Delhi High Court
Om Prakash & Ors. vs Prem Singh on 8 December, 2015
Author: Vipin Sanghi
Bench: Vipin Sanghi
$~6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 08.12.2015
% RSA 261/2014
OM PRAKASH & ORS ..... Appellants
Through: Mr. J.K. Bhola & Mr. R.K. Sharma,
Advocates.
versus
PREM SINGH ..... Respondent
Through: Mr. H.M. Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
C.M. No.16194/2014 (under Section 5 of the Limitation Act read with
Order 41 Rule 3A CPC for seeking condonation of 2448 days delay in
filing the present appeal)
1. This application has been filed by the appellants to seek condonation
of 2448 days delay in filing the present second appeal.
2. This appeal is directed against the judgment and decree dated
05.10.2007 passed by Sh. M.C. Garg, Additional District Judge, Tis Hazari
Courts, Delhi (as His Lordship then was) in RCA No.8/2006. The appeal
has been preferred only on 18.09.2009, thereby entailing the aforesaid delay.
3. The explanation furnished by the appellants to seek condonation of
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delay is that the appellants had preferred a review petition within the period
of limitation before the First Appellate Court, which got decided only on
16.08.2014. The present appeal was filed within the period of limitation
from the passing of the review order dated 16.08.2014. The appellants
submit that the appellants had been diligently following up the matter in the
review application. The appellants submit that the delay is technical in
nature on account of the long time taken by the Appellate Court in deciding
the review application.
4. Learned counsel for the appellants has placed reliance on the order
dated 15.12.2008 passed in Mohd. Salim Vs. Bhanumati & Others,
Application No.116855/2008 in FAO No.673/2008, wherein, in similar
circumstances, the Allahabad High Court had condoned the delay of 1 year
and 54 days in filing the appeal since the appellant had, in the meantime,
filed a review application and the same was pending.
5. Learned counsel for the respondent has opposed the application. The
submission of learned counsel for the respondent is that the appellants
themselves were responsible for the delay in disposal of the review
application and, therefore, the appellants cannot take advantage of the fact
that the review application was pending during the said period.
6. Having heard learned counsel, I am of the view that the appellants
have been able to sufficiently explain the delay in filing the present appeal.
From the conduct of the appellants, it is seen that the appellants did not
delay the filing of the review application and filed the same within the
period of limitation. The appellants cannot be held responsible for the delay
RSA 261/2014 Page 2 of 40
by the First Appellate Court in disposing of the review for nearly seven
years. The respondent/ appellant cannot raise a grievance in this regard
because the respondent was also participating in the said proceedings. If the
respondent was aggrieved by the said delay, it was open to him to oppose
the adjournments; not seek adjournments on his own, and; also to seek
expedited disposal of the review application by approaching this Court. The
delay cannot be said to be deliberate since the review of the appellants was
pending.
7. Consequently, the application is allowed and the delay of 2448 days
in filing the present appeal is condoned.
RSA 261/2014 and C.M. No.16192/2014
8. The present second appeal is directed against the judgment & decree
dated 05.10.2007 passed in RCA No.8/2006 by the learned First Appellate
Court, namely the learned ADJ/ARCT, Delhi, whereby the first appeal
preferred by the respondent/ plaintiff was allowed and the suit preferred by
the original plaintiff for possession of the suit property was decreed.
9. The plaintiff filed the original suit bearing Suit No.991/2002 for
recovery of possession of the suit property bearing Municipal No.4/18,
Katra Kheman Ram, Andha Mughal, Beg Kere Khan, Delhi on the premise
that he had inherited the suit property from his father Chaudhary Kheman
Ram. He stated that the property was ancestral. He stated that late Sh. Ram
Narain - the predecessor-in-interest of the defendant/ appellants was a
tenant in respect of the suit property under Chaudhary Kheman Ram. He
further stated that Chaudhary Kheman Ram had filed a suit for ejectment of
RSA 261/2014 Page 3 of 40
late Sh. Ram Narain, which was decreed. However, late Sh. Ram Narain
continue to hold over the premises and to be in possession of the suit
property.
10. He further disclosed that a suit for recovery of mesne profit was also
filed by Chaudhary Kheman Ram, which was decreed in the year 1963.
During this period, Sh. Ram Narain had died. The defendants being the
legal representatives of late Sh. Ram Narain continue to hold the suit
property after his death.
11. He stated that in the year 1973, defendant No.1 set up a hostile title in
respect of the suit property, and filed a suit against the plaintiff for
declaration that he is the owner of the property by way of adverse
possession. This suit was dismissed.
12. He also disclosed that he filed a suit for recovery of rent of the suit
property against the defendant No.4 in which defendant No.1 appeared as
attorney of defendant No.4 and took the stand that defendant is owner of the
suit property by way of adverse possession. The plaintiff claimed that the
superstructure in the property was built by predecessor-in-interest of the
defendant. The plaintiff claimed that he was entitled to possession in respect
of the land by removing the superstructure. Since the defendants had failed
to handover the property, the suit was filed by the plaintiff.
13. The suit was contested by the defendants. One of the defences raised,
inter alia, was that the suit was barred by limitation. The defendants stated
that the plaintiff's father Chaudhary Kheman Ram had obtained a decree of
ejectment against the father of the defendants on 26.03.1957. However, this
RSA 261/2014 Page 4 of 40
decree was not executed within the statutory period of twelve years. They
have claimed that the second suit for ejectment was not maintainable. The
plaintiff had sent two notices dated 06.11.1970 and 09.07.1972 to defendant
No.1, wherein the plaintiff described defendant No.1 as an unauthorized
occupant and a trespasser. However, no such allegation was made qua
defendants No.2 to 4. Therefore, the suit was not maintainable against the
defendants No.2 to 4. The defendants claim that the permanent structure on
the plot had been raised by defendant No.1, who had acquired title by
adverse possession and no relief could be granted to the plaintiff after a
lapse of more than 25 years from the date of decree of ejectment, i.e.
26.03.1957.
14. The Trial Court framed the issues on 22.11.1982; Issue No.3 being:
"Whether the suit is barred by limitation? OPD"; Issue No.2 was:
"Whether the plaintiff has locus standi to file the present suit", and; Issue
No.4 was: "Whether the suit is not maintainable against the defendants No.2
to 4?". The Trial Court initially dismissed the suit vide judgment dated
10.08.1984. This judgment was carried in appeal, and in first appeal, the
same was set aside vide order dated 20.03.1987. The case was remanded
back to the Trial Court with a direction to return findings on Issues No.2, 3,
4, 6 & 7 on the basis of the pleadings and evidence on record. The Trial
Court by the judgment and decree dated 01.02.2005 again dismissed the suit.
While doing so, Issues No.2 & 4 were decided in favour of the plaintiff,
while Issue No.3, i.e. "Whether the suit was barred by limitation?" was
decided in favour of the defendant/ appellant.
15. The respondent/ plaintiff then preferred a regular first appeal being
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RCA No.8/2006. The appellant/ defendants also preferred cross-objections
qua the findings returned on Issues No.2 & 4 by the Trial Court. The First
Appellate Court, by the impugned judgment, set aside the judgment of the
Trial Court by holding that the suit was not barred by limitation, and
consequently, while allowing the appeal, decreed the suit in favour of the
appellants qua the suit property. The respondent/ defendant was granted
liberty to remove superstructure within one month of passing of the decree.
In the alternative, the plaintiff was held entitled to take possession of the
land as well as building constructed thereupon.
16. The appellants then preferred a review application under Order 47
Rules 1 & 2 CPC read with Sections 114 & 115 CPC to seek review of the
judgment dated 05.10.2007 primarily on the premise that the First Appellate
Court had ignored the findings returned by the learned Additional District
Judge while deciding the first appeal on 20.03.1987, whereby the case was
remanded back to the Trial Court for fresh adjudication on Issues Nos.2, 3,
4, 6 & 7. It was also claimed that there were factual errors and legal errors
in the judgment dated 05.10.2007. The First Appellate Court, however,
rejected the review vide order dated 16.08.2014, whereafter the present
second appeal has been preferred to assail the judgment & decree dated
05.10.1987 with an application to seek condonation of delay, which has
been allowed hereinabove by the order passed today.
17. The submission of learned counsel for the appellants/ defendants is
that the finding returned by the First Appellate Court on Issue No.3 is
laconic, and that it raises a substantial question of law for consideration of
this Court, namely: "Whether the suit of the respondent/ plaintiff for
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possession was barred by limitation?". Learned counsel submits that with
the passing of the judgment & decree on 26.03.1957, the status of the tenant,
namely Sh. Ram Narain, ceased to be that of a tenant holding over, as the
occupation of Sh. Ram Narain was not with the consent of the landlord
Chaudhary Kheman Ram and was hostile to him. Learned counsel submits
that the possession of late Sh. Ram Narain in the face of the ejectment
decree, and the decision of the execution proceedings launched by
Chaudhary Kheman Ram, leave no manner of doubt that late Sh. Ram
Narain was treated as a trespasser in the suit property post the passing of the
said ejectment decree.
18. He further submits that late Sh. Ram Narain did not make any
payment to the landlord Chaudhary Kheman Ram towards rent after the
passing of the decree for ejectment dated 26.03.1957. He submits that Sh.
Ram Narain, the tenant, expired on 05.12.1967 leaving behind the appellants
as his legal heirs and representatives. On 06.11.1970, the respondent served
a notice and demanded mesne profits and also vacant possession of the
premises from the appellants herein. A similar notice was sent on
09.08.1972. These notices clearly show that the appellants were being
treated as trespassers and not as tenants holding over in the suit property.
Learned counsel submits that the suit filed by Sh. Rameshwar Dayal, S/o Sh.
Ram Narain to seek a declaration of title on the premise of being in adverse
possession was not even maintainable, as the plea of adverse possession can
be raised as a defence and cannot be affirmed on the basis of a declaratory
claim in a suit. He submits that filing of the said suit did not give cause of
action to the respondent/ plaintiff.
RSA 261/2014 Page 7 of 40
19. Learned counsel further submits that the issue is not whether the
appellant was entitled to protection against dispossession on the basis of
adverse possession. The question is till when the respondent/ plaintiff could
have filed the suit for possession, which was filed on 13.03.1981.
20. Learned counsel for the appellant placed reliance on the decision of
this Court in Ram Singh Vs. Nathi Lal & Others, AIR 1983 Delhi 114, to
submit that after the passing of an ejectment decree, and after the demise of
the tenant, his heirs and legal heirs remain in possession as unauthorized
occupants/ trespassers. He submits that late Sh. Ram Narain, the original
tenant died on 05.12.1967 and the possession of the appellants/ heirs of late
Sh. Ram Narain post 05.12.1967 has been that of trespassers. The period for
filing the suit for recovery of possession, thus, expired on 04.12.1979,
whereas the suit was filed on 13.03.1981.
21. He also placed reliance on M/s Dr. Ambedkar Education Society v.
M/s Kamakshi Buildings & Partnership Firm & Ors., 2000 AIHC 2029
and Lalit Mohan Ghosh Vs. Atal Mondal & Others, AIR 1972 Cal.81.
Reliance has also been placed on the observations made by Ms. Santosh
Duggal, ADJ (as Her Ladyship then was) in her judgment dated 20.05.1987,
whereby the initial judgment of the learned Sub-Judge, Delhi dated
10.08.1984 was set aside and Issues No.2, 3, 4 & 6 were remitted back to the
Trial Court for deciding afresh. In the said judgment dated 20.05.1987, the
learned ADJ made the following observations:
"26. It has, therefore, to be taken as established that the D.H
Kheman Ram namely plaintiff's father had, irrespective of the
fact that the decree had not been put to execution, did not treat
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Ram Narain, deceased as a tenant in the suit property, as
evidenced by the fact that he sued him for recovery of mesne
profits for use and occupation and not for rent. The Judgment
of Hon'ble Delhi High Court on which the Ld. Counsel for the
Appellant placed reliance reported in AIR 1983 Delhi-114 has
a direct application to the facts of the present case because the
facts are similar inasmuch as here also the ejectment decree
was not put to execution and no permission even of the
Competent Authority under the Slum Area Act had been applied
for and that the decree remained un-executed against the tenant
till his death, and thereafter a suit for recovery of possession
has been brought against his legal heirs, which suit was held to
be a perfectly maintainable.
27. ... ... ... On the basis of this authority, the suit of the
plaintiff could not be held to be not maintainable because their
predecessor in interest has not left any heritable rights to the
defendants for possession of the property, and the plaintiff was
entitled to come up with a suit for recovery of possession on the
allegations that the defendants were unauthorized occupants."
22. Learned counsel for the appellants lastly submits that the cross-
objections preferred by the appellants have not been considered by the First
Appellate Court, since there is no adjudication on the issue raised by the
appellants with regard to the locus standi of the respondent to file the suit.
23. On the other hand, learned counsel for the respondent submits that
there is no merit in the present appeal and it does not raise any substantial
question of law for consideration of this Court. He submits that the present
appeal is merely another attempt by the appellant to somehow retain
possession of the suit property, despite the passing of the decree in favour of
the father of the respondent/ plaintiff in 1957 and despite the passing of the
appellate decree in question. He submits that the father of the respondent/
RSA 261/2014 Page 9 of 40
plaintiff initiated execution proceedings soon after obtaining the decree in
1957. Those execution proceedings did not culminate in the possession
being delivered to the original plaintiff late Chaudhary Kheman Ram, or to
the plaintiffs. Those execution proceedings were adjourned sine die -
meaning thereby that the said execution proceedings are still pending. He
submits that mere continuance of possession by the original tenant late Sh.
Ram Narain, or thereafter by the appellants, does not tantamount to their
possession being adverse to the title of the owner. The possession of the
appellants became adverse to the plaintiffs only when, for the first time, they
openly set up a title adverse to that of the plaintiff by seeking to exercise
rights of ownership in the suit property. This happened only in the year
1973 when defendant No.1 set up a hostile title in respect of the suit
property by filing a suit to seek a declaration of his title on the basis of
adverse possession. It is only then that the plaintiff got notice that the
appellants are setting up a title adverse to that of the plaintiff. Learned
counsel submits that the said suit was withdrawn by the appellant and, thus,
the claim of adverse possession was given up by appellant No.1. In any
event, the present suit was filed by the plaintiff well within the period of
limitation from the said date, i.e. on 13.03.1981. He further submits that
even if the limitation is assumed to start on 06.11.1970 - when the plaintiff
described the appellants/ defendants as trespassers, the suit was filed within
12 years thereof. Learned counsel submits that there is no merit or basis for
the appellants to claim that their possession became adverse to the plaintiff,
or his predecessor-in-interest, immediately upon the passing of the decree in
1957 in the suit filed by late Chaudhary Kheman Ram.
RSA 261/2014 Page 10 of 40
24. Having heard learned counsel and perused the entire record as well as
the judgments of the two Courts below, I am of the view that there is no
merit in the present appeal and it does not raise any substantial question of
law for consideration of this Court.
25. The First Appellate Court has very exhaustively dealt with the issue
of limitation in the impugned judgment dated 05.10.2007. The First
Appellate Court observed that the decree for ejectment passed in 1957
initially could not be executed as such an objection was raised by late Sh.
Ram Narain that slum permission had not been obtained. This objection was
held to be not sustainable by the learned ADJ and even this Court dismissed
the appeal of the appellants. However, even thereafter, the said decree could
not be executed as there was no direction in the decree to remove the super
structure set up by the appellants' predecessor-in-interest. Consequently, the
execution application was adjourned sine die in May 1966. The First
Appellate Court held that the non-execution of the decree made no
difference to the status of Sh. Ram Narain. He continued to be a tenant
holding over till his death, and thereafter, his Legal Heirs inherited the same
status. The plea of the appellants that adverse possession could be claimed
by merely remaining in possession of the property for a long time was
rejected. The First Appellate Court, inter alia, placed reliance on Ram
Barai Singh v. Tirtha Pada Misra, AIR 1957 Cal 173, wherein the Court
has held as follows:
"In the absence of an agreement to the contrary, the tenant's
continuance of possession after the termination of the lease,
coupled with the landlord's assent, would constitute a tenancy
by holding over and the lease would be renewed from year to
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year or from month to month, according to the purpose of the
tenancy under S.106 of the Transfer of Property Act."
26. The learned Judge also relied upon Kunnabai, w/o Ganeshlal & Ors.
v. Ashu, s/o Waman & Anr., 1998 (2) MHLJ 161, wherein the essential
requirements for a claim of adverse possession were laid down in the
following words.
"the person claiming adverse possession will also have to point
out as to since when, i.e at what point of time, he started
claiming possession adverse to the real owner and further will
have to satisfy that even though his possession was of such
nature that it cautioned the real or true owner of the property
to take steps for obtaining possession, he remained in
possession uninterruptedly, peacefully, without any obstruction
from the true owner of the property. Therefore the concise
statement of material facts constituting plea of adverse
possession are necessary. A bare statement without there being
any material particulars pleaded in the written statement if
allowed to be proved, will lead the plaintiffs or true owner of
the property into confusion and taken him by surprise at the
trial."
27. Reliance was also placed on Surajmal Marwari & Ors. v.
Rampearaylal Khandelwal & Ors., AIR 1966 Pat 8, in support of the
plaintiff's plea that the defendants/ appellants herein had not pointed out
even a single overt act from which it could be ascertained as to when their
possession became hostile or adverse, prior to the filing of the suit for
declaration in 1973. The discussion found in the impugned judgment is
elaborate and exhaustive. Even though the same is lengthy, I am tempted to
quote the relevant extract from the said judgment as, in my view, it very
correctly and appropriately analysed the issues arising in the present case in
the light of the settled legal position. The relevant extract reads as follows:
RSA 261/2014 Page 12 of 40
"24. The questions to be determined by this court in this appeal
are:
(i) What was the status of deceased Ram Narain
after the order of eviction passed in 1957 till his
death;
(ii) Weather the respondents acquired the
possession of the suit property as trespassers and
if so since when;
(iii) When did they raise the plea of adverse
possession for the first time;
(iv) If the appellant inherited the suit property & if
so, since when the limitation started running
against him for filing the suit in question.
25. While deciding a plea of adverse possession and more so by
a person who was (admittedly) once inducted into the premises
as a tenant, i.e., permissible possession, the principle is that
there is a presumption that the existing state of affairs
continues. I should not be understood as saying that there can
never be adverse possession at the instance of one, who was
once upon a time a tenant against the owner but it will be a
very uphill task and would require a clear proof. The rationale
for this legal principle is that an owner is entitled to presume
that the relationship continues. Otherwise, the owner may be
thinking that it is in possession of a tenant while the period for
prescription might be running..... .... .....
26. In the present case too, the bar of Slum Area (Clearance &
Improvement) Act (which is applicable only to a tenant and not
to a ranked trespasser) was raised. This continued till at least
1966. Thus at least till that date, the permissive nature of the
possession was acknowledged. The execution which was filed in
1959 was adjourned sine die. In other words, in some ways,
technically it is still pending. It was the notice dated 6.11.70
which first alleged trespass. It was perhaps in response to this
notice that a suit was filed on 20.3.1973 claiming ownership
RSA 261/2014 Page 13 of 40
but this was withdrawn in the same year. The withdrawal in the
facts of this case can also be presumed / inferred to operate as
giving up of the claim of the hostile possession. The suit subject
matter of appeal filed in 1982 was well within 12 years from
6.11.1970. Whatever might have been said in the said notice,
the appropriate question is as to when the
respondents/defendant (tenant or his heirs) first said: "We are
no longer in possession as tenant. We do not want protection as
tenant. We are in possession as owners and you are free to file
a title suit for possession against us if you so wish." No such
intention was manifest till 1973. On the contrary the events
display a desire to use the protection of law available to tenants
to remain in possession. Even otherwise, examining all these
provisions, the conclusion is irresistible that for a property
which was once tenanted, unless restoration is shown to the
landlord (under Section 108-G of the Transfer of Property Act
which is the statutory duty of the tenant) for a tenant to assert
adverse possession and title is not to be readily accepted in
absence of clear proof.
27. In appreciating the plea, the court has also to look into the
entire conspectus of laws including landlord-tenant laws.
28. It would also be relevant to quote certain observation from
the case of T Anjappa and ors vs Somalingappa and another
reported as (2006) 7 SCC 570 where the concept of the adverse
possession has been discussed and it has been held :
"The concept of adverse possession contemplates
a hostile possession i.e. a possession which is
expressly or impliedly denies the title of the true
owner. Possession to be adverse must be
possession by a person who does not acknowledge
the other's right but denies them. The principle of
law is firmly established that a person who basis
his title on adverse possession must show by clear
and unequivocal evidence that his possession was
hostile to the real owner and amounted to denial of
his title to the property claimed. For
RSA 261/2014 Page 14 of 40
deciding whether the alleged act of a person
constituted adverse possession, the animus of the
person doing those acts is the most crucial factor.
Adverse possession is commenced in wrong and is
aimed against right. A person is said to hold the
property adversely to the real owner when that
person in denial of the owner's right excluded him
from the enjoyment of his property".
29. In another judgment titled as Konda Lakshmana Bapuji vs
Government of Andhra Pracesh reported as 2002 AIR (SC)
1012:2002 (3) SCC 258 it was held :
"The question of a person perfecting title by
adverse possessions is a mixed question of law and
fact. The principle of law in regard to adverse
possession is firmly established. It is well settled
proposition that mere possessions of the land,
however, long it may be, would not ripe into
possessory title unless the possessor has 'animus
possidendi" to hold that land adverse to the title of
the true owner. It is true that assertion of title to
the land in dispute by the possessor would in an
appropriate case, be sufficient indication of the
animus possidendi to hold adverse to title of the
true owner. But such an assertion of title must be
clear and unequivocal thought it need not be
addressed to the real owner. For reckoning the
statutory period to perfect title by prescription
both the possession as well as animus possidendi
must be shown to exist. Where, however, at the
commencement of the possession there is no
animus possidendi, the period for the purpose of
reckoning adverse possession will commence from
the date when both the actual possession and
assertion of title by the possessor are shown to
exist".
30. ... ... .... .
RSA 261/2014 Page 15 of 40
31. The judgment of the Supreme Court in Ajit Chopra V.
Sadhu Ram and others AIR 2000 SC 212 seems to be direct in
point. In the aforesaid case tenant denied relationship of
landlord and tenant before the Rent Controller against the
original owner. In appeal he was held to be a tenant and an
eviction order was passed against him. A revision petition
filed by him in the High Court was also dismissed and he was
given three months time to vacate. In the mean while the suit
property was sold to one Mr. R.C.Chopra who filed a suit for
possession. He was not a party to the original eviction
petition. The tenant set up the bar of limitation. However
rejecting the plea of the tenant it was held ;
In the result, the judgment and decree which was
passed in a previous suit under the Rent Control
Act by which it was held that respondent was
tenant and that he was required to vacate the
premises on or before 19.12.1958, would not bar
a fresh suit for recovery of possession from a
tenant. Reason being that the tenant has not
acquired title over the property by adverse
possession. It is true that the appellant could have
executed the decree passed in the said suit. He
had not executed the same on the alleged grounds
that there was a fresh agreement of tenancy.
Whatever may be position, after lapse of three
years it was not open to the appellant to file an
application for executing the said decree under
the Limitation Act, 1908, still there is, no bar
under the Rent Act or under the Code of Civil
Procedure for filing a suit for recovery of
possession from the tenant, who had failed to
deliver the possession on the basis of a decree
passed against him, unless the defendant-tenant
establishes that he has become owner of the suit
property by adverse possession, the suit filed by
the owner on the basis of his title cannot be
dismissed despite the fact that application for the
execution of the decree passed under the Rent Act
RSA 261/2014 Page 16 of 40
was barred after lapse of three years. The title of
the plaintiff over the suit property was not
extinguished (i) by the act of the parties including
claim of adverse possession (ii) by the decree of
the court or (iii) by not executing the decree
which was passed in a previous suit. If there is
any agreement between the parties after passing
of the decree, permitting the tenant to continue in
the premises, he may either be a tenant, licencee
or a trespasser. Presuming that no fresh tenancy
was created or license was granted then also
respondent has failed to acquire title by adverse
possession on the date of the suit ie 5.8.70,
because as per the decree he was entitled to
occupy the premises . By lapse of time, plaintiff
has lost right to execute the previous decree as it
became time barred but has not lost the title.
Unless the title is extinguished, second suit by the
owner if filed within period of limitation is not
barred".
32. From the aforesaid it is clear that a tenant even after
termination of his lease would remain a tenant till such time he
hand over the possession of the property to landlord or set up
adverse possession openly to the knowledge of the landlord
which must be perfected at least for a period of 12 years before
the suit for possession is filed.
33. In the present case father of first respondent was inducted
as tenant. Even though eviction order was passed against him,
same could not be executed for the reason as stated above;
status of the tenant does not change and consequently
relationship between parties continued. As such his legal heirs
cannot plead adverse possession without taking such plea
openly to the knowledge of the landlord/owner which should
have been perfected for the period more then 12 years, prior to
such hostile declaration.
RSA 261/2014 Page 17 of 40
34. .... .... ....
35 .... ... ....
36. .... .... ....
37. .... .... ....
38. .... .... ....
39. In the case of R.V Bhupal Persad vs State of Andhra
Pradesh and others (Supra) relied upon by the respondents,
Hon'ble Supreme Court dealt with the status of a person who
was inducted as a tenant, and continued in possession of the
property even after the termination of lease with or without the
consent of the landlord. It was held that "possession of such
person may not be lawful but would be juridical possession.
Such person also cannot be ousted from the suit premises
except in accordance with law. It would be relevant to take note
of para 7 and 8 of the judgment which reads as under:
"Section 105 of the Transfer of Property Act (for
short the TP Act) defines 'lease' of immovable
property as a transfer of a right to enjoy such
property made for certain time, express or implied
or in perpetuity, in consideration of a price paid or
promised or of money a share of crops service or
anything of value to be rendered periodically or on
specified occasion to the transfer by the transferee,
who accept the transfer on such terms' therefore
the lessor of immovable property by contract in
writing or otherwise can transfer his property to
the lessee perpetuity in consideration of a price
paid or promised or of money etc and the lessee
accept the transfer on such terms. Under section
111 of the T P Act a lease of immovable property
determines inter alia by efflux of the time limited.
Section 116 envisages the effect of holding over
and provides that' if a lessee or under lessee of
property remains in possession there of after the
RSA 261/2014 Page 18 of 40
determination of the lease granted to the lessee
and the lessor or his legal representatives accepts
rent from the lessee or otherwise assents of his
continuing in possession the lease is in absence of
an agreement to the contrary is renewed from year
to year or from month to month, according to the
purpose for which the property is leased as
specified in section 106. Section 106 of the TP Act
deals with the duration of the certain cases in the
absence of written contract or local usage."
"Tenant at sufferance is one who comes into
possession of land by lawful title, but who holds it
by wrong after the termination of the terms or
expiry of the lease by efflux of time, the tenant at
sufferance is, therefore, one who wrongfully
continues in possession after the extinction of a
lawful title. There is little difference between him
and a trespasser. In Mulla's Transfer of Property
Act (7 th Edn) at page 633, the position of
tenancy at sufferance has been stated thus; a
tenant at sufferance is merely a fiction to avoid
continuance in possession operating as a
tresspass, it has been described as the least and
lowest which subsist in reality. It, therefore,
cannot be created by contract and arises only by
implication of law when a person who has been
in possession under a lawful title continues in
possession after that title has been determined,
without the consent of the person entitled. A
tenancy at sufferance does not create the
relationship of landlord and tenant. At page 769,
it is stated regarding the right of the tenant
holding over thus; The act of holding over after
the expiration of the term does not necessarily
create a tenancy of any kind. If the lessee
remaining in possession after the determination
of the term the common law rule is that he is a
tenant on sufferance. The expression "holding
RSA 261/2014 Page 19 of 40
over" is used in the sense of retaining possession.
A distinction should be drawn in between a
tenant continuing in possession after the
determination of the lease, without the consent of
the landlord and a tenant doing so with the
landlord's consent. The former is called a tenant
by sufferance in the language of the English law
and the latter class of tenants is called a tenant
holding over or a tenant at will. The lessee
holding over with the consent of the lessor is in a
better position then a mere tenant at will. The
tenancy on sufferance is converted into a tenancy
at will, with the assent of the landlord. The assent
of the landlord to the continuance of the tenancy
after the determination of the tenancy would
create a new tenancy. The possession of a tenant
who has ceased to be tenant is also protected by
law. Although he may not have a right to
continue in possession after the termination of
tenancy, his possession is juridical.
40. In the present case the status of the deceased tenant at the
time of his death was that of a tenant by holding over as the late
father of the appellant allowed him to remain in possession of
the property after execution was adjourned sine die and could
not be executed. His possession was not that of a trespasser. It
was permissive possession. The respondents being the family
members of the deceased tenant were permitted to use the
property as they inherited the status of the deceased tenant. Till
such time they claimed adverse possession of the property, their
possession remained permissive or at the most that of a tenant
by holding over. The moment a adverse title was set up by them,
the appellant became compelled to file a suit for possession
within 12 years since than to save the property. Thus the
Judgment also does not come to the rescue of the respondents.
41. It may be observed here that after the termination of the
lease of a tenant, his possession becomes permissive. It could
be as a tenant by holding over which can also be converted in a
RSA 261/2014 Page 20 of 40
monthly tenancy if the landlord accept rent by virtue of section
116 of the Transfer of property Act or in the alternative, it
could be merely permissive. In such a case there is no
limitation prescribed under the Limitation Act to evict such a
person unless and until the owner wants to do so. However,
when such a person who was inducted lawfully and remains in
possession of the property as a permissive user, sets up an
adverse title then Article 65 comes in and the limitation starts
running.
42 In view of that the submissions of Ld counsel for the
respondent can not be appreciated for two reasons i.e., firstly
the aforesaid judgment only distinguishes the case of rank
trespasser and the one who remains in possession of the
property by holding over or is tenant at sufferance. In the first
case, the occupant can be thrown out by using reasonable
force, in the second case, he can not be evicted except in
accordance with law. Secondly this judgment also makes a
distinction between a tenant by holding over and a tenant at
sufferance. In the present case the status of the first respondent
after the death of his father became only that of a tenant by
holding over with the assent of the landlord as no objection was
taken by father of the appellant or by the appellant till such
time the respondents claimed adverse possession. Before that
their possession was permissive and therefore the moment they
set up an adverse title the appellant limitation began to run for
the appellant to evict them on the basis of his title as prescribed
under Article 65 of the Limitation Act.
47. In view of the aforesaid, it is held :
i) That on account of non execution of the ejectment order
passed in 1957 which was in executable as there was no
provision in the decree to remove the super structure, the status
of Ram Narain in his life time remained as that of tenant by
holding over.
ii) The respondents who are legal representative of the
deceased tenant inherited similar rights as vested in the
RSA 261/2014 Page 21 of 40
deceased tenant till such time they set up the claim of
ownership by way of adverse possession
iii) The claim of adverse possession was set up by respondent
for the first time in 1973 by filing a suit for declaration to have
become owner by adverse possession and thereafter when they
also filed an application for supply of water connection which
was within 12 years of the filing of the suit for possession.
iv) The appellant acquired ownership of the suit property from
his father and has been held to be landlord/owner of the
property and therefore was entitled to file the suit in question
on the basis of the title; and as such the suit filed by him was
within limitation in accordance with Article 65 of the Limitation
Act."
(Emphasis supplied)
28. I find myself in agreement with the said analysis of the issues by the
learned First Appellate Court and learned counsel for the appellants has not
been able to point out any error in the discussion found in the judgment of
the First Appellate Court.
29. Even if the status of the appellants after the passing of the eviction
decree became that of tenant at sufferance (because no rent was allegedly
paid by the appellants, or accepted by the respondent), it makes no
difference whatsoever in view of the law laid down by the Supreme Court in
R.V. Bhupal Persad (supra). The possession of a tenant at sufferance, like
that of a tenant holding over, is juridical and he cannot be evicted by use of
reasonable force, like a trespasser can be. He can protect his possession
against forcible dispossession. A tenant at sufferance cannot be termed as a
trespasser. A tenant at sufferance - by merely retaining possession against
the wishes and desire of the landlord, cannot be assumed to be staking rights
RSA 261/2014 Page 22 of 40
in the property as an owner. He cannot be seen as challenging or denying
the title of the owner/ landlord. His possession cannot be described as
"hostile" to the title of the landlord/ owner. He merely clutches on to the
property till evicted by use of force under the authority of law.
30. In addition, I may also refer to judgment of the Patna High Court in
Surajmal Marwari & Others Vs. Rampearaylal Khandelwal & Others,
AIR 1966 Pat 8. In this case, the defendants acknowledged being tenants of
the plaintiff on 09.10.1922. Subsequently, documents were executed
between the parties described as Kirayanamas, the last being sometime in
1932. The defendants paid rent to the plaintiff in terms of until 1938. On
03.01.1945, the plaintiffs issued a notice to quit calling upon the defendants
to vacate the house and restore possession to the plaintiffs. Despite the same
and further demands, the defendants did not vacate the premises and,
consequently, the plaintiffs instituted the suit on 09.03.1953. The defence of
the defendants was that the relationship of landlord and tenant came to end
with effect from 22.02.1933 - on the expiry of one year from the date of the
execution of the last Kirayanama. The defendants claimed that after that
date they began to exercise acts of ownership by paying Chowkidar tax and
Water Board Tax in their capacity as owner of the property. They claimed
to be in adverse possession of the property at least since 1938-39, when they
stopped making payment of rent to the plaintiffs. It was claimed that the suit
filed in 1953 was barred by limitation. The Patna High Court, by placing
reliance on Section 111 (h) of the Transfer of Property Act, rejected the
claim of adverse possession. It observed as follows:
"7. The stand taken by the principal defendants is manifestly
RSA 261/2014 Page 23 of 40
untenable having regard to the provisions of Clause (q) of
Section 108 read with Clause (a) of Section111 of the Act.
Clause (a) of Section 111, no doubt, provides that a lease of
immovable property is determined by efflux of the time limited
thereby. But Clause (q) of Section 108 lays down that on the
determination, the lessee is bound to put the lessor in vacant
possession of the property. Having regard to these two
provisions, it is abundantly clear that when the term of a lease
has expired, the lessee can determine the lease by fulfilling his
obligation of putting the lessor into possession of the property.
But if the lessee does not put the lessor into possession of the
property, and on the contrary, remains in possession thereof
then he does not become a trespasser in relation to the
property, but his status is that of a tenant on sufferance. Such
a case is governed by Section 118 of the Act"
(Emphasis supplied)
31. The Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai
Khengarbhai Harijan & Others, (2009) 16 SCC 517, analysed the concept
of adverse possession and also referred to the decisions of the Courts world
over, to held that the Courts are taking an unkind approach towards statutes
of limitation overriding property rights. The relevant extract from the said
decision reads as follows:
"14. In Secy. of State for India In Council v. Debendra Lal
Khan, AIR 1934 PC 23, it was observed that the ordinary
classical requirement of adverse possession is that it should be
nec vi, nec clam, nec precario and the possession required must
be adequate in continuity, in publicity and in extent to show
that it is possession adverse to the competitor.
15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR
1957 SC 314, while following the ratio of Debendra Lal
Khan's case (supra), observed as under:
"4... ... ...But it is well-settled that in order to
RSA 261/2014 Page 24 of 40
establish adverse possession of one co-heir as
against another it is not enough to show that one
out of them is in sole possession and enjoyment of
the profits, of the properties. Ouster of the non-
possessing co-heir by the co-heir in possession
who claims his possession to be adverse, should be
made out. The possession of one co-heir is
considered, in law, as possession of all the co-
heirs. When one co-heir is found to be in
possession of the properties it is presumed to be
one the basis of joint title. The co-heir in
possession cannot render his possession adverse to
the other co-heir, not in possession, merely by any
secret hostile animus on his own part in
derogation of the other co-heirs' title. It is a settled
rule of law that as between co- heirs there must be
evidence of open assertion of hostile title, coupled
with exclusive possession and enjoyment by one of
them to be knowledge of the other so as to
constitute ouster."
The court further observed thus:
"4 ... ... ...The burden of making out ouster is on
the person claiming to displace the lawful title of a
co-heir by his adverse possession."
16. In S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254,
Hidayatullah, J. speaking for the court observed as under:
"5... ... ... Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
becomes adverse so that the starting point of
limitation against the party affected can be found.
There is no evidence here when possession became
adverse, if it at all did and a mere suggestion in
the relief clause that there was an uninterrupted
possession for "several 12 years" or that the
RSA 261/2014 Page 25 of 40
plaintiff had acquired "an absolute title was not
enough to raise such a plea. Long possession is not
necessarily adverse possession and the prayer
clause is not a substitute for a plea."
17. The facts of R. Chandevarappa v. State of Karnataka,
(1995) 6 SCC 309, are similar to the case at hand. In this case,
this Court observed as under:
"11. The question then is whether the appellant
has perfected his title by adverse possession. It is
seen that a contention was raised before the
Assistant Commissioner that the appellant having
remained in possession from 1968, he perfected his
title by adverse possession. But the crucial facts to
constitute adverse possession have not been
pleaded. Admittedly the appellant came into
possession by a derivative title from the original
grantee. It is seen that the original grantee has no
right to alienate the land. Therefore, having come
into possession under colour of title from original
grantee, if the appellant intends to plead adverse
possession as against the State, he must disclaim
his title and plead his hostile claim to the
knowledge of the State and that the State had not
taken any action thereon within the prescribed
period. Thereby, the appellant's possession would
become adverse. No such stand was taken nor
evidence has been adduced in this behalf. The
counsel in fairness, despite his research, is unable
to bring to our notice any such plea having been
taken by the appellant."
18. In D.N. Venkatarayappa. v. State of Karnataka and Ors.,
(1997) 7 SCC 567, this Court observed as under:
"Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence
to show that the petitioners have been in
RSA 261/2014 Page 26 of 40
continuous and uninterrupted possession of the
lands in question claiming right, title and interest
in the lands in question hostile to the right, title
and interest of the original grantees, the
petitioners cannot claim that they have perfected
their title by adverse possession."
19. In Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC
271 , this Court observed as under:
"21. For the purpose of proving adverse
possession/ouster, the defendant must also prove
animus possidendi.
22. ...We may further observe that in a proper case
the court may have to construe the entire pleadings
so as to come to a conclusion as to whether the
proper plea of adverse possession has been raised
in the written statement or not which can also be
gathered from the cumulative effect of the
averments made therein."
20. In Karnataka Board of Wakf v. Govt. of India, (2004) 10
SCC 779 , this Court observed as under:
"11. In the eye of the law, an owner would be
deemed to be in possession of a property so long
as there is no intrusion. Non-use of the property by
the owner even for a long time won't affect his
title. But the position will be altered when another
person takes possession of the property and asserts
a right over it. Adverse possession is a hostile
possession by clearly asserting hostile title in
denial of the title of the true owner. It is a well-
settled principle that a party claiming adverse
possession must prove that his possession is "nec
vi, nec clam, nec precario", that is, peaceful,
open and continuous. The possession must be
adequate in continuity, in publicity and in extent
to show that their possession is adverse to the true
RSA 261/2014 Page 27 of 40
owner. It must start with a wrongful disposition
of the rightful owner and be actual, visible,
exclusive, hostile and continued over the
statutory period."
The court further observed that:
"11... ... ... plea of adverse possession is not a
pure question of law but a blended one of fact and
law. Therefore, a person who claims adverse
possession should show: (a) on what date he came
into possession, (b) what was the nature of his
possession, (c) whether the factum of possession
was known to the other party, (d) how long his
possession has continued, and (e) his possession
was open and undisturbed. A person pleading
adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish
all facts necessary to establish his adverse
possession."
21. In Saroop Singh v. Banto, (2005) 8 SCC 330, this Court
observed:
"29. In terms of Article 65 the starting point of
limitation does not commence from the date when
the right of ownership arises to the plaintiff but
commences from the date the defendant's
possession becomes adverse. (See Vasantiben
Prahladji Nayak v. Somnath Muljibhai Nayak,
(2004) 3 SCC 376)
30. `Animus possidendi' is one of the ingredients of
adverse possession. Unless the person possessing
the land has a requisite animus the period for
prescription does not commence. As in the instant
case, the appellant categorically states that his
possession is not adverse as that of true owner, the
logical corollary is that he did not have the
RSA 261/2014 Page 28 of 40
requisite animus. (See Md. Mohammad Ali
v. Jagdish Kalita and Ors., (2004)1 SCC 271)"
22. This principle has been reiterated later in the case of M.
Durai v. Muthu, (2007)3SCC114 . This Court observed as
under:
"7... ... ... In terms of Articles 142 and 144 of the
old Limitation Act, the plaintiff was bound to prove
his title as also possession within twelve years
preceding the date of institution of the suit under
the Limitation Act, 1963, once the plaintiff proves
his title, the burden shifts to the defendant to
establish that he has perfected his title by adverse
possession."
23. This Court had an occasion to examine the concept of
adverse possession in T. Anjanappa v. Somalingappa, (2006) 7
SCC 570 . The court observed that a person who bases his title
on adverse possession must show by clear and unequivocal
evidence that his title was hostile to the real owner and
amounted to denial of his title to the property claimed. The
court further observed that:
"20 ... ... ... the classical requirements of
acquisition of title by adverse possession are that
such possession in denial of the true owner's title
must be peaceful, open and continuous. The
possession must be open and hostile enough to be
capable of being known by the parties interested in
the property, though it is not necessary that there
should be evidence of the adverse possessor
actually informing the real owner of the former's
hostile action."
24. In a relatively recent case in P.T. Munichikkanna Reddy
v. Revamma, (2007) 6 SCC 59, this Court again had an
occasion to deal with the concept of adverse possession in
detail. The court also examined the legal position in various
countries particularly in English and American system. We
RSA 261/2014 Page 29 of 40
deem it appropriate to reproduce relevant passages in extenso.
The court dealing with adverse possession in paras 5 and 6
observed as under:
"5. Adverse possession in one sense is based on
the theory or presumption that the owner has
abandoned the property to the adverse possessor
on the acquiescence of the owner to the hostile
acts and claims of the person in possession. It
follows that sound qualities of a typical adverse
possession lie in it being open, continuous and
hostile. [See Downing v. Bird 100 So. 2d 57 (Fla.
1958);Arkansas Commemorative
Commission v. City of Little Rock 227 Ark. 1085 :
303 S.W.2d 569 (1957); Monnot v. Murphy 207
N.Y. 240, 100 N.E. 742 (1913); City of Rock
Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97
A.L.R. 1 (1929).
6. Efficacy of adverse possession law in most
jurisdictions depend on strong limitation statutes
by operation of which right to access the court
expires through efflux of time. As against rights of
the paper-owner, in the context of adverse
possession, there evolves a set of competing rights
in favour of the adverse possessor who has, for a
long period of time, cared for the land, developed
it, as against the owner of the property who has
ignored the property. Modern statutes of limitation
operate, as a rule, not only to cut off one's right to
bring an action for the recovery of property that
has been in the adverse possession of another for a
specified time, but also to vest the possessor with
title. The intention of such statutes is not to punish
one who neglects to assert rights, but to protect
those who have maintained the possession of
property for the time specified by the statute under
claim of right or color of title. (See American
Jurisprudence, Vol. 3, 2d, Page 81). It is important
RSA 261/2014 Page 30 of 40
to keep in mind while studying the American
notion of Adverse Possession, especially in the
backdrop of Limitation Statutes, that the intention
to dispossess cannot be given a complete go by.
Simple application of Limitation shall not be
enough by itself for the success of an adverse
possession claim."
25. There is another aspect of the matter, which needs to be
carefully comprehended. According to Revamma's case, the
right of property is now considered to be not only a
constitutional or statutory right but also a human right. In the
said case, this Court observed that:
"43. Human rights have been historically
considered in the realm of individual rights such
as, right to health, right to livelihood, right to
shelter and employment, etc. but now human rights
are gaining a multifaceted dimension. Right to
property is also considered very much a part of the
new dimension. Therefore, even claim of adverse
possession has to be read in that context. The
activist approach of the English Courts is quite
visible from the judgments of Beaulane Properties
Ltd. v. Palmer (2005) 3 WLR 554 and JA Pye
(Oxford) Ltd. v. United Kingdom (2005) 49 ERG
90. The Court herein tried to read the human
rights position in the context of adverse
possession. But what is commendable is that the
dimensions of human rights have widened so much
that now property dispute issues are also being
raised within the contours of human rights."
26. With the expanding jurisprudence of the European Court of
Human Rights, the Court has taken an unkind view to the
concept of adverse possession in the recent judgment of JA Pye
(Oxford) Ltd. v. United Kingdom which concerned the loss of
ownership of land by virtue of adverse possession. In the said
case, "the applicant company was the registered owner of a
RSA 261/2014 Page 31 of 40
plot of 23 hectares of agricultural land. The owners of a
property adjacent to the land, Mr. and Mrs. Graham ("the
Grahams") occupied the land under a grazing agreement. After
a brief exchange of documents in December 1983 a chartered
surveyor acting for the applicants wrote to the Grahams noting
that the grazing agreement was about to expire and requiring
them to vacate the land." The Grahams continued to use the
whole of the disputed land for farming without the permission
of the applicants from September 1998 till 1999. In 1997, Mr.
Graham moved the Local Land Registry against the applicant
on the ground that he had obtained title by adverse possession.
The Grahams challenged the applicant company's claims under
the Limitation Act, 1980 ("the 1980 Act") which provides that a
person cannot bring an action to recover any land after the
expiration of 12 years of adverse possession by another.
27. The judgment was pronounced in favour of JA Pye (Oxford)
Ltd. v. Graham 2000 Ch. 676 : (2000) 3 WLR 242. The Court
held in favour of the Grahams but went on to observe the irony
in law of adverse possession. The Court observed that the law
which provides to oust an owner on the basis of inaction of 12
years is "illogical and disproportionate". The effect of such law
would "seem draconian to the owner" and "a windfall for the
squatter". The court expressed its astonishment on the
prevalent law ousting an owner for not taking action within
limitation is illogical. The applicant company aggrieved by the
said judgment filed an appeal and the Court of Appeal reversed
the High Court decision. The Grahams then appealed to the
House of Lords, which, allowed their appeal and restored the
order of the High Court.
28. The House of Lords in JA Pye (Oxford)
Ltd. v. Graham (2003) 1 AC 419 observed that the Grahams
had possession of the land in the ordinary sense of the word,
and, therefore, the applicant company had been dispossessed of
it within the meaning of the Limitation Act of 1980.
29. We deem it proper to reproduce the relevant portion of the
judgment in Revamma's case:
RSA 261/2014 Page 32 of 40
"51. Thereafter the applicants moved the
European Commission of Human Rights (ECHR)
alleging that the United Kingdom law on adverse
possession, by which they lost land to a neighbour,
operated in violation of Article 1 of Protocol 1 to
the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention").
52. It was contended by the applicants that they
had been deprived of their land by the operation of
the domestic law on adverse possession which is in
contravention with Article 1 of Protocol 1 to the
Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention"),
which reads as under:
'Every natural or legal person is
entitled to the peaceful enjoyment of
his possessions. No one shall be
deprived of his possessions except in
the public interest and subject to the
conditions provided for by law and by
the general principles of international
law.
The preceding provisions shall not,
however, in any way impair the right
of a State to enforce such laws as it
deems necessary to control the use of
property in accordance with the
general interest or to secure the
payment of taxes or other
contributions or penalties.'"
This Court in Revamma's case also mentioned that the
European Council of Human Rights importantly laid down
three-pronged test to judge the interference of the Government
with the right of "peaceful enjoyment of property.
"53. [In] Beyeler v. Italy [GC] No. 33202 of 1996
RSA 261/2014 Page 33 of 40
108-14 ECHR 2000-I, it was held that the
"interference" should comply with the principle of
lawfulness and pursue a legitimate aim (public
interest) by means reasonably proportionate to the
aim sought to be realised."
The Court observed:
"54. ... 'The question nevertheless remains
whether, even having regard to the lack of care
and inadvertence on the part of the applicants and
their advisers, the deprivation of their title to the
registered land and the transfer of beneficial
ownership to those in unauthorised possession
struck a fair balance with any legitimate public
interest served.
In these circumstances, the Court concludes that
the application of the provisions of the 1925 and
1980 Acts to deprive the applicant companies of
their title to the registered land imposed on them
an individual and excessive burden and upset the
fair balance between the demands of the public
interest on the one hand and the applicants' right
to the peaceful enjoyment of their possessions on
the other.
There has therefore been a violation of Article 1 of
Protocol 1.'
55. The question of the application of
Article 41 was referred for the Grand Chamber
Hearing of the ECHR. This case sets the field of
adverse possession and its interface with the right
to peaceful enjoyment in all its complexity.
56. Therefore it will have to be kept in mind the
courts around the world are taking an unkind view
towards statutes of limitation overriding property
rights."
RSA 261/2014 Page 34 of 40
(Emphasis supplied)
32. Reliance placed by the appellant on Lalit Mohan Ghosh (supra) and
M/s Dr Ambedkar Education Society (supra) is wholly misplaced. Lalit
Mohan Ghosh (supra) was a case where the Korfa tenant had remained in
continuous possession of the suit property for more than 12 years after the
expiry of the lease. The Court relied upon Section 48 C of the Bengal
Tenancy Act to hold that the tenant had acquired a non-ejectable right in the
suit lands. The long period for which the tenant remained in uninterrupted
possession without any action by the landlord was only taken as a
circumstance to infer that the landlord has assented to the continuation of the
tenant's occupation. This decision does not say that where a landlord does
not initiate action to evict a tenant after the expiry of the lease, the tenant
acquires the right by adverse possession on expiry of 12 years of the lease.
It also does not say that mere continuous possession of the tenant, after
termination/ expiry of the lease is hostile or adverse to the landlord/ owner.
This judgment, even otherwise, does not apply in the facts of the present
case, as already noticed above.
33. The decision in M/s Dr Ambedkar Education Society (supra) was a
decision rendered on its own facts. In that case, after the termination of the
lease, the tenant had made constructions in the suit property after obtaining
necessary permissions from the Municipal Corporation. The landlord had
neither claimed rent for that period, nor objected to the construction made by
the tenant and had allowed the period of 12 years to expire. In these
circumstances, the Court concluded that the tenant had openly acted to
challenge the title of the landlord and asserted his claim of ownership, and
RSA 261/2014 Page 35 of 40
hence, his possession was hostile to the landlord. The same is not true in the
present case, as noticed above. The appellant, for the first time, set up a
hostile title only in the year 1973 by filing a declaratory suit, which too, was
withdrawn. The suit of the plaintiff was filed well within the period of
limitation in 1981 from the time when the appellant filed the suit in 1973.
The submission that late Sh. Ram Narain, or thereafter the appellants, did
not make payment of rent after the passing of the decree for ejectment on
26.03.1957, and thus, it leads to the inference that the occupation of the late
Sh. Ram Narain, or thereafter of appellants, was hostile to the landlord, has
no merit. Mere non-payment of rent does not tantamount to hostile
possession vis-à-vis the landlord. As noticed above, the suit was filed
within the period of limitation even from the time when the plaintiff, for the
first time, claimed the defendants/ appellants to be trespassers on
06.11.1970.
34. Reliance placed by the appellants on the judgment of this Court in
Ram Singh (supra) is also of no avail. The issue considered by the Court in
that case was whether the heirs of a deceased tenant, whose tenancy is
protected under the Delhi and Ajmer Rent Control Act and against whom a
decree for eviction has been passed, inherited any right in the tenancy.
While dealing with the said issue and concluding that such heirs did not
inherit the rights of a tenant, for the purpose of distinguishing the status of
occupation of such heirs from that of a tenant, the Court used the expression
that "they may be called trespassers". The learned Single Judge in
paragraph 8 of the said judgment held as follows:
RSA 261/2014 Page 36 of 40
"8. ... ... ... Thus it must be held that after determination of
tenancy by the passing of a decree or order for eviction, the
right of the tenants to remain in possession thereafter is
personal to him, and not heritable by his heirs and legal
representatives. Such right will devolve upon the heritable in
the manner provided by the statute. In other words, the heirs
and legal representatives of the statutory tenant remain in
occupation of the tenancy premises without any right, title or
interest and they may be called trespassers, unless the statute
confers any right upon such heirs and legal representatives."
35. The use of the expression 'trespassers' qua the heirs of the deceased
tenant does not mean that their occupation is considered hostile to the
landlord/ owner. In the light of the aforesaid discussion, it is clear that the
said heirs are merely tenants at will or tenants at severance. The aforesaid
observation made by this Court in Ram Singh (supra) is not premised on
examination of the well-settled ingredients of hostile possession. Thus, the
mere use of the expression "they may be called trespassers" does not
change the nature of occupation of the heirs of the tenant.
36. Reliance placed on the observations made by the learned ADJ in the
judgment dated 20.05.1987 is also misplaced inasmuch, as, the learned ADJ
did not conclude that the possession of the appellants was hostile and
adverse to the plaintiff.
37. There is no basis whatsoever for the appellants to claim that upon the
passing of the decree for possession in favour of late Chaudhary Kheman
Ram in the year 1957, the possession of late Sh. Ram Narain became
adverse. His possession was juridical since he had come in possession as a
tenant of the plot belonging to late Chaudhary Kheman Ram and thereafter
raised construction thereon. He was not a trespasser. He was merely
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holding over possession and resisting his dispossession by objecting to the
execution of the decree on one or the other ground. Since the decree was
not clear with regard to removal of the super structure, on technical issue,
the execution proceedings were adjourned sine die. The learned First
Appellate Court has rightly observed that the said execution proceedings,
technically speaking, were never disposed of. Even if it were to be assumed
- though it cannot be assumed as such an assumption would be contrary to
the fact - that the decree obtained by late Chaudhary Kheman Ram was not
executed within the period of limitation, i.e. 12 years, all that the same
would entail would be a bar to execution of the said decree. It would not
ripen the status of a tenant holding over, or a tenant at sufferance into that of
an owner by adverse possession. When a tenant resists his disposition after
termination of his tenancy or even after the decree for ejectment has been
passed against him, he cannot be said to have openly declared his possession
has hostile to that of the plaintiff/ landlord. Merely by resisting
dispossession, he does not convey his intention of setting up a title adverse
to that of the owner/ landlord. For his possession to become adverse, it is
essential that he should openly declare and claim his own title as the owner
of the tenanted premises, negating the right of ownership of the landlord.
The ownership right over a corporeal property consists of a bundle of rights.
Right to possession is only one of them. When a landlord transfers the right
to possession in favour of a tenant, he still retains the title to the property as
an owner. It is that right to title as an owner of the landlord which a tenant
must clearly and emphatically deny and claim in himself be said right over
the tenanted property - not merely on account of his possession, but also by
asserting a legal title to claim that he is in adverse possession of the tenanted
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premises. His clear intention to deny legal ownership of the landlord should
manifest itself by acts, such as, by openly putting the owner to notice of
such claim of ownership, or by such other overt act which would put the
owner to notice that the tenant is claiming the ownership over the property.
Unless that is done, there is no question of a tenant setting up a plea of
adverse possession qua the landlord/ owner. In the facts of the present case
the aforesaid overt claim of title from the side of the appellants came only in
the year 1973 when the suit for declaration was filed by appellant No.1/
defendant No.1. The present suit was filed, undisputedly, on 13.03.1981,
i.e. well within the period of 12 years as prescribed by Article 65 to the
Schedule of the Limitation Act.
38. The submission of learned counsel for the appellants that the cross-
objections of the appellants were not considered, is not correct. A perusal of
the impugned judgment itself shows that the primary submission of the
appellants with regard to the suit being barred by limitation has been
exhaustively considered.
39. The only other issue sought to be raised by the appellants with regard
to the locus standi of the respondent was really a non-issue, since it is not
even disputed by the appellants that the respondent is the son and Legal Heir
of late Chaudhary Kheman Ram, and therefore, succeeded to the property in
question. It is not the appellants' case that late Chaudhary Kheman Ram
interfered with the normal course of succession and divested the respondent/
plaintiff of any right in the suit property. It was not the appellants case that
any other person had claimed and established his right as the legal heir of
late Chaudhary Kheman Ram. In the absence of any such plea, the issue of
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locus standi sought to be raised by the respondents was really a non-issue.
40. In view of the aforesaid discussion, the present second appeal is
dismissed with costs in favour of the respondent which are quantified at
Rs.30,000/-.
VIPIN SANGHI, J.
DECEMBER 08, 2015 B.S. Rohella RSA 261/2014 Page 40 of 40