Allahabad High Court
Sukh Lal And Others vs Ashok Kumar Raghuwansi on 21 November, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 60081 of 2012 Petitioner :- Sukh Lal And Others Respondent :- Ashok Kumar Raghuwansi Petitioner Counsel :- B.N.Agrawal,Sanjay Agrawal Respondent Counsel :- Kunwar Ajay Singh Hon'ble Sudhir Agarwal,J.
1. Heard Sri B.N. Agrawal, learned counsel for the petitioners and Sri Kunwar Ajay Singh, Advocate for Caveator-respondent.
2. The respondent is the landlord of House No. 119/499, Darshanpurwa, Kanpur Nagar which he purchased vide sale deed dated 04.10.1985.
3. Sri Sukh Lal (now deceased and substituted by his legal heirs, i.e., petitioner no. 1/1 etc.) was already a tenant in certain portion of aforesaid house comprising one room, verandah, courtyard and chhajja on first floor on a monthly rent of Rs. 15/-. On the ground that tenant had committed default in payment of rent, an ejectment suit was filed by respondent-landlord being SCC Suit No. 271 of 1988, in the Court of Small Causes, Kanpur Nagar. The petitioner-tenants contested suit on various grounds including that there is no relationship of landlord and tenant between plaintiff and defendants. The respondent-landlord's title which he founded on sale deed dated 04.10.1985, was also denied.
4. The Trial Court vide judgment dated 24.09.2011 recorded findings that respondent-landlord was owner of accommodation in question and, therefore, rent was payable to him, hence satisfy the definition of "landlord" under Section 3(j) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"); the petitioners-tenants had committed default in payment of rent and though the entire dues were deposited, as contemplated in Section 20(4) of Act, 1972 on the first hearing of suit but since there is a denial of title of landlord over the tenanted accommodation, the petitioner-tenants were liable for ejectment on the ground under Section 20(2)(f) of Act, 1972. Accordingly it passed a decree of ejectment and recovery of rent etc. from petitioner-tenants. This judgment of Trial Court has been confirmed in SCC Revision No. 95 of 2011 by Additional District Judge, Court No. 20, Kanpur Nagar vide judgment dated 09.08.2012.
5. Learned counsel for the petitioners advanced only one submission that a derivative title, if disputed, does not amount to denouncement of title and, therefore, the suit for ejectment ought not to have been decreed on ground under Section 20(2)(f) of Act, 1972. He placed reliance on the Apex Court's decision in Sheela and others Vs. First Prahlad Rai Prem Prakash, AIR 2002 SC 1264 and a Single Judge judgment of this Court in Chotey Lal Shukla since deceased and survived by legal representatives Vs. IXth Additional District Judge, Kanpur Nagar and another, 2007(2) ARC 453. Though with a bit reluctance, it was also argued that house number was not mentioned on the registry receipt, meaning thereby complete address was not mentioned on the registered envelop whereby notice was issued to petitioners-tenants determining their tenancy. Such registered post will not result in drawl of presumption of service, if received back with the postal endorsement of refusal and on this aspect he placed reliance on a Single Judge decision in Dharam Pal Tyagi Vs. Anil Kumar, 1986(2) ARC 121.
6. I propose to take up the second issue first. There is nothing on record to show that envelop in which notice remitted to petitioners by respondent-landlord demanding rent and determining tenancy, was kept, did not contain complete address. What actually has been argued before this Court is that in the receipt issued by postal department complete address was not mentioned, and, therefore, an inference has been drawn by petitioner-tenants that complete address was not mentioned on the envelop also. The Court finds that though the receipt which is on record on page 23 mentions only name of sender and the city for which registered item was received by postal authorities, but then on page 24, a photocopy of envelop is also there which mentions complete address of petitioners-tenants. Hence it cannot be said that there is any flaw in sending registry to tenants with regard to address. The address on the envelop was complete. It is factually incorrect to argue that incomplete address was given on the envelop. The judgment in Dharam Pal Tyagi (supra), therefore, would have no application to the facts of this case.
7. Now coming to the next issue, I find that there is no dispute about the fact that benefit of Section 20(4) of Act, 1972 cannot be claimed by a tenant who has denied title of landlord. This is what has also been reiterated by this Court in Chotey Lal Shukla (supra) a decision cited by petitioners themselves and in para 8 the Court said:
"It is correct that a tenant who denied the title of the landlord is not entitled to the benefit of Section 20(4) of U.P. Act No. 13 of 1972."
8. However, an exception has been carved out by this Court that a tenant is entitled to question "derivative title" of subsequent landlord.
9. I required learned counsel for petitioners to explain, what does he mean by the term "derivative title", to which he could render no assistance. When an appropriate assistance is not extended by learned counsel for the parties, the Court is under no obligation to make its own research work on the subject but this Court is exercising constitutional extraordinary jurisdiction under Article 226/227 of the Constitution and, therefore, keeping in view that incompetence or lack of assistance on the part of counsel in assisting the Court should not prejudice interest of parties concerned, I have proceeded to consider this aspect in wider perspective.
10. Derivative title is one of the two kinds of title as known jurisprudentially. In order to understand its meaning and scope in depth, it would be appropriate, first to know, the meaning of "title".
11. There are two ways of asserting meaning of "title". One, in terms of its general dictionary meaning, and, second, how it has been understood in 'law'.
12. In "Chambers Dictionary" on page 1541 the meaning of "title" has been given as under:
"title- an inscription or descriptive placard: a chapter-heading: a section of a law-book: the name of a book, poem, tale, picture, etc: a title-page: a book or publication, as an item in a catalogue (publishers' jargon) : a credit title (cinema) : a subtitle (cinema) : an appellation of rank or distinction : a right to possession : a ground of claim : evidence of right : a title -deed : a fixed sphere of work, source of maintenance, or a certificate thereof, required as a condition for ordination : a cardinal - priest's parish in Rome : a champion ship (sport) - v. t. to designate : to give or attach a title to." (emphasis added)
13. In "The New Lexicon Webster's Dictionary of the English Language" (1987), published by Lexicon Publications, Inc. at page 1036, "title" is defined as under:
"title 1. n. a word, phrase or sentence used to designate a book, chapter, poem etc. , thus distinguishing it from others and often indicating the nature or its contents // (a similar indication for a painting, statue etc. // a title page // a division of a law book, statute etc. // the form of words at beginning of a legal document or statute, indicating its nature // a word or phrase attached, usually as a prefix, to the name of a person in order to denote his office, social dignity or status, esp, a status of nobility // an epithet // a ground for claim, he has lost all title to our esteem // (law) the legal right to the right to the ownership or property, or the evidence of this right // (Anglican Communion) a source of income and fixed sphere of work required of a candidate for ordination // Roman Catholicism) a parish or church, esp. in or near Rome, in the charge of a cardinal // (sports) that which affords recognition as the best athlete, team etc. in a particular sport, world heavyweight title" (emphasis added)
14. In "Oxford Advanced Learner's Dictionary" Seventh Edition, published by Oxford University Press. at page 1612 the term "title" has been defined as under:
"Title: 1. the name of a book, poem, painting, piece of music, etc.: . . . 2. a particular book or magazine:. . . . 3. a word in front of a person's name to show their rank or profession, whether or not they are married, etc.: 4. . . . . a name that describes a job: . . . . . 5. the position of being the winner of a competition, especially a sports competition: . . . . . 6. the legal right to own sth, especially land or property; the document that shows you have this right." (emphasis added)
15. The consensus in general dictionary meaning of "title" with reference to an immoveable property is something which conveys a legal right to ownership of property or the evidence of this right.
16. In Law Dictionaries the term "title" has been defined in the context of statute(s) concerned etc.
17. In P. Ramanatha Aiyar's "The Law Lexicon", The Encyclopaedic Law Dictionary with Legal Mxims, Latin Terms, Words and Phrases, Second Edition Reprint 2007, published by Wadhwa and Company Law Publishers, the meaning of "title" is given on pages 1895 and 1896. It says that as a general head the word "title" comprising particulars as in a claim of right. It means whereby an owner possesses his property justly. The word "title" includes a right but is a more general word. Every right is a title though every title is not such a right for which an action lies. Blackstone defines the word "title" as "the means whereby the owner of lands had the just possession of his property."
18. In The Law Lexicon (supra) at page 1896 the expression "title" in general has been defined as under:
"The expression "title" in the general proposition that, when equities are equal, he that has the legal title will be preferred, includes in its broadest sense all rights capable of being enjoyed and secured under the law. One holding a legal title to lands is certainly included, but rights amounting to less than the full legal title are equally included with it; and it is not necessary that one should acquire the full legal title to lands to entitle him to the protection of the defence of purchase for valuable consideration without notice of a prior lien."
19. In "Black's Law Dictionary" Fifth Edition 1979 published by West Publishing Co., the word "title" has been defined on page 1331 and says:
"Title. A mark, style, or designation; a distinctive appellation; the name by which anything is known. Thus in the law of persons, a title is an appellation of dignity or distinction, a name denoting the social rank of the person bearing it; as "duke" or "count". So, in legislation, the title of a statute is the heading or preliminary part, furnishing the name by which the act is individually known. It is usually prefixed to the statute in the form of a brief summary of its contents; as "An act for the prevention of gaming." Again, the title of a patent is the short description of the invention, which is copied in the letters patent from the inventor's petition; e.g. "a new and improved method of drying and preparing malt."
The title of a book, or any literary composition, is its name; that is, the heading or caption prefixed to it, and disclosing the distinctive appellation by which it is to be known. This usually comprises a brief description of its subject-matter and the name of its author."
20. Thus, to be more precise, every right in a wider sense, when includes privileges, powers and immunities involves title or source from which it derives.
21. In Rafiq-Un-Nissa Bibi vs Abdul Shakur Khan And Ors. AIR 1929 All 400 the term "title" in the context of Section 11 C.P.C. was explained that it refers to the capacity or interest of a party, that is to say where he sues or is sued for himself, in his own interest, or for himself as representing the interest of another or as representing the interest of others along with himself. It has nothing to do with particular cause of action on which he sues or is sued.
22. In the context of U.P. Temporary Control of Rent and Eviction Act, 1947 (U.P. Act no. 3 of 1947), in Hashmat Hussain Vs. Saghir Ahmad, AIR 1958 All 847, this Court said, that the word "title" in Clause (f) of Section 3 of Act, 1947 must refer to the title of landlord on the basis of which he can claim to eject the tenant and cannot be taken to refer only to proprietary rights in the accommodation which may be entirely immaterial so far as the right of ejectment is concerned. A person may be landlord even if the proprietary title to the accommodation does not vest in him. In a legal acceptation "title" has respect to that which is the subject of ownership, and is that which is the foundation of ownership and with a change of title the right of property and ownership passes.
23. "Salmond on Jurisprudence" 12th Edition, on page 331, has said that title is the de facto antecedent, of which the right is the de jure consequence.
24. Jurisprudentially titles have been recognised in two categories. One, "the original" and another is "the derivative".
25. The "original title" is that which is created a de novo while the "derivative title" is that which transfer an already existing right to a new owner. Catching of fish is an original title of the right of ownership, whereas purchase of fish results in the purchase a derivative title. The right acquired by fisherman is newly created; it did not formerly exist in any one. But that which is acquired by purchaser is in legal theory identical with that which is lost by the vendor. It is an old right transferred, not a new one created.
26. Be that as it may, the essence of "a title" is not that it determines the creation of rights de novo, but that it determines the acquisition of rights new or old. When a property is transferred from 'A' to 'B' it results in the transfer of rights and such transfer is an event which has a double aspect. It results in acquisition of rights by transferee and loss of it by the transferor. This event of facts is called a "vestitive fact", if considered with reference to transferee possessing a derivative title while from the point of view of transferor, that fact is an "alienative fact". Purchase is "derivative title" caused by a "vestitive fact" but sale is an "alienative fact" though they are merely two different sides of the same event.
27. The term "title" in the context of immoveable property encompasses capacity of individual to exercise absolute right over property to the exclusion of others. A person who has title over a property, even if, has no physical possession thereof, but, his possession in law is always deemed to continue in various ways. Sometimes the term "ownership" and "possession" have also been used in the context of conferring an idea, impression or colour to the word "title". This can be find out from the meaning of terms "possession" and "ownership".
28. "Ihering" defines possession, "whenever a person looks like an owner in relation to a thing he has possession, unless possession is denied to him by rules of law based on convenience". Apparently this definition does not give any explicit idea on the subject. It only states that the concept of possession is an ever changing concept having different meaning for different purposes and different frames of law.
29. "Pollock" says, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others". The stress laid by Pollock on possession is not on animus but on de facto control.
30. "Savigny" defines possession, "intention coupled with physical power to exclude others from the use of material object." Apparently this definition involves both the elements namely, corpus possession is and animus domini.
31. The German Jurist ''Savigny' laid down that all property is founded on adverse possession ripened by prescription. The concept of ownership accordingly as observed by him involve three elements-Possession, Adverseness of Possession, (that is a holding not permissive or subordinate, but exclusive against the world), and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued.
32. "Holmes" opined that possession is a conception which is only less important than contract.
33. According to Salmond on "Jurisprudence", 12th Edition (1966) (First Edition published in 1902) by P.J. Fitzgerald, Indian Economy Reprint 2006 published by Universal Law Publishing Co. Pvt. Ltd. Delhi (hereinafter referred to as "Salmond's Jurisprudence"). On page 51, it says that the concept of "possession" is as difficult to define as it is essential to protect. It is an abstract notion and is not purely a legal concept. It is both a legal and a non-legal or a pre-legal concept. He tried to explain the concept of possession with reference to different factual and legal concepts.
34. The first one is "possession in fact". It is a relationship between a person and a thing. The things one possesses in his hand or which one has in his control like clothes he is wearing, objects he is keeping in his pocket etc. For such things it can be said that he is in possession of the things in fact. To possess one would have to have a thing under his physical control. If one captures a wild animal, he get possession of it but if the animal escapes from his control, he looses possession. It implies that things not amenable in any manner to human control cannot form the subject matter of possession like one cannot possess sun, moon or the stars etc. Extending the above concept, "Salmond" says that one can have a thing in his control without actually holding or using it at every given moment of time like possession of a coat even if one has taken it off and put down or kept in the cupboard. Even if one fall asleep, the possession of the coat would remain with him. If one is in such a position, has to be able in the normal course of events to resume actual control when one desires, the possession in fact of the thing is there. Another factor relevant to the assessment of control is the power of excluding other people. The amount of power that is necessary varies according to the nature of the object.
35. The possession consisted of a "corpus possessionis" and "animus possidendi". The former comprised both, the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.
36. Then comes "possession in law". A man, in law, would possess only those things which in ordinary language he would be said to possess. But then the possessor can be given certain legal rights such as a right to continue in possession free from interference by others. This primary right in rem can be supported by various sanctioning rights in personam against those who violates the possessor's primary right; can be given a right for compensation for interference and a dispossession and the right to have his possession restored from the encroacher. This possession tantamounts to title.
37. Another facet of possession is "immediate" or "mediate possession". The possession held by one through another is termed "mediate" while that acquired or retained directly or personally can be said to be "immediate or direct". There is a maxim of civil law that two persons could not be in possession of the same thing at the same time. (Plures eandem rem in solidum possidere non possunt). As a general proposition exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. There are, however, certain exceptions, namely, in the case of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. Two or more persons may possess the same thing in common just as they may own it in common.
38. Then comes "incorporeal possession". It is commonly called the possession of a right and is distinct from the "corporeal possession" which is a possession of the thing.
39. In "The Elementary Principles of Jurisprudence" by G.W. Keeton, II Edition (1949) published by Sir Isaac Pitman and Sons Ltd. London (First published in 1930), "possession" has been dealt in Chapter XV. It says:
"'Possession,' says an old proverb, "is nine points of law." Put in another way, this implies that he who has conscious control of an object need only surrender his control to one who can establish a superior claim in law."
40. The essentials of possession in the first instance includes a fact to be established like any other fact. Whether it exists in a particular case or not will depend on the degree of control exercised by the person designated as possessor. If his control is such that he effectively excludes interference by others then he has possession. Thus the possession in order to show its existences must show "corpus possessionis" and an "animus possidendi".
41. Corpus possessionis means that there exists such physical contact of the thing by the possessor as to give rise to the reasonable assumption that other persons will not interfere with it. Existence of corpus broadly depend on (1) upon the nature of the thing itself, and the probability that others will refrain from interfering with the enjoyment of it; (2) possession of real property, i.e., when a man sets foot over the threshold of a house, or crosses the boundary line of his estate, provided that there exist no factors negativing his control, for example the continuance in occupation of one who denies his right; and (3) acquisition of physical control over the objects it encloses. Corpus, therefore, depends more upon the general expectations that others will not interfere with an individual control over a thing, then upon the physical capacity of an individual to exclude others.
42. The animus possidendi is the conscious intention of an individual to exclude others from the control of an object.
43. Possession confers on the possessor all the rights of the owner except as against the owner and prior possessors. "Possession in law" has the advantage of being a root of title.
44. There is also a concept of "constructive possession" which is depicted by a symbolic act. It has been narrated with an illustration that delivery of keys of a building may give right to constructive possession all the contents to the transferee of the key.
45. In "Oxford English-English-Hindi Dictionary" published by Oxford University Press, first published in 2008, 11th Impression January 2010, at page 920:
"possession-1. the state of having or owning something. 2. Something that you have or own"
(emphasis added)
46. In "The New Lexicon Webster's Dictionary of the English Language" (1987), published by Lexicon Publications, Inc. at page 784:
"pos-ses-sion-a possessing or being possessed II that which is possessed II (pl.) property II a territory under the political and economic control of another country II (law) actual enjoyment of property not founded on any title of ownership to take possession of to begin to occupy as owner II to affect so as to dominate."
(emphasis added)
47. In "Chambers Dictionary" (Deluxe Edition), first published in India in 1993, reprint 1996 by Allied Publishers Limited, New Delhi at page 1333 defines 'possess' and 'possession' as under :
"possess poz-es', vt to inhabit, occupy (obs.); to have or hold as owner, or as if owner; to have as a quality; to seize; to obtain; to attain (Spenser); to maintain; to control; to be master of; to occupy and dominate the mind of; to put in possession (with of, formerly with in); to inform, acquaint; to imbue; to impress with the notion of feeling; to prepossess (obs)."
"possession the act, state or fact of possession or being possessed, a thing possessed; a subject foreign territory"
48. In "Corpus Juris Secundum", A Complete Restatement of the Entire American Law as developed by All Reported Cases (1951), Vol. LXXII, published by Brooklyn, N.Y., The American Law Book Co., at pages 233-235:
"Possession expresses the closest relation of fact which can exist between a corporeal thing and the person who possesses it, implying an actual physical contact, as by sitting or standing upon a thing; denoting custody coupled with a right or interest of proprietorship; and "possession" is inclusive of "custody." although "custody" is not tantamount to "possession." In its full significance, "possession" connotes domination or supremacy of authority. It implies a right and a fact; the right to enjoy annexed to the right of property, and the fact of the real detention of thing which would be in the hands of a master or of another for him. It also implies a right to deal with property at pleasure and to exclude other persons from meddling with it. Possession involves power of control and intent to control, and all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term "possession."
The word "possession" is also defined as meaning the thing possessed; that which anyone occupies, owns, or controls; and in this sense, as applied to the thing possessed, the word is frequently employed in the plural, denoting property in the aggregate; wealth; and it may include real estate where such is the intention, although this is not the technical signification.
It is also defined as meaning dominion; as, foreign possessions; and, while in this sense the term is not a word of art descriptive of a recognised geographical or governmental entity, it is employed in a number of federal statues to describe the area to which various congressional statutes apply.
"Possession" in the sense of ownership, and as a degree of title, and as indicating the holding or retaining of property in one's power or control, is treated in Property."
49. In "Black's Law Dictionary" Seventh Edition (1999), published by West Group, St. Paul, Minn., 1999, at page 1183:
"possession. 1. The fact of having or holding property in one's power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. (usu. pl.) Something that a person owns or controls; PROPERTY (2). 4. A territorial dominion of a state or nation."
50. In Black's Law Dictionary (supra) the following categories of possession have also been referred and explained:
"Actual possession, adverse possession, bona fide possession, civil possession, constructive possession, corporeal possession, derivative possession, direct possession, effective possession, exclusive possession, hostile possession, immediate possession, incorporeal possession, indirect possession, insular possession, mediate possession, naked possession, natural possession, notorious possession, peaceable possession, pedal possession, possession in fact, possession in law, possession of right, precarious possession, quasi possession and scrambling possession."
51. In "Words and Phrases" Permanent Edition, Vol. 33 (1971), published by St. Paul, Minn. West Publishing Co., at pages 91-92:
"'Possession' as used in statute is not synonymous with physical bodily presence of adverse claimant; continuous bodily presence is not required, but rather question is one of fact which must be determined from circumstances of each case.
"Possession" is a common term used in every day conversation that has not acquired any artful meaning.
"Possession", in any sense of term, must imply, first, some actual power over the object possessed, and, secondly, some amount of will to avail oneself of that power.
"Possession" is one of the most vague of all vague terms, and shifts its meaning according to the subject-matter to which it is applied,--varying very much in its sense, as it is introduced either into civil or into criminal proceedings.
Possession is that condition of fact under which one can exercise his power over a corporeal thing to the exclusion of all others.
To constitute possession, there must be such appropriation of the land to the individual as will apprise the community in its vicinity that the land is in his exclusive use and enjoyment, and notice of possession to be sufficient must be of the open and visible character, which from its nature will apprise the world that the land is occupied, and who the occupant is."
52. In "Jowitt's Dictionary of English Law" Vol. 2 Second Edition-1977, Second Impression-1990, published by London Sweet & Maxwell Limited, at pages 1387-1389:
"Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed; hence, if a piece of land is deserted and left without fences or other signs of occupation, it is not in the possession of anyone, and the possession is said to be vacant. The question whether possession of land is vacant is of importance in actions for recovering possession.
Possession is actual, where a person enters into lands or tenements conveyed to him; apparent, which is a species of presumptive title, as where land descended to the heir of an abator, intruder, or disseisor, who died seised; in law, when lands had descended to a man and he had not actually entered into them, or naked, that is, mere possession, without colour of right.
The primary meaning is physical control. A secondary meaning is physical control by an agent or servant, or by relation back, e.g., by the owner having entered without remaining in physical possession (Ocean Accident etc., Corporation v. Ilford Gas Co. [1905] 2 K.B. 493).
Possession may also extend over a thing in itself uncontrolled within an inclosure which is controlled, such as horses, sheep or cattle within a fenced field. See Animals Ferae Naturae.
Possession may connote different kinds of control according to the nature of the thing or right over which it is being exercised. A man may possess an estate of land; if he leases it he will be in possession of the rents and profits and the reversion, but not of the land which is in the lessee who may being an action of trespass against the lessor. In regard to real property a mere right without possession is not sufficient to found an action of trespass; for instance, until 1926 a lessee before entry having a mere interesse termini could not bring an action for trespass on the land demised (Wallis v. Hands [1893] 2 Ch. 75). See Possessio Fratris.
The adage, possession is nine parts of the law, means that the person in possession can only be ousted by one whose title is better than his; every claimant must succeed by the strength of his own title and not by the weakness of his antagonist's.
Possession does not necessarily imply use or enjoyment.
Possession gives rise to peculiar rights and consequences. The principal is that a possessor has a presumptive title, that is to say, is presumed to be absolute owner until the contrary is shown, and is protected by law in his possession against all who cannot show a better title to the possession than he has.
With reference to its origin, possession is either with or without right.
"Rightful possession" is where a person has the right to the possession of (that is, the right to possess) property, and is in the possession of it with the intention of exercising his right. This kind of possession necessarily varies with the nature of the right from which it arises; a person may be in possession of a thing by virtue of his right of ownership, or as lessee, bailee, etc.; or his possession may be merely permissive, as in the case of a licensee; or it may be a possession coupled with an interest, as in the case of an auctioneer (Woolfe v. Horne (1867) 2 Q.B.D. 358). So the right may be absolute, that is, good against all persons: or relative, that is, good against all with certain exceptions; thus a carrier or borrower of goods has a right to their possession against all the world except the owner.
In jurisprudence, the possession of a lessee, bailee, licensee, etc., is sometimes called "derivative possession", while in English law the possessory interest of such a person, considered with reference to his rights against third persons who interfere with his possession, is usually called a special or qualified property, meaning a limited right of ownership.
Possession without right is called wrongful or adverse, according to the rights of the owner or those of the possessor are considered. Wrongful possession is where a person takes possession of property to which he is not entitled, so that the possession and the right of possession are in one person, and the right to possession in another. Where an owner is wrongfully dispossessed, he has a right of action to recover his property, or, if he has an opportunity, he can exercise the remedy of recaption in the case of goods, or of entry in the case of land."
53. In "Legal Thesaurus" Regular Edition-William C. Burton (1981), published by Macmillan Publishing Co., Inc. New York., at page 391:
"POSSESSION (Ownership), noun authority, custody, demesne, domination, dominion, exclusive, right, lordship, occupancy, possessio, proprietorship, right, right of retention, seisin, supremacy, tenancy, title ASSOCIATED CONCEPTS: action to recover possession, actual possession, adverse possession, chain of possession, constructive possession, continuity of possession, continuous possession, debtor in possession, estate in possession, holder in possession, hostile possession, lawful possession, mortgagee in possession, naked possession, notorious possession, open and notorious possession, party in possession, peaceable possession, person in possession, physical possession, purchaser in possession, quiet possession, right of possession, tenant in possession, undisturbed possession, uninterrupted possession, unlawful possession, wrongful possession.
FOREIGN PHRASES: Traditio nihil amplius transferre debet vel potest, adeum qui accipit, quam est apud eum qui tradit. Delivery ought to, and can, transfer nothing more to him who receives than is in possession of him who makes the delivery. Jus triplex est,-propietatis, possessionis, et possibilitatis. Right is threefold,-of property, of possession, and of possibility. In aequali jure melior est conditio possidentis. In a case of equal right the condition of the party in possession is the better. Pro possessione praesumitur de jure. A presumption of law arises from possession. Nihil praescribitur nisi quod possidetur. There is no prescription for that which is not possessed. Privatio praesupponit habitum. A deprivation presupposes something held or possessed. Duorum in solidum dominium vel possessio esse non potest. Sole ownership or possession cannot be in two persons. Cum de lucro duorum quaeritur, melior est causa possidentis. When the question of gain lies between two persons, the cause of the possessor is the better. Longa possessio parit jus possidendi, et tollit actionem vero domino.-Long possession creates the right of possession, and deprives the true owner of his right of action. Aliud est possidere, aliud esse in possessione. It is one thing to possess; it is another to be in possession. Quod meum est sine facto meo vel defactu meo amitti vel in alium transferri non potest. That which is mine cannot be transferred to another without my act or my default. Quod meum est sine me auferri non potest. What is mine cannot be taken away without my consent. Nul charter, nul vente, ne nul done vault perpetualment, si le donor n'est seise al temps de contracts de deux droits, sc. Del droit de possession et del droit de propertie. No grant, no sale, no gift, is valid forever, unless the donor, at the time of the contract, has two rights, namely, the right of possession, and the right of property. Donatio perficitur possessione accipientis. A gist is perfected by the possession of the receiver. Melior est conditio possidentis, et rei quam actoris. The condition of the possessor and that of the defendant is better than that of the plaintiff. In pari delicto melior est conditio possidentis. When the parties are equally in wrong, the condition of the possessor is the preferable one. Longa possessio jus parit. Long possession begets right. Donator nunquam desinit possidere, antequam donatorius incipiat possidere. A donor never ceases to possess until the donee begins to possess. Non valet donatio nisi subsequatur traditio. A gift is invalid unless accompanied by possession. Nemo dare potest quod non habet. No one is able to give that which he has not. Terra manens vacua occupanti conceditur. Land remaining vacant is given to the occupant. Non potest videri desisse habere qui nunquam habuit. A person who has never had cannot be deemed to have ceased to have it. In pari causa possessor potior haberi debet. In an equal cause he who has the possession has the advantage. Cum par delictum est duorum, semper oneratur petitor et melior habetur possessoris cause. When there is equal fault on both sides, the burden is always placed on the plaintiff, and the cause of the possessor is preferred.
POSSESSION (Property), noun asset, belonging, bona, chattel effect, goods, holding, item, item of personalty, money, movable, possessio, res, resource, treasure, valuable.
FOREIGN PHRASES: Non possessori incumbit necessitas probandi possessiones ad se pertinere. It is not incumbent on the possessor of property to prove that his possessions belong to him.
POSSESSIONS, noun assets, belongings, bonorum, capital, chattels, colonies, domain, dominions, earnings, effects, equity, estate, fortune, funds, goods, holdings, items of personalty, material wealth, movables, pecuniary resources, personal property, personalty, possessio, private property, property, res, resources, stock, stock in trade, territory, treasure, wealth, worldly belongings."
54. In "Mitra's Legal & Commercial Dictionary" 5th Edition (1990) by A.N. Saha, published by Eastern Law House Pvt. Ltd., at pages 558-559:
Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed.
Possession is a polymorphous term which may have different meanings in different contents. It is impossible to work out a completely logical and precise definition of "Possession" uniformly applicable to all situations in the context of all statutes. Suptd. And Legal Rememberancer v. Anil Kumar AIR 1980 SC 52:1979 Cr LJ 1390: (1979) 2 SCWR 334: 1979 Cr App R (SC) 282. Possession must be conscious possession. S.D.O., Shiv Sagar v Goapl Chandra AIR 1971 SC 1190. Possession must be de facto possession as also precarious possession. Bishambhar v State of Bihar 1979 Cr LJ (NOC) 197: 1979 BLJ 319.\ Possession or occupation may take various forms and even keeping the household affects by the owner in the premises is act of occupation. Bimal Devi v Kailash Nandan AIR 1984 SC 1376.
There are two varieties of possession--(a) real or actual possession, and (b) constructive or symbolical possession.
The meaning of possession depends on the context in which it is used. English law has never worked out a completely logical and exhaustive definition of possession. Towers & Co. Ltd. v Gray (1961) 2 All ER 68: (1961) 2 QB 351.
Possession need not be physical possession, but can be constructive, having power and control over the gun. Gunwantlal v State AIR 1972 SC 1756."
55. In P Ramanatha Aiyar's "The Law Lexicon" with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997), published by Wadhwa and Company Law Publishers, at pages 1481-1483:
"1. Physical control, whether actual or in the eyes of law, over property; the condition of holding at one's disposal (S. 66, T.P. Act); 2. the area in one's possession (S. 37, Indian Evidence Act).
Possession is a detention or enjoyment of a thing which a man holds or exercise by himself or by another, who keeps or exercise it in his name.
"Possession is said to be in two ways-either actual possession or possession in law.
"Actual Possession," is, when a man entreth into lands or tenements to him descended, or otherwise.
"Possession in Law, is when lands of tenements are descended to a man, and he hath not as yet really, actually, and in deed entered into them: And it is called possession in law because that in the eye and consideration of the law, he is deemed to be in possession, inasmuch as he is liable to every mans action that will sue concerning the same lands or tenements."
The term has been defined as follows: Simply the owning or having a thing in one's power; the present right and power to control a thing; the detention and control of the manual or ideal custody of anything which may be the subject of property, for one's use of enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name; the detention or enjoyment of a thing which a man holds or exercise by himself or by another who keeps or exercises it in his name; the act of possession a having and holding or retaining of property in one's power or control; the sole control of the property or of some physical attachment to it; that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all other persons. 171 IC 159=1937 ALJ 951=1937 ALR 913=1937 AWR 823=AIR 1937 All 735; 12 Bom LR 316=5 IC 457; 6 Bom LR 887; 16 CPLR 13; 4 NLR 78=8 Cr LJ 18.
There can be no possession without intention or consciousness or will. Norendranath Masumdar, v. The State, AIR 1951 Cal 140. (S. 19(f) Arms Act. 1878).
Possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power or control. Gunwantlal v. The State of M.P., AIR 1972 SC 1756, 1759.
Possession is a polymorphous term which may have different meanings in different contents. The possession of a fire arm must have the element of consciousness or knowledge of that possession and when there is no actual physical possession a control or dominion over it, there is no possession.
The word "possession" naturally signifies lawful possession. The possession of a trespasser could not be a possession of a tenant so as to attract Sec. 14(1). Bhagat Ram v. Smt. Lilawati Galib, AIR 1972 HP 125, 130.
The word 'possessed' means the state of owning or having in one's hand or power but even this broad meaning will not apply in the case of a share or a woman when there has been no partition by metes and bounds. Modi Nathubai Motilal v. Chhotubhai Manibhai Besai, AIR 1962 Guj. 68, 77.
Obtaining a symbolic possession is in law equivalent to obtain actual physical possession and has the effect of terminating the legal possession of the person bound by the decree and order. Umrao Singh v. Union of India; AIR 1975 Del. 188, 191.
The word 'possession' implies a physical capacity to deal with the thing as we like to the exclusion of every one and a determination to exercise that physical power on one's own behalf. In Re Pachiripalli Satyanarayanan, AIR 1953 Mad 534.
Where an estate or interest in realty is spoken of as being "in possession", that does not, primarily, mean the actual occupation of the property; but means, the present right thereto or to the enjoyment thereof.
The word "possession" in S. 28 of the Limitation Act XV of 1877, embraces both actual possession and possession in law, 6 CWN 601.
The word "possession" in C.P. Code, includes constructive possession, such as possession by a tenant. 25 B. 478(491).
Possession in Specific Relief Act (I of 1877), S. 9 does not include joint possession, but refers to exclusive possession. 23 IC 618 (619).
The word "possession" means the legal right to possession. Health v. Drown, (1972) 2 All ER 561, 573 (HL)."
56. Possession, therefore, has two aspects. By itself it is a limited title which is good against all except a true owner. It is also prima facie evidence of ownership. In Hari Khandu Vs. Dhondi Nanth, (1906) 8 Bom.L.R. 96, Sir Lawrence Jenkins, C.J. observed that possession has two fold value, it is evidence of ownership and is itself the foundation of a right to possession. The possession, therefore, is not only a physical condition which is protected by ownership but a right itself.
57. In Supdt. & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja & Ors. AIR 1980 SC 52 the possession was described by the Court in paras 13, 14 and 15 as under:
"13. "Possession" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid)
14. According to Pollock & Wright "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.
15. While recognising that "possession" is not a purely legal concept but also a matter of fact; Salmond (12th Edition, page 52) describes "possession, in fact", as a relationship between a person and a thing. According to the learned author the test for determining "whether a person is in possession of anything is whether he is in general control of it".
58. Besides, the title in different context has been explained having distinguish colour, context and consequences. There are certain kinds of title and their meanings given in Black's Law Dictionary, are as under:
"Absolute title. As applied to title to land, an exclusive title, or at least a title which excludes all others not compatible with it. An absolute title to land cannot exist at the same time in different persons or in different governments."
"Adverse title. A title set up in opposition to or defeasance of another title, or one acquired or claimed by adverse possession."
"Defective title. Title which has some defect or is subject to litigation and hence may not be transferred to another."
"Equitable title. A right in the party to whom it belongs to have the legal title transferred to him; or the beneficial interest of one person whom equity regards as the real owner, although the legal title is vested in another."
"Good title. Title which is free of defects and litigation and hence may be transferred to another."
"Imperfect title. One which requires a further exercise of the granting power to pass the fee in land, or which does not convey full and absolute dominion."
"Lucrative title. In the civil law, title acquired without the giving of anything in exchange for it; the title by which a person acquires anything which comes to him as a clear gain, as, for instance, by gift, descent, or devise. Opposed to "onerous title," as to which see infra."
"Onerous title. In the civil law, title to property acquired by the giving of a valuable consideration for it, such as the payment of money, the rendition of services, the performance of conditions, the assumption of obligations, or the discharge of liens on the property; opposed to "lucrative" title, or one acquired by gift or otherwise without the giving of an equivalent."
"Paper title. A title to land evidenced by a conveyance or chain of conveyances; the term generally implying that such title, while it has color or plausibility, is without substantial validity."
"Perfect title. Various meanings have been attached to this term: (1) One which shows the absolute right of possession and of property in a particular person. (2) A grant of land which requires no further act from the legal authority to constitute an absolute title to the land taking effect at once. (3) A title which does not disclose a patent defect suggesting the possibility of a lawsuit to defend it; a title such as a well-informed and prudent man paying full value for the property would be willing to take. (4) A title which is good both at law and in equity. (5) One which is good and valid beyond all reasonable doubt. (6) A marketable or merchantable title."
"Presumptive title. A barely presumptive title, which is of the very lowest order, arises out of the mere occupation or simple possession of property (jus possessionis), without any apparent right, or any pretense of right, to hold and continue such possession."
"Singular title. The title by which a party acquires property as a singular successor."
"Marketable title. A title which is free from encumbrances and any reasonable doubt as to its validity, and such as a reasonably intelligent person, who is well informed as to facts and their legal bearings, and ready and willing to perform his contract would be willing to accept in exercise of ordinary business prudence."
"Merchantable title. A good and marketable title in fee simple, free from litigation, palpable defects, and grave doubts, a title which will enable the owner not only to hold it in peace but to sell it to a person of reasonable prudence."
"Just title. By the term "just title," in cases of prescription, is meant a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property."
59. Looking from the angle of jurisprudential categories of title, if the contention of learned counsel for the petitioner is accepted; in the matter of immoveable property, it will never be a case of original title but always a case of derivative title and, therefore, if the broad proposition advanced, is held to be correct, it would render the very basis of enactment of Section 20(2)(f) of Act, 1972, as redundant and superfluous.
60. Section 20(3)(f) reads as under:
"20.(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
. . . . .
(f) that the tenant has renounced his character as such or denied the title of the landlord and the letter has not waived his right of re-entry or condoned the conduct of the tenant;"
61. In order to give effect to the legislative intention in making clause (f) of Section 20(2) of Act, 1972 as a ground for eviction of a tenant without any violence to the language used therein what this Court finds is that the kind of title which ex facie admits some suspicion or doubt over the clear title or right of possession of the owner of property in absolute terms, only then there may be an occasion to extend the benefit of such reasonable doubt to the tenant by not permitting his eviction if he denies the title of landlord but not in case of every such denial in the name of "derivative title". All the kinds of titles recognised in law, as discussed above, are form of "derivative title" though some are also part of original title but it cannot be said that in every case of "derivative title" the tenant cannot incur any liability of eviction under Section 20(2)(f) of Act, 1972. For example in case of a good title, absolute title, perfect title, a tenant cannot escape his liability of eviction in case he denies landlord's title of one of the kind, as above. In case of imperfect title, defective title, adverse title, paper title, presumptive title etc., in my view, there may be a scope where the tenant, not being sure about clear title of landlord, if deny the same, may not suffer the liability of eviction on aforesaid grounds.
62. The observations made above are not exhaustive but illustrative only. What the Court intends to say is that in case of "original title", ground for eviction under Section 20(2)(f) shall always be attracted and there is no scope of defence otherwise but the "derivative title" has different shades and colours, therefore, certain limited kinds of "derivative title", if disputed or denied, may not result in giving a ground to landlord to seek evidence of tenant but not at all. It all depends on the facts and circumstances of a particular case.
63. What I have observed above, finds support from the judgment of Apex Court in Sheela and others Vs. First Prahlad Rai Prem Prakash (supra). It says that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant would not, expressly or impliedly, deny landlord's title or prejudice it by any act which is inconsistent with the existence of a tenancy. The Court refers to Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with contingencies of denouncement of title by lessee. It says that "Acts which prejudice lessor's title" state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. The Court said that thus, it is a cause of forfeiture if lessee denies title of lessor by alleging that the title of landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers premises to him in order to enable him to set up a title.
64. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title, adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. It is not sufficient that the lessee does not at once acknowledge title of landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.
65. In Sheela and others Vs. First Prahlad Rai Prem Prakash (supra) the Court also observed that after creation of tenancy, if title of landlord is transferred or devolves upon a third person, the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights, acknowledges the title of transferee, either expressly or by paying rent to him, the rule of estoppel once again comes into operation. It would be unjust to allow such tenant to approbate and reprobate. Having said so, the Court, therefore, restricted scope of dispute by tenant regarding title of landlord by observing that it would depend on the intention as to whether such dispute has been raised in the circumstances when there is cloud on the clarity of title of the person claiming to be landlord or owner etc. The Court in this contest said:
"In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of clause (c) of sub-section (1) of Section 12 of M.P. Accommodation Control Act, 1961. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party. A tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy. Such an act of the tenant does not attract applicability of Section 12(1)(c) abovesaid. It is the intention of the tenant, as culled out from the nature of the plea raised by him, which is determinative of its vulnerability."
66. In the case before Apex Court subsequent purchaser was required to provide proof of ownership over the suit property and in the facts of case since the doubt of tenant was found to be bona fide, ground for ejectment on the basis of denial of title was found not attracted.
67. In V.M. Salim Vs. Fathima Muhammad and others, Civil Appeal No. 1297 of 2006, decided on 24.02.2006 the Apex Court observed, where on being informed of the sale of the premises by the vendor/purchaser, the tenant acknowledges the purchaser as his landlord, and pays rents to him, he cannot thereafter be heard to say that the sale in favour of his landlord is sham. The only exception to this principle, is where the derivative title of the purchaser-landlord is challenged by the tenant by pleading and proving that when he attorned, he was labouring under a mistake or ignorance as to material facts affecting title of the new landlord.
68. In the above context, I may refer to the classic statement from Spencer Bower and Turner on Estoppel by Representation (Third Edition) on this issue:
"Where a tenant, with full knowledge of the facts, either expressly in writing, or impliedly by acts, such as the payment of rent, attorns tenant to a person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession, or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned. But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estopped to which he would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person."
69. In Lingala Kondala Rao v. Vootukuri Narayana Rao, 2003 (1) SCC 672, the Court said:
"In an eviction suit between the landlord and the tenant the motive behind execution of the document conferring title on the landlord cannot be allowed to be gone into so long as the document has been executed and registered in accordance with law and the transaction is otherwise legal."
70. In D. Satyanarayana Vs. P. Jagadish, AIR 1987 SC 2192, the Court said that a tenant is not precluded from denying derivative title of the persons claiming through the landlord and the estoppel is restricted to the denial of title at the commencement of tenancy, i.e., it is open to the tenant even without surrendering possession to show that since the date of tenancy, the title of landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder.
71. Same was the fact situation in Chotey Lal Shukla (supra) where property in dispute was attached by income tax authorities and sold for recovery of tax dues. Though property was sold through registered sale deed dated 04.10.1985, the said sale deed was declared void by Court on the ground that auction proceedings were not shown to have been properly conducted.
72. The observations of the Court in Chotey Lal Shukla (supra) about "derivative title" have to be read in the light of facts stated therein and not in exclusion thereof. The Court has noticed a fact that property stood transferred by way of a sale deed executed by Income Tax Department in furtherance of tax recovery auction proceedings and pursuant to such sale deed, owner becoming landlord, seeks eviction of tenant but the very basis of his title, i.e., the sale deed was declared void by Court on the ground that the auction proceedings were not shown properly conducted and the basis itself having disappeared, the tenant committed no fault in denying title. It was clearly a case of imperfect or defective title or no title at all. The interesting aspect is that the property in dispute in Chotey Lal Shukla (supra) was the same as the one in present case.
73. I enquired from learned counsel for the parties appearing before this Court as to whether sale deed dated 04.10.1985, which is the basis for claim initiated by respondent, has been set aside and presently is non-est but both counsels stated that to their knowledge the said sale deed has not been declared void or set aside by any court of law and the matter is sub-judice and still pending. It appears that this factum mentioned in the judgment of Chotey Lal Shukla (supra) that registered sale deed dated 04.10.1985 was declared void by Court, is factually not correct and counsels for parties did not inform Court about relevant fact correctly and that is how the matter is decided.
74. It is also worthy to mention at this stage that the factum about sale deed dated 04.10.1985 declared void by court, also appears to be a mistake of fact. I have perused the record of Writ Petition No. 43118 of 1999, Chhotey Lal Shukla Vs. IXth Additional District Judge, Kanpur Nagar and others, in which the aforesaid decision was rendered. In the counter affidavit filed therein by Sri Ashok Kumar Raghuvanshi, respondent no. 2 therein, he stated in para 7 that sale deeds dated 04.03.1986 and 18.03.1986 were set aside by High Court and not 04.10.1985. A copy of replication filed in the suit filed by Sri Ashok Kumar in 1988 in the Court of Judge, Small Causes Court, Kanpur Nagar was also appended stating that he purchased the suit accommodation vide sale deed dated 04.10.1985. It appears that there was another suit filed by Sri Chhotey Lal Shukla, i.e., Suit No. 248 of 1986, wherein the Income Tax Department filed its written statement and in para 6 thereof stated that auction of suit property was conducted on 04.03.1986 and 18.03.1986 in which certain property was sold but before it could be confirmed, the same was stayed by this Court in a writ petition filed by M/s Mannoo Kal Kedar Nath, defendant no. 1 therein. I have also got the copy of judgment in writ petition, i.e., M/s Mannoo Kal Kedar Nath Vs. Income Tax Officer and others, reported in 1988(68) CTR All 32. It is a Division Bench judgment and para 5 thereof clearly shows that this Court set aside/quashed the sale deeds dated 04.03.1986 and 18.03.1986. Para 5 of the judgment reproduced as under:
"5. In the results, this petition succeeds and is allowed. The sales, dated March 4, 1986, and March 18, 1986, are quashed. It shall be open to the Department to proceed in accordance with law. Since the sale has been quashed, the amount deposited by the auction purchaser may be refunded to him. There shall be no order as to costs."
75. It is thus evident that the sales which were set aside by this Court were of subsequent period and not that of 04.10.1985.
76. So far as this Court is concerned, I repeatedly enquired from learned counsel for the parties, whether sale deed dated 04.10.1985, which is the foundation of entire suit, filed by respondent-landlord, has been declared illegal or has been quashed and is no more a valid document in the eyes of law, even till date, whereupon it was clearly stated on both sides that to their knowledge the said sale deed is still operating and has not been set aside or declared void by any competent Court of Law.
77. If that be so and in the pleadings, petitioners-tenants admit that they treated Income Tax Department as landlord and paid rent to them, meaning thereby they admit that Income Tax Department possesses valid title and, therefore, satisfies the definition of landlord under Section 3(j). In that circumstance, once the title stood transferred by Income Tax Department itself vide sale deed dated 04.10.1985, the respondent-landlord entered into the shoes of Income Tax Department and this fact being in the notice and knowledge of petitioners, their action in denouncing title of respondent-landlord would clearly attract mischief under Section 20(2)(f) of Act, 1972 rendering them liable for eviction on the said ground.
78. It is in these facts and circumstances of the case, I do not find any reason or justification to interfere with impugned judgments.
79. The writ petition lacks merit. Dismissed. No costs.
Order Date :- 21.11.2012 AK