Rajasthan High Court - Jaipur
Devi Singh & Ors vs Rafiq Ahmed & Ors on 21 January, 2014
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JAIPUR BENCH ORDER Devi Singh & Another Vs. Rafiq Ahmed & Another (S.B. Civil Second Appeal No.224/1993) S. B. Civil Second Appeal under Section 100 CPC against the judgment and decree dated 10-8-1993 in civil Regular Appeal No.109/1988 passed by Additional District Judge No.5, Jaipur City setting aside the judgment and decree dated 1-2-1984 passed by Additional Munsif Magistrate No.5 Jaipur City Jaipur dismissing the plaintiffs' suit for eviction and arrears of rent. Date of Order: January 21st, 2014. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. Ajeet Bhandari, for the appellants. Mr. S.M. Mehta, Senior Advocate and Mr. M.M. Ranjan, Senior Advocate with Mr. Amit Dadhich and Mr. Sandeep Jain for respondents. BY THE COURT:
This is a defendants-appellant (hereinafter `the defendant) appeal under Section 100 CPC aggrieved of the judgment and decree dated 10-8-1993 passed by the Additional District Judge No.5, Jaipur City, Jaipur as the lower appellate court inter alia directing the eviction of the defendant while setting aside the judgment and decree dated 1-2-1984 passed by Additional Munsif Magistrate No.5, Jaipur City Jaipur (the `trial court') dismissing respondents-plaintiffs (hereinafter `the plaintiffs) suit for eviction and arrears of rent.
The facts of the case are that the plaintiffs filed a suit for eviction against the defendant on or about 1-5-1975 on grounds of default in payment of rent, bonafide and personal necessity and arrears of rent in respect of suit property described in the plaint. It was alleged that the suit land first belonged to one Sarjoo Behari Lal and was rented out to one Naseer Khan at the rate of Rs.1/-per month. Naseer Khan had constructed a kham room on the suit property. The defendants were stated to have purchased the debris (malba) of the kham room from Naseer Khan and simultaneously rented the suit property from Sarjoo Behari Lal by way of rent note dated 16-7-1957 (Ex.1). The plaintiffs further averred that on or about 2-9-1974 they had purchased the disputed land as described in para No.1 of the plaint from Sarjoo Behari Lal by a registered sale deed and issued notice of attornment to the defendants on 5-11-1974. Copies of the postal receipt was marked as Ex.3 and notice as Ex.4. It was submitted that the suit property was bonafidely and reasonably required by the plaintiffs for the purpose of their business. It was submitted that the defendants had also not paid rent of the suit property since the attornment notice dated 5-11-1974, and therefore were also liable to be evicted on the aforesaid ground. Arrears of rent were also claimed for the period from 2-9-1974 to 25-3-1975.
On service of notice, the defendants filed their written statement of denial. The allegations in the plaint was denied and the assertion of the rent note dated 16-7-1957 having been executed by the defendants negated. It was stated that the defendants were residing in the suit property since the time of their forefathers and that the alleged erstwhile owner of the suit property Sarjoo Behari Lal as claimed in the suit had no right or interest in the suit property and consequently no right to sell it to the plaintiffs by way of registered sale deed or otherwise. Title by prescription with the defendants open continuous and unchallenged possession of the suit property partly since 1929-30 over the portion marked in red on the map annexed to the written statement and partly since June 30, 1957 of the portion marked in yellow on the map aforesaid was claimed. However, even while denying the plaintiffs ownership or their rights over the suit property as landlord, by way of abandoned caution, it was also denied that the plaintiffs had any bonafide and reasonable necessity for the suit property in issue and further that in the event the defendants were to be evicted they would suffer comparative hardship vis--vis plaintiffs.
Based on the pleadings of the parties, the trial court framed seven issues:
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Vide judgment and decree dated 1-2-1984, the trial court dismissed the plaintiffs suit. It was held that the ownership of the suit property with Sarjoo Behari Lal was not established from the evidence on record. Consequently the registered sale-deed dated 2-9-1974 purportedly executed by Sarjoo Behari Lal in favour of the plaintiffs was of little avail and no title conveyed thereunder. The trial court also held that there was no evidence on record of the court with regard to the tenancy of the defendants either previously with Sarjoo Behari Lal or subsequently with the plaintiffs' as landlords. It was further held that the defendants had established from the evidence on record to be in open, continuous and unchallenged possession of the suit property for more than 12 years with consequential rights of adverse possession.
Aggrieved of the judgment and decree dated 1-12-1984, the plaintiffs preferred an appeal under Section 96 CPC before the District Judge, Jaipur City, Jaipur. The appeal was transferred to, then heard and decided by the Additional District Judge No.5, Jaipur City, Jaipur, who vide judgment and decree dated 10-8-1993 set aside the judgment and decree of the trial court and instead decreed the suit of the plaintiffs.
Hence this second appeal under Section 100 CPC. On 17-12 1993, this court admitted the appeal and framed three substantial questions of law. Broadly stated they are as under:
1.
Whether the document Ex.1 rent note dated 16-7-57 can be said to be proved when the defendants had denied its execution and the plaintiffs had not examined the scribe or the witness or examined any handwriting expert to bring on record the evidence to the effect that it has been executed by the defendants?
2. Whether the relationship of tenant and landlord can be said to have come in to existence when there was no evidence of payment of rent by the defendants to the plaintiffs or their predecessor in interest Sarjoo Behari Lal?
3. Whether issue No.2 could be decided against the defendants when the finding of the learned trial court that Shri Sarjoo Bihar Lal had no right to sell the property had not been reversed by the first appellate court?
Mr. Ajeet Bhandari appearing for the defendants submitted that the lower appellate court has interfered without any reason and thus perversely with the well considered findings of facts recorded by the trial court in respect of issues struck by the trial court inter alia on the lack of proof of landlord-tenant relationship between the plaintiffs and the defendants and even with regard to the total absence of proof at the instance of the plaintiffs as to their ownership of the suit property. Relying upon the judgment of Honble Supreme Court in the case of Babu Rao Bagaji Vs. [AIR 1974 SC 495] it has been submitted that before upsetting the findings of the trial court the appellate court has to conclude that they were clearly unsound, perverse and wholly unsatisfactory by reasons of inconsistencies and inaccuracies. This was not done. Placing further reliance on the judgment of the Honble Supreme Court in the case of Narbada Prasad Vs. Chhagan Lal [AIR 1969 SC 395] counsel submitted that the practice of the appellate courts uniformly is to give the greatest assurance to the assessment of evidence by the trial court and it is the burden on the appellant to show how the judgment under appeal was wrong. Without establishing that the judgment under appeal was erroneous, unsound or misdirected in law the appellant cannot ask for a routine reassessment of evidence. Counsel has also placed reliance on the judgment of the Hon'ble Apex Court in the case of Santosh Hajare Vs. Purshottam Tiwari [(2001)3 SCC 179], wherein the Honble Apex Court has held that the findings by the trial court must weigh with the appellate court and before overturning the said findings the appellate court must categorically point out the errors in assessment of evidence by the court below and state its reasons for coming to a contra conclusion on assessment of evidence.
It has been submitted by the defendants' counsel that in the context of the scope and power of the appellate courts to interfere with the findings of the trial court, the findings of the first appellate court on issue No.1 are wholly arbitrary and without regard to the evidence on record. It has been submitted that issue No.1 was as to whether the defendants had executed the rent note dated 16-7-1957 (Ex.1) evidencing their tenancy of suit property with Sarjoo Behari Lal as the landlord? The burden to prove the tenancy of the defendants was on the plaintiffs. But neither the scribe of purported rent note dated 16-7-1957 was examined before the trial court, nor the witness thereto made to depose. It was submitted that on the contrary Sarjoo Behari Lal in the witness-box as Pw.2 admitted to the factum that the rent note dated 16-7-1957 was not signed by defendant Ghanshyam, and that he did not remember whether the defendant Devi Singh had signed the rent note in his presence. Further submitted counsel, the rent note dated 16-7-1957 was signed not by Devi Sahay or Ghanshyam to whom the property was purportedly let out but by Devi Singh. No handwriting expert was examined to establish that the signatures on the rent note even when Devi Singh denied that they were his. Counsel submitted that the learned trial court had thus on a complete absence of evidence with regard to execution of the purported rent note dated 16-7-1957 (Ex.1) by the defendants or either of them and then on comparison of the signatures of defendant Devi Singh on the rent note dated 16-7-1957 (Ex.1) with his signatures on the written statement rightly come to the conclusion that Devi Singh had not signed the rent note dated 16-7-1957. It was the submitted by counsel that the first appellate court had not met the reasoning of the trial court and erred yet in arbitrarily taking a contra perverse view that the rent note dated 16-7-1957 was executed by Devi Singh rendering the defendants tenant of erstwhile owner/ landlord Sarjoo Behari Lal and thereafter of his assigns and successor in interest the plaintiffs following the registered sale deed dated 2-9-1974 the attornment notice dated 5-11-1974. Counsel has further emphatically submitted that aside of the perversity of the first appellate court's findings on issue No.1, the first appellate court also misdirected itself in wrongly placing the burden of proof on the defendants who had denied the execution of the rent note dated 16-7-1957. It was submitted that it is the primary principle of the law of evidence that one who asserts is under a duty to prove and that lack of negative evidence cannot prove the assertion of the plaintiffs. It was submitted that the burden of proving the rent note dated 16-7-1957 was thus on the plaintiffs and in the absence of any legal evidence on that count the first appellate court ought to have concurred with the trial court's finding that the rent note dated 16-7-1957 was not proved as required in law. Consequently landlord tenant relationship between the plaintiffs and the defendants was not established. The trial court also noted, counsel submitted, that Pw.2 Sarjoo Behari Lal in spite of his deposition before the trial court that he had issued receipts of rent to the defendants, failed to produce any proof with regard thereto before the trial court. Further the plaintiffs had also admitted to not having received any rent from the defendants subsequent to registered sale deed dated 2-9-1974 executed by Sarjoo Behari Lal in their favour. It was submitted that in spite of the complete lack of evidence on record with regard to the alleged tenancy the learned first appellate court illegally overturned the finding of the trial court and held the defendants as tenants of the plaintiffs.
Counsel has further submitted that the first appellate court also came to a perverse conclusion in deciding issue No.2 in favour of the plaintiffs and against the defendants. He submitted that the issue No.2 pertained to the question as to whether Sarjoo Behari Lal had any legal ownership of the suit property to validly and effectively transfer the same by way of registered sale deed dated 2-9-1974 to the plaintiffs. Counsel has submitted that on this issue the first appellate court fell into gross error in considering the execution of the registered sale deed dated 2-9-1974 in favour of the plaintiffs by the purported erstwhile owner Sarjoo Behari Lal as conclusive of the matter. It was submitted that the trial court had from the evidence on record held that in spite of a challenge to the ownership and right of Sarjoo Behari Lal to execute the sale deed in favour of the plaintiffs, no attempt had been made by the plaintiffs or by Sarjoo Behari Lal himself to prove ownership of the suit property. It was submitted that during his cross examination before the trial court Sarjoo Behari Lal had stated that he was an allottee of the suit property by the State Government and had the letter of allotment with him. Yet he had not produced any document of title which ought to have been the best evidence of his title. Non production of the best evidence entailed an adverse inference as to Sarjoo Beahri's title of the suit land. Consequently the sale deed dated 2-9-1974 executed by Sarjoo Behari Lal in favour of the plaintiffs was no proof of the plaintiffs' ownership as none can transfer a title better then his. Counsel submitted that the lower appellate court glossed over this crucial aspect of the matter which had rightly been noticed by the trial court. It was submitted that registration of a document by the vendor in favour a vendee does not entail by itself incidents of ownership against a third party and when the ownership is challenged by such a party it is upon both for the vendor and the vendee to establish that the vendor was legally entitled to the property in issue and was capable of transferring it under the Transfer of Property Act by way of a conveyance executed, duly stamped and registered.
Counsel for the defendants further submitted that the learned trial court having decided issues No.1&2 against the plaintiffs, had then concluded that issues No.3,4,5 and 6 were superfluous and needed no adjudication, as they related to grounds for eviction of a tenant under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Counsel also submitted that the learned trial court had also from the evidence on record, more particularly the evidence of defence witnesses, and the evidence of plaintiffs themselves rightly held that construction over the suit property were made by the defendants, and that the defendants had been in open, continuous and unchallenged possession of the suit property for over 12 years, thereby acquiring the title by prescription. For this conclusion the learned trial court noted that the plaintiffs had in their evidence admitted the constructions having been made by the defendants even after their purported purchase on 2-9-1974 and yet the plaintiffs had not taken any steps such as issue of notice to desist, filing report with the police or filing an appropriate case against the defendants in spite of their hostile acts qua the property of which plaintiffs claimed ownership. Counsel for the defendants finally submitted that the learned first appellate court however upset and set aside without any legal foundation the well considered judgment by the trial court also on the issue of adverse possession of the defendants over the suit property. It was prayed that in circumstances all the questions of law framed by this court on 17-12-1993 be decided in favour of the defendants and against the plaintiffs, and the judgment passed by the first appellate court be set aside and that of the trial court be restored.
Per contra, Mr. M.M. Ranjan, learned Senior Advocate with Mr. Amit Dadhich appearing for the plaintiffs has however emphatically supported the judgment and decree dated 10-8-1993 passed by the first appellate court.
It was submitted by Senior Counsel for the plaintiffs that execution of the rent note dated 16-7-1957 was a pure question of fact from which no substantial question of law arose to warrant interference in a second appeal under Section 100 CPC. Relying on Bhinka Vs. Charan Singh (AIR 1959 SC 960) and Shri Raja Durga Singh of Solon Vs. Tholu (AIR 1963 SC 361), it has been submitted that similarly finding of landlord tenant relationship is a finding of fact. Such a findings also brook no interference in a second appeal under Section 100 CPC. On merits, Sr. Counsel has submitted that Sarjoo Bihari Lal had stated that the signatures on the rent note dated 16-7-1957 were that of Devi Singh and had also proved Naseer Khan's signature as witness thereon. Thus the rent note dated 16-7-1957 (Ex.1) and consequent tenancy of the defendants stood proved. Invoking the statement of Devi Singh (Dw-2) that he had purchased the debris of the kham room from Naseer Khan, it has been submitted that the rent note dated 16-7-1957 also refers to the purchase of the kham room debris by Devi Singh from Naseer Khan rendering by circumstantial evidence the authenticity of the rent note dated 16-7-1957 and proving landlord-tenant relationship between Sarjoo Bihari Lal and the defendants which subsequent to the registered sale-deed dated 2-7-1974 and consequent attornment under plaintiff's notice of 5-11-1974 operated between the plaintiffs and the defendants. Sr. Counsel then also invoked the presumption under Section 90 of the Evidence Act with regard to the rent note dated 16-7-1957 and submitted that the said presumption can be raised even in a second appeal when evidence to prove the document in issue before the trial court was found wanting. For this purpose reliance has been placed on a judgment of this Court in the case of Hazari Lal & Ors. Vs. Shyam Lal [2007 (1) RLW 434]. The further submission of the counsel for the plaintiff was that there was a presumption in law of title to the suit property vesting with the plaintiffs on the basis of the registered sale-deed dated 2-9-1974 executed in their favour by Sarjoo Behari Lal the erstwhile owner. Referring to Bhogadi Kannababu Vs. Vuggina Pydamma [(2006) 5 SCC 532], S. Thangappan Vs. P. Padmavathy [2000 (1) RCJ 111] para 7 it has been submitted that the sale-deed dated 2-9-1974 not being put to challenge fortified the rights of the plaintiffs thereunder. It was submitted that the finding of the trial court on the issue of ownership/ title or lack of it in a suit for eviction was absolutely irrelevant and even if touched upon incidentally would have no finality. According to Sr. Counsel the first appellate court therefore rightly held that no trial on the question of title was warranted in a suit for eviction and as a sequitor the lower appellate court correctly set aside the findings on issue No.2 by the trial court as they were palpably without jurisdiction and beyond the scope of the eviction suit. It was also submitted that in the amended written statement the defendants had admitted to the tenancy in respect of a room on the disputed land and the trial court had erred in overlooking the defendants' admission. It was submitted that the defendants having deposited rent from September, 1979 to 30.11.1982 albeit under the order of the trial court under Section 13(3) of the Act of 1950 (provisional rent), estoppel would operate against the defendants in denying tenant-landlord relationship with the plaintiffs.
Heard learned counsel for the parties and perused the contradictory judgments of the courts below and material available on record.
The Honble Supreme court in the case of Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar [(2013)3 SCC 801] has held that the initial burden to prove a document relied upon is always upon its propounder. It was held that even where a document relied upon by the plaintiff is alleged by the defendants to be forged/ fabricated, the burden would be on the plaintiffs to prove that the defendants had executed the agreement and not on the defendants to prove the negative. The Honble Supreme Court held that only when a propounder of a document had discharged the initial burden qua a document having been validly executed, would the onus be shifted on the defendants who claimed it to be was forged/ fabricated. Further in the case of Narbada Devi Gupta Vs. Virendra Kumar Jaiswal, [(2003)8 SCC 745] the Honble Supreme Court has reiterated the well settled principle that the mere production and marking of a document as exhibit before the court cannot be held to be a due proof of its contents and the execution of a document relied upon by a party has to be proved by it through admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. In the case of S. Gopal Reddy Vs. State of A.P. [(1996)4 SCC 596] the Hon'ble Supreme Court has referred to the modes of proof of execution of a document. The Hon'ble Supreme Court has held that even though Section 67 of the Evidence Act, 1872 does not prescribe any particular mode of proof, yet Section 47 of the Evidence Act provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly opinion of a handwriting expert is also a relevant fact for identifying any handwriting. Aside aforesaid, the ordinary method for proving a document is of calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. The other method of proving the document is by comparison of handwriting as envisaged under Section 73 of the Evidence Act, besides of the admission of person against whom the document is intended to be used. The aforesaid modes have been held by the Hon'ble Supreme Court as the legitimate methods of proving a document. In State (Delhi Admn.) Vs. Pali Ram [(1979)2 SCC 158] the Hon'ble Supreme Court has held as under:
Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person:
(1) By an admission of the person who wrote it.
(2) By the evidence of some witness who saw it written. These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are:
(i) By the evidence of a handwriting expert (Section 45)
(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question (Section 47)
(iii) opinion formed by the court on comparison made by itself (Section 73) All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exempler formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the court with the sample writing or exempler obtained by it from the person concerned.
In the context of aforesaid modes of proving a document detailed by the Hon'ble Supreme Court, a bare look at the evidence on record would establish that the plaintiffs who had premised their suit for eviction and arrears of rent against the defendants on the purported rent note dated 16-7-1957 had failed to prove the said document. It is on record that neither the scribe nor the witness to the said document were examined before the trial court. Even Pw.2 Sarjoo Behari Lal has stated that he did not remember that the defendant Devi Singh signed before him, even though he thereafter indeed claimed vacuously that the signatures on the rent note were of Devi Singh. It was nobody's case that Sarjoo Behari Lal was acquainted with signature of Devi Singh as his constant associate. Further signatures of the defendant Ghanshyam also stated to be a tenant under the rent note dated 16-7-1957 was not admittedly appended on the said rent note (Exhibit-1). There was thus no legal evidence before the trial court on the execution by Dw-2 Devi Singh of the rent note dated 16-7-1957. No expert evidence was led on this count. Not even the purported witness to the document in issue one Naseer Khan examined. Further the trial court on a comparison of the alleged signatures of Devi Singh on the rent note dated 16-7-1957 (Ex.1) with his signatures on the written statement concluded that the two were not similar to give any comfort or assurance to the trial court to hold that the rent note dated 16-7-1957 (Ex.1) was executed by Devi Singh in favour of the plaintiffs. The rent note purported to be in favour of Devi Sahai and Ghanshyam but signed by Devi Singh supplied another source of disquiet on its authenticity. It is also important to note that from the evidence of Pw.1 Rafiq Ahmed it was admitted that ever since the registered sale deed executed by Sarjoo Behari Lal in favour of the plaintiffs rent had not been paid by the defendants. Nor any rent receipt of payment of rent to Sarjoo Behari Lal was filed in spite of Sarjoo Bihari's claim that he issued rent receipts to defendants. The Hon'ble Supreme Court in the case of Sadhu Ram Vs. Financial Commissioner [(2005) 10 SCC 226] has held that where there is no proof of payment of rent by a person to another, no landlord tenant relationship can be found. The aforesaid judgment applies fully to the facts of the present case and the lack of any evidence whatsoever with regard to payment of rent entails the inevitable conclusion that issue No.1 had to be decided as was rightly done by the trial court in favour of the defendants. The trial court therefore rightly concluded that the rent note dated 16-7-1957 (Ex.1) was not proved by the plaintiffs to make out a case of the defendant's tenancy. Against the well considered findings of the trial court with regard to complete lack of evidence of the rent note dated 16-7-1957 (Ex.1) having been executed by the defendants, the learned first appellate court wrongly placed the burden of proof on defendants to prove that the signatures of Devi Singh on the rent note dated 16-7-1957 were forged and fabricated. The Hon'ble Supreme Court in the case of Leela Soni Vs. Rajesh Goyal [(2001) 7 SCC 494] has held that wrongful placing of burden on defendants is a misdirection in law liable to be corrected in second appeal under Section 100 CPC as a substantial question of law would then arise.
Thus the conclusions of the first appellate court that the rent note dated 16-7-1957 (Ex.1) stood proved was thus wholly perverse on fact and gravely erroneous in law. In my considered opinion, the findings of the first appellate court on issue No.1 are liable to be set aside.
In my considered opinion on issue No.2, the learned first appellate court completely misdirected itself. Issue No.2 was as to whether the erstwhile owner of the suit property Sarjoo Behari Lal had the authority in law to transfer the suit property by way of registered sale deed or otherwise to the plaintiffs. In the evidence before the trial court no deed or allotment in favour of Sarjoo Behari Lal, as claimed by him, was produced in spite of his claim to have it with him. The trial court in the circumstance rightly drew an adverse inference against Pw.2 Sarjoo Behari Lal holding that he was not the lawful owner of the property and the registered sale deed by him in favour of the plaintiffs transferred no legal and valid title to the plaintiffs to the detriment of the defendants.
In my considered opinion the arguments of the learned counsel for the plaintiffs with regard to scope of this court under Section 100 CPC has only to be noticed to be rejected. There is no absolute bar for interference with concurrent findings of fact by the courts below or by the lower appellate court as a final court of fact reversing the judgment and decree of the trial court. It is well settled by a series of judgments of the Hon'ble Supreme Court as also of this court, to numerous to cite that perversity in the findings of facts entails a substantial question of law. In my considered opinion, in the facts of the present case the conclusion of the first appellate court both on the issue of a tenancy between the plaintiffs and defendants and its conclusion that mere execution of registered sale deed dated 2-9-1974 entailed a presumption as against the third party as to the title of the vendee are perverse. The reasons for this conclusion need not be reiterated as they have been set out in the earlier part of the judgment. I also find no force in the submission of plaintiffs' counsel in regard to Section 90 of the Evidence Act enuring to the benefits of the plaintiffs qua Ex.1 i.e. the purported rent note dated 16-7-1957. The Hon'ble Supreme court in the case of State of A.P. Vs. Starbone Mill & Fertiliser Co. [(2013)9 SCC 319] has held that the 30 year period referred to in Section 90 of the Evidence Act must be reckoned backward from the date of the offering of a document. It is not in dispute in the present case that the suit was filed on 1-5-1975 claiming tenancy of the defendants on the basis of the purported rent note dated 16-7-1957 (Exhibit-1). It is thus apparent that at the time of the document being offered as evidence for the plaintiffs it was not 30 years old, and thus the arguments of the counsel for the plaintiffs based on Section 90 of the Evidence Act deserves to be rejected. There is however indeed a presumption in respect of a registered document that it was executed in accordance with law Bellachi Vs. Pakeeran [(2009) 12 SCC 95]. But this presumption is operative only between the vendor and the vendee and does not extend to a third party to shut out a challenge to the title of the vendor as sought to be transferred and so transferred to vendee under a registered instrument. When a challenge is made to title by a third party, the title holder has to establish actual ownership or possessory title as the case may be. In the instant case, title of the plaintiffs and their predecessors in interest was denied by the defendants who were in possession. No proof of title was proferred by the plaintiffs or their predecessor in interest. Consequently, the argument of plaintiffs' counsel that this court invoke a presumption in favour of the plaintiffs, as against defendants, on the basis of the registered sale deed dated 2-9-1974 is not sustainable and is liable to be rejected. I am of the further opinion that an issue having been framed by the trial court on pleadings of parties with regard to the right of Sarjoo Behari Lal to transfer the suit property in favour of plaintiffs and the parties having led evidence thereon or otherwise having failed to lead requisite evidence, the learned trial court was duty bound to adjudicate the said issue, albeit incidentally as the suit before it was fundamentally only for eviction and arrears of rent under a special statute i.e. Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Consequently the learned trial court therefore cannot be found to have erred in adjudicating the issue framed before it on the basis of evidence laid by the parties. In [(2000)8 SCC 123] Shamim Akhtar Vs. Iqbal Ahmed, the Hon'ble Supreme Court has held that the question of title to suit property can be gone into incidentally while deciding the one of the plaintiff seeking a decree of eviction. The first appellate court on its part has overlooked the crucial aspect of addressing the issue of the title of Sarjoo Bihari Lal, which was put to challenge by defendants and instead wrongly proceeded to perfunctorily attribute the title of the suit property vesting in the plaintiffs solely on the basis of the case of the plaintiff that the trial court should have eschewed the adjudication of the question of title, in an eviction petition. I am also completely unable to accept the submission of plaintiffs' counsel that the defendants had admitted to the tenancy of the suit property. The alleged admission as to tenancy cannot even remotely be ascribed to the defendants, more particularly on a holistic reading both of the written statement and the amended written statement wherein the tenancy as also the ownership rights/ title of the plaintiffs had been roundedly denied by the defendants. Arguments of plaintiffs' counsel with regard to defendants being estopped from denying their tenancy in view of deposit of rent for the period from September, 1979 to November 30, 1982 is a desperate argument, overlooking the fact that the said amount was deposited by the defendants under directions by the trial court on determining the provisional rent under Section 13(3) of the 1950 Act under order dated 6-11-1975. The non deposit of provisional rent would have entailed statutory consequences under Section 13 (5) of the 1950 Act resulting in the defence of defendants in a suit for eviction and arrears of rent being struck off. No estoppel can even remotely operate in the facts and circumstances obtaining.
Before concluding, I am of the opinion that the judgment of the lower appellate court on issue No.6A need not be interfered with.
The reason is that the said issue pertains to the question of defendants' perfecting their title on the suit property by way of adverse possession. The case of the defendants in their written statement to the suit laid by plaintiffs was that the suit land belonged to the State Government and that the defendants had perfected their title thereto on the basis of open, continuous and hostile possession from 1929-30 in respect of the portion of land marked with red colour in the map annexed to the written statement and from June, 1957 in the portion of the land marked in yellow colour in the map aforesaid. In my considered opinion, in the absence of the actual owner of the suit land i.e. the State Government which was not a party to the suit and further in absence of requisite detail with regard to date on which the possession became hostile to the true owner, there was no occasion whatsoever for the trial court have framed the issue as to adverse possession and adjudicate it in favour of the defendants. In a suit for eviction the defendants could not be allowed to claim adverse possession as against the third party which was not a party in the said suit. They could have in the circumstances of the case only advocated if not at the based on documents a better possessory title. Aside of aforesaid, the determination of issue No.6-A by the trial court holding that the defendants had perfected their title to the suit property by way of adverse possession is not sustainable in law. The Hon'ble Supreme Court in case of S.M. Karim Vs. Mst. Bibi Sakina [AIR 1964 SC 1254] has held that a plea of adverse possession is required to show when possession became adverse as the said date is central for showing when the limitation begin to run for a title based on adverse possession being perfected. It has been held that long possession by itself is not sufficient to automatically entitle exclusion of the true owner and title of one in possession thereof becoming perfect. In the case of P.T. Munichikanna Reddy Vs. Revamma [(2007)6 SCC 59] the Hon'ble Supreme Court has held that mere possession even for any number of years is not equal to adverse possession or title by prescription. The Hon'ble Supreme Court held as under:
31. Inquiry into the starting point of adverse possession i.e. dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession; whether open, continuous, uninterrupted or hostile possession, have not been disclosed.
Resultantly the finding of the appellate court on issue No.6A is upheld.
The upshot of the aforesaid discussion in this second appeal is that issue No.1 and 2 as framed by the trial court in the plaintiffs' suit for eviction and arrears of rent stand decided in favour of the defendants and the findings of the lower appellate court on the aforesaid two issues are set aside. It is held that neither the plaintiffs were the landlord of the defendants nor were they able to prove their title/ ownership of the suit/ tenanted proper. With issue No.1 and 2 having been decided in favour of the defendants on evidence and applicable law, issue No.3, 4, 5, and 6 pertaining to landlord's right of the tenants' eviction from the tenanted premises under the provisions of Section 13(1) of the 1950 Act become redundant.
Consequently, in view of the decision on issue No.1&2 in favour of the defendants and against the plaintiffs, the appeal is partly allowed in favour of the defendants. The plaintiffs' suit for eviction and arrears of rent is dismissed. Decree be drawn accordingly.
(Alok Sharma), J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.