REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. _________OF 2009

[Arising out of Special Leave Petition (Civil) No. 10194 of 2007]

BISWANATH AGARWALLA … APPELLANT

Versus

SABITRI BERA & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO. _________OF 2009

[Arising out of Special Leave Petition (Civil) No. 15058 of 2007]

BISHWANATH AGARWALLA … APPELLANT

Versus

SABITRI BERA & ORS. … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.Whether a Civil Court can pass a decree on the ground that the

defendant is a trespasser in a simple suit for eviction is the question involved

in this appeal.

It arises out of a judgment and order dated 17

th

August, 2006 passed

by a learned single judge of the Calcutta High Court in C.O.A. No. 253 of

2006 in RVW No. 2671 of 1996.

3.The suit premises is a shop situate in a small town commonly known

as Raghunathpur in the district of Purulia. Appellant herein is said to have

entered into possession of the suit premises in the year 1970. Originally, he

claimed to have come into possession in the said premises pursuant to or in

furtherance of an agreement for sale entered into on or about 18

th

March,

1970 by and between him and S.K. Abdul Wahid Molla, the father of

Safiqur Rahaman.

The respondents purchased the suit premises from Safiqur Rahaman

on 21

st

July, 1980 by three registered deeds of sale.

4.Indisputably, the respondent No.1 filed a suit being Title Suit No.88

of 1990 in the Court of Munsif, Raghunathpur, District Purulia (West

Bengal) inter alia praying for eviction of the appellant from the suit premises

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and mesne profit claiming themselves to be the owners and landlords

thereof.

He prior to institution of the suit also served a notice upon the

appellant in terms of Section 106 of the Transfer of Property Act asking him

to handover peaceful and vacant possession alleging that he had been a

tenant therein on a monthly rental of Rs.45/- under his vendor Safiqur

Rahaman.

5.Appellant denied and disputed that he had ever been a tenant of

Safiqur Rahaman at any point of time. The relationship between them was,

thus, denied and disputed.

6.The learned trial judge having regard to the rival pleadings of the

parties framed the following issues:

“1)Have the plaintiffs any cause of action to bring this suit?

2)Is the suit maintainable in its present form?

3)Is the suit barred by law of limitation?

4)Is the suit barred by provisions of the S.R. Act?

5)Is the suit barred by the principle of waiver, estoppel and

acquiescence?

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6)Have the plaintiffs landlord and tenant relationship with

the defendant?

7)Have the plaintiffs served valid notice u/s 106 of the T.P.

Act?

8)Have the plaintiffs right, title and interest in the suit

property?

9)Are the plaintiffs entitled to get the decree as prayed for?

10)To what other reliefs, if any are the plaintiffs entitled?

The learned trial judge opined:

i.The plaintiffs have proved to be the owner of the suit property

having purchased the same from the admitted owner S.K. Abdul Wahid

Molla;

ii.The defendant has failed to prove his independent title over the

suit property.

iii.The plaintiffs have failed to prove the relationship of landlord

and tenant in between the plaintiffs and the defendant

iv.The plaintiffs having failed to prove the tenancy are not entitled

to a decree.

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7.The respondent No.1 preferred an appeal thereagainst marked as Title

Appeal No. 20/1993. By a judgment and order dated 31

st

May, 1995, the

learned Appellate Court held that although the plaintiffs have failed to prove

the relationship of landlord and tenant by and between them and the

defendant or that the defendant had been let into the tenanted premises on

leave and license basis, the plaintiffs - respondents are entitled to a decree

for possession on the basis of his general title.

8. The learned First Appellate Court also rejected the appellant’s

contention that he has acquired title by adverse possession.

It was held:

“It is needless to mention the learned Munsif of the

court below in the body of the judgment, at the

time of discussion (page 20 begins) issue nos. 6

and 8 on being satisfied by the plaintiffs chain of

documents of their title over the suit premises and

in such a position, the plaintiffs were entitled to get

the decree for recovery of possession as owner of

the suit premises and in this regard decision so

referred by the learned lawyer of the appellants as

reported in AIR 1984 ROC 78 Allahabad page A

35, and other decision so reported in AIR 1984

Allahabad page 66 completely on the flat point of

the suit in favour of the plaintiffs and where it has

been clearly stated in a suit for eviction by the

plaintiffs against the defendant under the relevant

provision of Transfer of Property Act where title of

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the plaintiffs over the suit property being proved

and the relationship of landlord and tenant not

proved, in spite of the same, the plaintiffs or

proving the landlords title are entitled to get

recovery of possession of the suit premises from

the defendant as owner thereof and what in fact,

happened in the given facts and circumstances, out

of which this appeal arose.

xxx xxx xxx

For the discussion made above and on the

existing materials on the case record and when the

plaintiffs proved their title and ownership over the

suit premises by virtue of Ext. 4 series and on the

other hand the defendant as per their written

statement failed and neglected to discharge his

onus on proving his right or permanency in the suit

premises as tenant or otherwise, the plaintiffs suit

must succeed and the findings of the learned

Munsif in deciding the issue Nos. 6 and 8

particularly the contents of the issue no. 6 are not

at all satisfactory and cannot be sustained in law in

the given facts and circumstances of the case and

as such the irresistible conclusion from the above

discussion is that the judgment and decree so

passed by the Ld. Munsif is not tenable in law and

the plaintiffs are entitled to get the decree for

eviction against the defendants. As a result, the

appeal succeed in part on contest. “

9.By reason of the impugned judgment, the High Court dismissed the

Second Appeal preferred by the appellant, opining:

“I am sorry to say that such submission on the part

of the appellant cannot be accepted. A person can

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be in possessory right in various ways i.e.

licensee/tenant/permissible possession holder/

adverse possession holder/trespasser. But, the

onus heavily lies with the tenant to prove in what

capacity he is occupying the premises as the

landlord is not in a position to claim any recovery

of the possession as against him since there is no

landlord and tenant relationship. In the instant

case, the schedule land under the deed of gift and

so-called agreement for sale are different. So far

as the execution of Deed of gift is concerned, it has

been sufficiently proved. So far as payment of rent

is concerned, that has been stated in the cross-

examination. The only failure is about the non-

disclosure of the rent receipt. But, simply such

statement will not develop the case of adverse

possessory right of the tenant, which he has

claimed now before the second appellate court.

Therefore, when he is not claiming to be a tenant

at best, he can claim as a licensee of the premises

in question whereunder the title of the landlord has

already been proved by virtue of the document.

Therefore, such licensee is estopped from

questioning the title of the landlord as per Section

116 of the Indian Evidence Act, 1872. Tenancy is

not proved, therefore, he is not a tenant. He is not

claiming to be the licensee although he could have,

therefore, I cannot compel him to be licensee. The

remaining, if any, is permissive occupation, which

is as good as license. However, it is well settled

that the permissible occupation cannot be regarded

as adverse possessory right. Adverse possession is

not proved. Therefore, the remaining capacity, if

any, is trespasser. It is far to say that a trespasser

can challenge the title of the landlord. Under such

situation the presumption, which has been drawn

by the lower appellate court is an appropriate

presumption on that score.”

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10.A review application filed thereagainst by the appellant has also been

dismissed by the High court.

Both the aforementioned orders are in question before us.

11.Mr.V. Prabhakar, learned counsel appearing on behalf of the appellant

would contend:

i.No substantial questions of law having been formulated by the

High Court, a jurisdictional error has been committed by it in

passing the impugned judgment.

ii.The relationship of landlord and tenant and/or the licensor and

licensee having not been proved, the High Court as also the

First Appellate Court committed a serious error in passing the

impugned judgment on the premise that the appellant was a

trespasser.

12.Mr. R.K. Gupta, learned counsel appearing on behalf of the

respondents, on the other hand, would support the impugned judgment,

contending:

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i.Even in a suit for eviction, the plaintiffs would be entitled to

obtain a decree for possession relying on or on the basis of his

title.

ii.In a suit for eviction, it is for the defendant to show that he has

a right to remain on the tenanted premises either as a permanent

tenant or otherwise.

13.The plaintiffs served a notice on the defendant under Section 106 of

the Transfer of Property Act. Such notice evidently was served on the

premise that the defendant – appellant was his tenant. He denied and

disputed the same. The plaintiff in his plaint disclosed the cause of action

for the suit having arisen on and from 1

st

October, 1990 from which date the

monthly tenancy had ceased to exist. The plaintiff prayed for grant of mesne

profits at the rate of Rs.3/- for each day for wrongful occupation of the

premise as after the termination of tenancy the defendant was to be treated as

a trespasser.

14.Paragraph 10 of the plaint reads as under:

“10.That for the purpose of jurisdiction and

court fee the value of this suit for prayer (A) is laid

at Rs. (sic) For eviction a tentative court fee of

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Rs.100/- is paid for future mesne profits to a

decree.”

How much court fee was paid and on what basis has not been

disclosed.

The reliefs prayed for by the plaintiffs are:

“a)A decree for eviction of the defendant from

the schedule premises, be passed against the

defendants.

b)A decree for mesne profits in case eviction

is allowed, at the rate of Rs.3/- per day from (sic)

be passed against the defendants as scheduled in

schedule-II and III below and for future mesne

profits uptil delivery of possession of suit property

at the rate the court is pleased to order for which

tentative court fee is paid at present.”

15.It is not clear what amount of court fee was paid. Presumably, the

court fee was paid of one year’s rent that is calculated on the basis of twelve

months’ rent at the rate of Rs.45/- in terms of Section 7(xi)(cc) of the Court

Fees’ Act, 1870.

Section 4 of the Court Fees’ Act, 1870 reads as under:

10

“4. Fees on documents filed, etc., in High

Courts in their extraordinary jurisdiction;- No

document of any of the kinds specified in the First

or Second Schedule to this Act annexed, as

chargeable with fees, shall be filed, exhibited or

recorded in, or shall be received or furnished by,

any of the said High Courts in any case coming

before such Court in the exercise of its

extraordinary original civil jurisdiction; or in the

exercise of its extraordinary original criminal

jurisdiction;

in their appellate jurisdiction; - or in the

exercise of its jurisdiction as regards appeals from

the judgments (other than judgments passed in the

exercise of the ordinary original civil jurisdiction

of the Court) of one or more Judges of the said

Court, or of a division Court;

or in the exercise of its jurisdiction as

regards appeals from the Courts subject to its

superintendence;

as Courts of reference and revision. – or in

the exercise of its jurisdiction as a Court of

reference or revision’

unless in respect of such document there be

paid a fee of an amount not less than that indicated

by either of the said Schedules as the proper fee for

such document.”

For obtaining a decree for recovery of possession, court fees are

required to be paid in terms of Section 7(v) of the Court Fees’ Act, 1870 i.e.,

according to the value of the subject matter of the suit.

11

16.We will have to proceed on the basis that whereas the plaintiff proved

his title, the defendant could not. The learned trial judge has held that the

defendant could not prove the agreement of sale.

The High Court formulated the following points in the form of

question which are as under:

“6.Have the plaintiffs landlord and tenant relationship with

the defendant?

7.Have the plaintiffs served valid notice u/s 106 of the T.P.

Act.”

17.Was, in the aforementioned situation, a suit for recovery of possession

maintainable is the question.

The landlord in a given case although may not be able to prove the

relationship of landlord and tenant, but in the event he proves his general

title, may obtain a decree on the basis thereof. But in a case of this nature, a

defendant was entitled to raise a contention that he had acquired an

indefeasible title by adverse possession.

In Radha Devi and Ors. v. Ajay Kumar Sinha [1998 (2) BLJR 1061],

the Patna High Court accepted that a landlord is entitled to obtain a decree of

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eviction on the basis of his general title, though he could not prove the

relationship of landlord and tenant. It was opined:

“…In other words, where there is relationship of

landlord and tenant, order of eviction be passed on

the existence of any one of the grounds mentioned

in Section 11 of the said Act. It is, therefore, clear

that proof of relationship of landlord and tenant

gives right to a landlord to get an order of eviction

under the provisions of the aforesaid Act…”

In Champa Lal Sharma v. Smt. Sunita Maitra [(1990) 1 BLJR 268], it

was held:

“It is also well settled that one such

relationship is admitted or established,

tenant would be estopped and precluded

from challenging the title of the landlord and

if he does so, under the general rule, make

himself liable for eviction on that ground.

It, therefore, logically follows that a finding

of existence of relationship of landlord and

tenant is a sine qua non for passing a decree

for eviction against a tenant except in a case,

as mentioned hereinbefore the plaintiff on

payment of ad valorem Court fee may obtain

a decree for eviction on the basis of his

general title.

*** *** ***

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It is, therefore, evident that the court has to

ultimately decide the question as to whether

the plaintiff in case his title is in dispute,

would be entitled to withdraw the rent so

deposited by the tenant or not. It, therefore,

makes the position, in my opinion,

absolutely clear that before the said question

is decided finally so as to enable the court to

come to a decision whether the plaintiff

landlord is entitled to a decree for eviction

or not must come to the finding that there

exists a relationship of landlord and tenant

by and between the plaintiff and the

defendant, if such an issue is raised. In

absence of any such finding the court will

have no jurisdiction to pass a decree of

evidence as against the defendant in such a

suit.”

[See also Deepak Kumar Verma and Ors. v. Ram Swarup Singh 1992

(1) BLJR 102]

A defendant as is well known may raise inconsistent pleas so long

they are not mutually destructive.

In Gautam Sarup v. Leela Jetly and Ors. [(2008) 7 SCC 85], this Court

held:

“22. What, therefore, emerges from the discussions

made hereinbefore is that a categorical admission

cannot be resiled from but, in a given case, it may

14

be explained or clarified. Offering explanation in

regard to an admission or explaining away the

same, however, would depend upon the nature and

character thereof. It may be that a defendant is

entitled to take an alternative plea. Such alternative

pleas, however, cannot be mutually destructive of

each other.”

An issue as to whether the defendant was a trespasser or not, thus, was

required to be framed.

18.Mr. Gupta, however, would rely upon a decision of this Court in

Bhagwati Prasad v. Shri Chandramaul [(1966) 2 SCR 286].

Gajendragadkar, C.J. therein was dealing with the rules of pleadings. It was

opined that although the rules of pleadings should be adhered to; when

parties go to the trial knowing fully well the points he is required to meet,

the Court may not insist on the strict application thereof, stating:

“ When Mr. Setalvad was pressing his point

about the prejudice to the defendant and the

impropriety of the course adopted by the High

Court in confirming the decree for ejectment on

the ground of licence, we asked him whether he

could suggest to us any other possible plea which

the defendant could have taken if a licence was

expressly pleaded by the plaintiff in the alternative.

The only answer which Mr. Setalvad made was

that in the absence of definite instructions, it would

not be possible for him to suggest any such plea. In

15

our opinion, having regard to the pleas taken by

the defendant in his written statement in clear and

unambiguous language, only two issues could arise

between the parties : is the defendant the tenant of

the plaintiff, or is he holding the property as the

licence subject to the terms specified by the written

statement? In effect, the written statement pleaded

licence, subject to the condition that the licence

was to remain in possession until the amount spent

by him was returned by the plaintiff. This latter

plea has been rejected, while the admission about

the permissive character of the defendant's

possession remains. That is how the High Court

has looked at the matter and we are unable to see

any error of law in the approach by the High Court

in dealing with it.

In support of its conclusion that in a case

like the present a decree for ejectment can be

passed in favour of the plaintiff, though the

specific case of tenancy set up by him is not

proved, the High Court has relied upon the two of

its earlier Full Bench decisions. In Abdul Ghani v.

Musammat Babni I.L.R. 25 All. 256 the Allahabad

High Court took the view that in a case where the

plaintiff asks for the ejectment of the defendant on

the ground that the defendant is a tenant of the

premises, a decree for ejectment can be passed

even though tenancy is not proved, provided it is

established that the possession of the defendant is

that of a licensee. It is true that in that case, before

giving effect to the finding that the defendant was

a licensee, the High Court remanded the case,

because it appeared to the High Court that that part

of the case had not been clearly decided. But once

the finding was returned that the defendant was in

possession as a licensee, the High Court did not

feel any difficulty in confirming the decree for

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ejectment, even though the plaintiff had originally

claimed ejectment on the ground of tenancy and

not specifically on the ground of licence. To the

same effect is the decision of the Allahabad High

Court in the case of Balmakund v. Dalu I.L.R. 25

All. 498”

(Emphasis supplied).

The said decision itself is an authority for the proposition that it was

necessary to bring on record some evidence that the defendant was a

licensee and he could not have raised any other alternative plea. It was

followed by a learned Single Judge of the Allahabad High Court in Shri

Ram & Anr. vs. Smt. Kasturi Devi & Anr. [AIR 1984 Allahabad 66],

stating:

“15. Lastly, it was argued for the appellants that

there is no relationship of landlord and tenant as

between Smt. Kastoori Devi on the one hand and

Sri Ram or Satya Pal. on the other. The trial court

was of the view that no such relationship has been

made out. This finding was, however, reversed by

the lower appellate court and not without cogent

basis. Sri Ram admits that one Desh Rai was the

tenant in this part of the house who vacated. Sri

Ram thereafter came in the said portion of the

house. In cross-examination, he admitted also that

it was agreed between him and Smt Kastoori Devi

what would be treated as the rent for the said

portion. Further the case of the appellants is that on

January 20. 1970, Sri Ram got this portion allotted

17

in his name. All these are pointers in the direction

that there was relationship of landlord and tenant

and not that Sri Ram has been residing in that

portion of the house as licencee of Smt. Kastoori

Devi. This apart the suit for eviction brought by

Smt. Kastoori Devi against them does not fail even

if it is assumed that there was no relationship of

landlord or of tenant or that Sri Ram was in the

position of a mere licensee. The licence has been

determined by registered notice given by Smt.

Kastoori Devi already. In the plaint. Smt. Kastoori

Devi referred expressly to her title to the house by

virtue of the will executed in her favour by the

husband. The law is settled that even if Sri Ram

was the licensee, Smt. Kastoori Devi can, on the

basis of title claim eviction even though she has set

up the case that there was the relationship of the

landlord and tenant and assumed that the same is

not established, vide Bhagwati Pd. v. Chandramaul

AIR 1966 SC 735. Abdul Ghani v. Mst. Babni

(1903) ILR 25 All 256 (FB) Bal Mukund v. Dalu

(1903) ILR 25 All 498 (FB).”

(Emphasis supplied)

19.Mr. Gupta would further rely upon a decision of the Calcutta High

Court in Hajee Golam Hossain Ostagar vs. Sheik Abu Bakkar [AIR 1936

Calcutta 351] to contend that the defendant in a suit for ejectment was bound

to show that he had a right to remain on a land permanently wherefor the

onus would be on him. That case related to a agricultural tenancy. A simple

tenancy can be terminated by service of notice under Section 106 of the

18

Transfer of Property Act. Once a valid notice is served, the tenant becomes

trespasser.

The situation, however, has undergone a sea change after almost all

the States have enacted the premises tenancy Acts governing the conditions

of tenancy in respect of house premises. The State of West Bengal has also

enacted the West Bengal Premises Tenancy Act, 1956.

In terms of the 1956 Act, the tenant upon termination of tenancy does

not become a trespasser. He becomes a statutory tenant (loosely called).

When, however, a defendant is a trespasser and is sued as such, the

situation would be totally different. Plaintiff must file a suit having regard

to the cause of action thereof. The Court, in a given case, mould the relief

having regard to the provisions of Order VII Rule 7 of the Code of Civil

Procedure, but the said provision cannot be applied in a situation of this

nature.

20.We, therefore, are of the opinion that it is not a case where by non

framing of an issue as to whether the defendant – appellant was a trespasser

or not he was not prejudiced. Had such an issue been framed he could have

brought on record evidence to establish that he had the requisite animus

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possidendi, particularly in view of the fact that it has been held by the courts

below that he was not put in possession by the predecessor-in-interest of the

plaintiffs in terms of an agreement for sale or otherwise. If he has not been

able to prove the agreement, he could have taken the other plea, i.e., he has

acquired indefeasible title by adverse possession. He is said to have been in

possession of the suit premises for more than twelve years prior to the

institution of the suit. The question as to whether he acquired title by

adverse possession was a plausible plea. He, in fact, raised the same before

the appellate court.

21.Submission before the First Appellate Court by the defendant that he

had acquired title by adverse possession was merely argumentative in nature

as neither there was a pleading nor there was an issue. The learned trial

court had no occasion to go into the said question.

22.We, therefore, are of the opinion that in a case of this nature an issue

was required to be framed. Furthermore, the High Court while determining

the issues involved in the Second Appeal should have formulated questions

of law.

20

In Dharam Singh vs. Karnail Singh & Ors. [(2008) 9 SCC 759], this

Court held:

“6.In response, learned Counsel for the

respondents submitted that on considering the

memorandum of appeal and the grounds indicated

therein, the High Court had allowed the second

appeal and, therefore, there was nothing wrong. It

is stated that after considering the materials on

record, the High Court had recorded its findings

that the suit deserves to be dismissed.

xxx xxx xxx

9.A perusal of the impugned judgment passed

by the High Court does not show that any

substantial question of law has been formulated or

that the second appeal was heard on the question,

if any, so formulated. That being so, the judgment

cannot be maintained.

xxx xxx xxx

15.Under the circumstances, the impugned

judgment is set aside, we remit the matter to the

High Court so far as it relates to Second Appeal

No. 285 of 2000 for disposal in accordance with

law. The appeal is disposed of on the aforesaid

terms with no order as to costs.”

{See also Koppisetty Venkat Ratnam (D) through LRs. v. Pamarti

Venkayamma [(2009) 4 SCC 244]}

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23.However, we are of the opinion that keeping in view the peculiar facts

and circumstances of this case and as the plaintiffs have filed the suit as far

back in the year 1990, the interests of justice should be subserved if we in

exercise of our jurisdiction under Article 142 of the Constitution of India

issue the following directions with a view to do complete justice to the

parties.

i.The plaintiffs may file an application for grant of leave to

amend his plaint so as to enable him to pray for a decree for

eviction of the defendant on the ground that he is a trespasser.

ii.For the aforementioned purpose, he shall pay the requisite court

fee in terms of the provisions of the Court Fees Act.

iii.Such an application for grant of leave to amend the plaint as

also requisite amount of court fees should be tendered within

four weeks from date.

iv.The defendant – appellant would, in such an event, be entitled

to file his additional written statement.

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v.The learned trial judge shall frame an appropriate issue and the

parties would be entitled to adduce any other or further

evidence on such issue.

vi.All the evidences brought on record by the parties shall,

however, be considered by the court for the purposes of

disposal of the suit.

vii.The learned trial judge is directed to dispose of the suit as

expeditiously as possible and preferably within 3 months from

the date of filing of the application by the plaintiffs in terms of

the aforementioned direction (i).

24.The appeals are allowed with the aforementioned directions. No costs.

……………….…..………….J.

[S.B. Sinha]

..………………..……………J.

[Deepak Verma]

New Delhi;

August 4, 2009

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