. It was also held that the defendant could succeed if he could prove adverse possession under Article 144 of the Act of 1908 for over 12 years before the date of suit. As earlier pointed out, deceased defendant has failed to prove that he was in adverse possession of the suit land for over 12 years before the date of suit. He also failed to prove that the plaintiff was ever dispossessed or discontinued from possession of the suit land. On the contrary, the evidence brought on record shows and also held by both the Courts below that the initial possession of the defendant was permissive in nature. There was no allegation of any overt act on the part of the defendant, much less any evidence, to show that he was claiming adverse title to that of the plaintiff. I am, therefore, of the view that the suit of the plaintiff was not barred by time.
7. It was next argued that the plaintiff company was not in existence and, therefore, the suit was not maintainable. According to the learned counsel for the legal representatives of the deceased respondent, the plaintiff was obliged to file certificate of incorporation issued by the Registrar, which it did not file and, therefore, the suit was liable to be dismissed. Reliance was placed in Akola Gin Combination v. Northcote Ginning Factory, (1914) 10 N.L.R 98, Senaji Kapurchand v. Pannaji Devichand, AIR 1930 PC. 300 and Badri Prasad v. Nagarmal, AIR 1959 SC 559, besides relying on the provisions of Sections 33 and 34 of the Companies Act, 1956. This argument also deserves to be rejected. Section 33 of the Companies Act makes a provision for registration of memorandum and articles of a company and Section 34 thereof speaks of effect of such registration. There is no provision in the Companies Act similar to that of Section 69 of the Indian Partnership Act, 1932 barring a suit by the Secretary or by any Director or any other principal Officer of the corporation who is able to depose to the facts of the case. In Akola Gin Combination v. Northcote Ginning Factory (supra), the Court of Judicial Commissioner, Nagpur held that an association of persons not registered under the Companies Act, 1913 could not maintain a suit on a bond given by one of its members to its Secretary, Senaji Kapurchand v. Pannaji Devichand (supra) the Privy Council relied on the aforesaid decision of the Judicial Commissioner, Nagpur. In Badri Prasad v. Nagarmal (supra) the Supreme Court also held that suit by some of the members against other members of an association formed in contravention of Section 11(2) of the Companies Act, 1956 was not tenable. It was also held that the analogy of Section 69(3)(a) of the Partnership Act, 1932 does not apply to the case of an association of persons which is required to be registered under the Companies Act. To sum up, a suit by an unregistered company was held to be not maintainable in the aforesaid cases, but it was not said that the only mode of proving registration of a company was that of filing a certificate of incorporation issued by the Registrar of Companies. In paragraph 26 of his written statement, the deceased defendant did hot dispute that the plaintiff company was in existence, but his case was that the company had ceased to exist. Non registration of company is not the same as ceasure of its existence. One is different from the other. If the case of the defendant was that a legally constituted company was in existence, but for some reason or the other it was wound up, the burden was on him to prove the alleged winding up of the company. I also find several documents on record, including copies of balance sheets, Director's reports and the Registrar's letter dated 31-7-1973 (Ex.P.10/D), informing that as per record of his office, Shri Sardarilal Talwar was the Director of the plaintiff company since 8-3-1940 and that the company was in existence and its registered office was at Jullundhar since 9-7-1961. Accordingly the objection about maintainability of the suit on the ground of non registration of the plaintiff company also fails.
8. For the foregoing reasons, all the questions of law framed by this court on 29-9-1977 and the question of law additionally urged by filing LA. No. 6638/91 on 3-9-1991 are decided in favour of the appellant and against the deceased respondent. That leaves the question of mesne profits claimed by the plaintiff in the suit. Although mesne profits for a period of more than three years from the date of suit were claimed, the same could be claimed only for a period of three years prior to the date of suit. The further claim for the period beyond three years was barred by time. The trial Court had accordingly awarded mesne profits to the plaintiff for a period of three years prior to suit at the rate of Rs. 100/- per year. Pendente lite and post decree mesne profits at the same rate were also awarded. The plaintiffs right to claim such mesne profits cannot be denied. However, I find that the defendant has expired. He was paying the land revenue of the suit land and it is nowhere averred or proved that the amount paid by him by way of land revenue for and on behalf of the plaintiff was ever reimbursed by the plaintiff. It has also come in evidence that the defendant made improvements of the land at his own cost. Taking into account the totality of the circumstances appearing in the case and with a view to avoid past accounts between the parties in regard to management of the suit land by the defendant and the expenditure incurred by him after the improvement of the land, I am of the view that it would be just and equitable, as well as in fitness of things to award mesne profits of the land to the plaintiff at the rate of Rs. 100/- per year from the date of this judgment and not from any earlier date.
9. Accordingly this appeal succeeds and it is hereby allowed. The impugned judgment and decree of the lower appellate court are set aside and those of the trial Court are restored with this modification that the plaintiff shall be entitled to mesne profits at the rate of Rs. 100/- per year from the date of this judgment and till the date of delivery of possession. In the facts and circumstances of the case, the parties are directed to bear their costs as incurred throughout.