Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10316 OF 2013

(Arising out of S.L.P. (C) No. 15927 of 2008)

Tribhuvanshankar … Appellant

Versus

Amrutlal …Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.This appeal, by special leave, is from the judgment and

order of the High Court of Madhya Pradesh, Bench at

Indore, in Second Appeal No. 33 of 1995 passed on

8.2.2008.

3.The appellant-plaintiff instituted Civil Suit No. 259A/86 in

the Court of Civil Judge Class-II, Mhow, District Indore, for

eviction of the respondent-defendant from the suit-

premises and for mesne profits. The case of the

Page 2 2

appellant-plaintiff was that he had purchased the suit

property vide registered sale deed dated 1.4.1976 on

payment of sale consideration of Rs.4500/- to the vendor,

one Kishanlal. The respondent-defendant was in

possession of the said suit property as a tenant under the

earlier owner Kishorilal on payment of rent of Rs.15/- per

month. It was averred in the plaint that it was an oral

tenancy and after acquiring the title the appellant

informed the respondent about the sale by the earlier

owner. Despite assurance given by the respondent to pay

the rent to him, it was not honoured which compelled the

appellant to send a notice on 14.12.1977 and, eventually,

he terminated the tenancy with effect from 31.1.1978.

The respondent, as pleaded, had replied to the notice

stating, inter alia, that the appellant was neither the

landlord nor the owner of the property. On the contrary, it

was stated in the reply that the respondent was the owner

of the premises.

4.The grounds that were urged while seeking eviction were:

(i) the defendant was in arrears of rent since 1.4.1976

Page 3 3

and same was demanded vide notice dated 14.12.1977,

which was received on 3.1.1978 and despite receiving the

notice, the defendant defaulted by not paying the rent

within two months; (ii) that the said accommodation was

bona fide required by the plaintiff for construction of his

house and the accommodation is an open land; (iii) the

said accommodation was bona fide required by the

plaintiff for general merchant shop i.e. non-residential

purpose and for the said purpose the plaintiff did not have

any alternative accommodation in his possession in Mhow

City.

5.In the written statement, the defendant disputed the right,

title and interest of the plaintiff, and denied the

relationship of landlord and tenant. That apart, a further

stand was taken that the appellant had no right under the

M.P. Accommodation Control Act, 1961 (for brevity “the

Act”) to file the suit for eviction. It was set forth by the

respondent-defendant that he was never a tenant under

Kishorilal and, in fact, the accommodation was in a

dilapidated condition and a ‘banjar’ land and the

Page 4 4

respondent was in possession for 18 to 19 years and it

was to the knowledge of Kishorilal and his elder brother.

For the purpose of business he had constructed a Gumti,

got the gate fixed and when the business relating to sale

of furniture commenced there was no objection from

Kishorilal or his brother or any family member. The

possession, as put forth by the respondent, was

uninterrupted, peaceful and to the knowledge of Kishorilal

who was the actual owner. It was also set forth that when

Kishorilal desired to sell the premises, he was put to

notice about the ownership of the defendant but he sold

the property without obtaining sale consideration with the

sole intention to obtain possession by colluding with the

appellant-plaintiff. Alternatively, it was pleaded that the

premises is situate in the Cantonment area and the

Cantonment Board has the control over the land and

neither Kishorilal nor the appellant had any title to the

same.

6.The learned trial Judge framed as many as 26 issues. The

relevant issues are, whether the suit accommodation was

Page 5 5

taken on rent by the defendant for running his wood

business in the year 1973 from the earlier landlord

Kishorilal; whether defendant is in continuous,

unobstructed and peaceful possession since 18 years

which was within the knowledge of Kishorilal, his elder

brother and their family members; whether defendant had

become owner of the suit accommodation by way of

adverse possession; and whether the sale deed had been

executed without any consideration for causing damage

to the title of defendant.

7.The learned trial Judge, on the basis of evidence brought

on record, came to hold that the sale deed executed by

Kishorilal in favour of the appellant was without any sale

consideration; that the relationship of landlord and tenant

between the parties had not been established; and that

the respondent had become the owner of the suit

accommodation on the basis of adverse possession.

Being of this view, the trial court dismissed the suit.

Page 6 6

8.Being dissatisfied with the aforesaid judgment and decree

the plaintiff preferred Civil Regular Appeal No. 5 of 1994

and the lower appellate court, reappreciating the evidence

on record and considering the submissions raised at the

bar, came to hold that the appellant- plaintiff had not

been able to prove the relationship of landlord and tenant;

that the conclusion arrived at by the learned trial Judge

that the sale-deed dated 1.4.1976 due to absence of sale

consideration was invalid, was neither justified nor

correct; and that there being no clinching evidence to

establish that the defendant had perfected his title by

adverse possession the finding recorded by the learned

trial Judge on that score was indefensible. After so

holding, the learned appellate Judge proceeded to hold

that as the plaintiff had established his title and the

defendant had miserably failed to substantiate his

assertion as regards the claim of perfection of title by way

of adverse possession, the plaintiff on the basis of his

ownership was entitled to a decree for possession. To

arrive at the said conclusion he placed reliance on Punia

Page 7 7

Pillai vs. Panai Minor through Pandiya Thevan

1

,

Bhagwati Prasad v. Chandramaul

2

and Amulya

Ratan Mukherjee and ors. V. Kali Pada Tah and ors.

3

9.Facing failure before the appellate court the defendant

preferred Second Appeal No. 33 of 1995 before the High

Court. The appeal was admitted on the following

substantial questions of law: -

“(1)Whether a decree could be passed in favour

of plaintiff though such plaintiff fails to establish

the relationship of landlord and tenant?

(2)Whether the 1

st

Appellate Court committed

the error of law in pronouncing the error of law in

pronouncing the judgment and decree on question

of title? And

(3)Whether the 1

st

Appellate Court has erred in

law in holding that the possession of the

defendant is not proved and that the defendant

has not acquired the title by adverse possession?”

10.The learned single Judge by judgment dated 8.2.2008

adverted to Sections 12(1)(a) and 12(1)(e) of the Act and

came to hold that once the plaintiff had failed to establish

the relationship of landlord and tenant which is the sine

1

AIR 1947 Madras 282

2

AIR 1966 SC 735

3

AIR 1975 Cal 200

Page 8 8

qua non in a suit for eviction, the plaintiff could not have

fallen back on his title to seek eviction of the tenant. Be it

noted, the learned single Judge placed reliance upon

Rajendra Tiwary v. Basudeo Prasad and another

4

wherein the decision in Bhagwati Prasad (supra) had

been distinguished. The learned single Judge dislodged

the judgment and decree passed by the lower appellate

court and affirmed that of the learned trial Judge.

11.We have heard Mr. A.K. Chitale, learned senior counsel

appearing for the appellant and Mr. Puneet Jain, learned

counsel appearing for the respondent.

12.Questioning the legal acceptableness of the decision of

the High Court the learned senior counsel has raised the

following contentions: -

(a)The learned single Judge has erroneously opined that a

suit cannot be decreed by civil court for possession on the

basis of general title even if the landlord-tenant

relationship is not proved. A manifest error has been

4

AIR 2002 SC 136

Page 9 9

committed by the learned Judge not following the law laid

down in Bhagwati Prasad (supra) which is applicable on

all fours to the case at hand, solely on the ground that the

said decision has been distinguished in Rajendra

Tiwary’s case.

(b)Though three substantial questions of law were framed,

yet the learned single Judge without considering all the

questionss affirmed the judgment of the trial court

wherein it had come to hold that the defendant had

established his title by adverse possession despite the

same had already been annulled on reappreciation of

evidence by the lower appellate court.

(c)Assuming a conclusion is arrived at that there should

have been a prayer for recovery of possession by paying

the requisite court fee, the appellant, who has been

fighting the litigation since decades should be allowed to

amend the plaint and on payment of requisite court fee

apposite relief should be granted.

Page 10 10

13.Countering the aforesaid submissions Mr. Puneet Jain,

learned counsel appearing for the respondent, has

proponed thus: -

(i)The analysis made by the High Court that when the

relationship between the landlord and tenant is not

proven in a suit for eviction, possession cannot be

delivered solely on the bedrock of right, title and

interest cannot be found fault with. There is a

difference between a suit for eviction based on

landlord-tenant relationship and suit for possession

based on title, and once the relationship of landlord and

tenant is not proven there cannot be a decree for

eviction.

(ii)The High Court has correctly distinguished the decision

rendered in Bhagwati Prasad (supra) in Rajendra

Tiwary (supra) as the law laid down in Bhagwati

Prasad is not applicable to the present case and

hence, the submission raised on behalf of the appellant

that once the right, title and interest is established, on

Page 11 11

the basis of general title, possession can be recovered

is unacceptable.

(iii)The alternative submission that liberty should be

granted to amend the plaint for inclusion of the relief

for recovery of possession would convert the suit from

one for eviction simpliciter to another for right, title and

interest and recovery of possession which is

impermissible. That apart, when the suit was dismissed

and the controversy travelled to appellate court the

plaintiff was aware of the whole situation but chose not

to seek the alternative relief that was available which is

presently barred by limitation. It is well settled in law

that the Court should decline to allow the prayer to

amend the plaint if a fresh suit based on the amended

claim would be barred by limitation on the date of

application.

14.At the very outset, we may straight away proceed to

state that the finding returned by the courts below that

has been concurred by the High Court to the effect that

Page 12 12

there is no relationship of landlord and tenant between

the parties is absolutely impeccable and, in fact, the

legality and propriety of the said finding has not been

assailed by the learned senior counsel for the appellant.

As far as right, title and interest is concerned, the learned

trial Judge had not believed the sale deed executed by the

vendor of the appellant-plaintiff in his favour for lack of

consideration and also returned an affirmative finding that

the defendant was in possession for long and hence, had

acquired title by prescription. The learned appellate Judge

on reappreciation of the evidence brought on record had

unsettled the findings with regard to the title of the

plaintiff as well as the acquisition of title by the defendant

by way of adverse possession. He had granted relief to

the plaintiff on the ground that in a suit for eviction when

the title was proven and assertion of adverse possession

was negatived by the court, there could be a direction for

delivery of possession. As has been stated earlier the

High Court has reversed the same by distinguishing the

Page 13 13

law laid down in Bhagwati Prasad (supra) and restored

the verdict of the learned trial Judge.

15.Keeping these broad facts in view, it is necessary to

scrutinize whether the decision in Bhagwati Prasad

which has been assiduously commended to us by Mr.

Chitale is applicable to the case. In Bhagwati Prasad

(supra) the defendant was the appellant before this Court.

The case of the plaintiff was that the defendant was in

possession of the house as the tenant of the plaintiff. The

defendant admitted that the land over which the house

stood belonged to the plaintiff. He, however, pleaded that

the house had been constructed by the defendant at his

own cost and that too at the request of the plaintiff

because the plaintiff had no funds to construct the

building on his own. Having constructed the house at his

own cost, the defendant entered into possession of the

house on condition that the defendant would continue to

occupy the same until the amount spent by him on the

construction was repaid to him by the plaintiff. In this

backdrop, the defendant resisted the claim made by the

Page 14 14

plaintiff for ejectment as well as for rent. The learned trial

Judge held that the suit was competent and came to the

conclusion that the plaintiff was entitled to a decree for

ejectment as well as for rent. The High Court agreed with

the trial court in disbelieving the defendant’s version

about the construction of the house and about the terms

and conditions on which he had been let into possession.

The High Court opined that the defendant must be

deemed to have been in possession of the house as a

licensee and accordingly opined that a decree for

ejectment should be passed. Dealing with various

contentions raised before this Court it was ruled that the

defendant could not have taken any other plea barring

that of a licensee in view of the pleadings already put

forth and the evidence already adduced. In that context,

this Court opined that the High Court had correctly relied

upon the earlier Full Bench decision in Abdul Ghani v.

Musammat Babni

5

and Balmukund v. Dalu

6

. An

opinion was expressed by this Court that once the finding

5

25 All 256

6

25 All 498

Page 15 15

was returned that the defendant was in possession as a

licensee, there was no difficulty in affirming the decree for

ejectment, even though the plaintiff had originally claimed

ejectment on the ground of tenancy and not specifically

on the ground of licence. In that context it was observed

thus: -

“15. ... In the present case, having regard to all

the facts, we are unable to hold that the High

Court erred in confirming the decree for ejectment

passes by the trial Court on the ground that the

defendant was in possession of the suit premises

as a licensee. In this case, the High Court was

obviously impressed by the thought that once the

defendant was shown to be in possession of the

suit premises as a licensee, it would be built to

require the plaintiff to file another suit against the

defendant for ejectment on that basis. We are not

prepared to hold that in adopting this approach in

the circumstances of this case, the High Court can

be said to have gone wrong in law.”

16.Before we proceed to state the ratio in Rajendra

Tiwary’s case, we think it seemly to advert to the principle

stated in Biswanath Agarwalla v. Sabitri Bera and

others

7

as the same has been strongly relied upon by the

learned senior counsel for the appellant. In the said case,

the question that was posed is whether a civil court can

7

(2009) 15 SCC 693

Page 16 16

pass a decree on the ground that the defendant is a

trespasser in a simple suit for eviction. In the said case the

learned single Judge of the Calcutta High Court, considering

the issues framed and the evidence laid, had held that

although the plaintiffs had 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 licence basis, the

respondent-plaintiffs were entitled to a decree for

possession on the basis of their general title. This Court

took note of the relief prayed, namely, a decree for eviction

of the defendant from the schedule premises and for grant

of mesne profit in case the eviction is allowed at certain

rates. The Court proceeded on the base that the plaintiff

had proved his right, title and interest. The Court observed

that the landlord in a given case, although may not be able

to prove the relationship of landlord and tenant, yet in the

event he proves the general title, may obtain a decree on

the basis thereunder. But regard being had to the nature

of the case the Court observed that the defendant was

Page 17 17

entitled to raise a contention that he had acquired

indefeasible title by adverse possession. The Court

referred to the decision in Bhagwati Prasad (supra) and,

eventually, came to hold as follows: -

“27.The question as to whether the defendant

acquired title by adverse possession was a

plausible plea. He, in fact, raised the same before

the appellate court. 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.

We, therefore, are of the opinion that in a case of

this nature an issue was required to be framed.”

Thereafter, the two-Judge Bench issued the following

directions: -

“29.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 as in the year 1990, the interest 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 their plaint so

as to enable them to pray for a decree

Page 18 18

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,

1870.

(iii)Such an application for grant of leave to

amend the plaint as also the requisite

amount of court fees should be tendered

within four weeks from date.

(iv)The appellant-defendant would, in such

an event, be entitled to file his

additional written statement.

(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 three

months from the date of filing of the

application by the plaintiffs in terms of

the aforementioned Direction (i).”

17.At this stage it is necessary to dwell upon the facet of

applicability of the said authorities to the lis of the present

nature. As per the exposition of facts, the analysis made

Page 19 19

and the principles laid down in both the cases, we notice

that the civil action was initiated under the provisions of

Transfer of Property Act, 1882. In Bhagwati Prasad’s

case the Court opined that a decree for ejectment could

be passed on general title as the defendant was a

licensee. In Biswanath Agarwalla’s case the Court

took note of the concept of general title and the plausible

plea of adverse possession and granted liberty to the

plaintiff to amend the plaint seeking a decree for recovery

of possession and pay the required court fee under the

Court-fees Act, 1870. That apart, certain other directions

were issued. We may repeat at the cost of repetition that

the suits were instituted under the Transfer of Property

Act. The effect of the same and its impact on difference

of jurisdiction on a civil court in exercising power under

the Transfer of Property Act and under special enactments

relating to eviction and other proceedings instituted

between the landlord and tenant, we shall advert to the

said aspects slightly at a later stage.

Page 20 20

18.Presently, we shall analyse the principles stated in

Rajendra Tiwary (supra). In the said case the

respondent-plaintiff had filed a suit for eviction under the

Bihar Buildings (Lease, Rent and Eviction) Control Act,

1982 on many a ground. The learned trial Judge,

appreciating the evidence on record, dismissed the suit

for eviction holding that there was no relationship of

landlord and tenant between the plaintiff and the

defendant. However, he had returned a finding that the

plaintiff had title to the suit premises. The appellate court

affirmed the judgment of the learned trial Judge and

dismissed the appeal. In second appeal the High Court

reversed the decisions of the courts below and allowed

the appeal taking the view that a decree for eviction could

be passed against the defendant on the basis of the title

of the plaintiff and, accordingly, remanded the case to the

first appellate court on the ground that it had not

recorded any finding on the question of the title of the

parties. It was contended before this Court that as the

trial court was exercising limited jurisdiction under the

Page 21 21

Rent Act, the question of title to the suit premises could

not be decided inasmuch as that had to be done by a civil

court in its ordinary jurisdiction and, therefore, the High

Court erred in law in remanding the case to the first

appellate court for deciding the question of title of the

plaintiff and passing an equitable decree for eviction of

the defendant. The Court posed a question whether on

the facts and in the circumstances of the case the High

Court was right in law holding that an equitable decree for

eviction of the defendant could be passed under Order VII

Rule 7 of the Civil Procedure Code and remanding the

case to the first appellate court for recording its finding on

the question of title of the parties to the suit premises and

for passing an equitable decree for eviction against the

defendant if the plaintiffs were found to have title thereto.

Answering the question the learned Judges proceeded to

state thus: -

“It is evident that while dealing with the suit of the

plaintiffs for eviction of the defendant from the suit

premises under clauses (c) and (d) of sub-section

(1) of Section 11 of the Act, courts including the

High Court were exercising jurisdiction under the

Page 22 22

Act which is a special enactment. The sine qua

non for granting the relief in the suit, under the

Act, is that between the plaintiffs and the

defendant the relationship of “landlord and tenant”

should exist. The scope of the enquiry before the

courts was limited to the question: as to whether

the grounds for eviction of the defendant have

been made out under the Act. The question of title

of the parties to the suit premises is not relevant

having regard to the width of the definition of the

terms “landlord” and “tenant” in clauses (f) and

(h), respectively, of Section 2 of the Act.”

19.In course of deliberation, the two-Judge Bench

distinguished the authorities in Firm Sriniwas Ram

Kumar v. Mahabir Prasad

8

and Bhagwati Prasad

(supra) by observing thus: -

“15. These are cases where the courts which

tried the suits were ordinary civil courts having

jurisdiction to grant alternative relief and pass

decree under Order VII Rule 7. A Court of Rent

Controller having limited jurisdiction to try suits

on grounds specified in the special Act obviously

does not have jurisdiction of the ordinary civil

court and therefore cannot pass a decree for

eviction of the defendant on a ground other than

the one specified in the Act. If, however, the

alternative relief is permissible within the ambit

of the Act, the position would be different.”

[Emphasis supplied]

8

AIR 1951 SC 177

Page 23 23

20.Thereafter, the learned Judges proceeded to express

thus:

“16. In this case the reason for denial of the

relief to the plaintiffs by the trial court and the

appellate court is that the very foundation of the

suit, namely, the plaintiffs are the landlords and

the defendant is the tenant, has been

concurrently found to be not established. In any

event inquiry into title of the plaintiffs is beyond

the scope of the court exercising jurisdiction

under the Act. That being the position the

impugned order of the High Court remanding the

case to the first appellate court for recording

finding on the question of title of the parties, is

unwarranted and unsustainable . Further, as

pointed out above, in such a case the provisions

of Order VII Rule 7 are not attracted.”

[Underlining is ours]

21.At this juncture, we may fruitfully refer to the principles

stated in Dr. Ranbir Singh v. Asharfi Lal

9

. In the said

case the Court was dealing with the case instituted by the

landlord under Rajasthan Premises (Control of Rent and

Eviction) Act, 1950 for eviction of the tenant who had

disputed the title and the High Court had decided the

judgment and decree of the courts below and dismissed

the suit of the plaintiff seeking eviction. While adverting

9

(1995) 6 SCC 580

Page 24 24

to the issue of title the Court ruled that in a case where a

plaintiff institutes a suit for eviction of his tenant based on

the relationship of the landlord and tenant, the scope of

the suit is very much limited in which a question of title

cannot be gone into because the suit of the plaintiff would

be dismissed even if he succeeds in proving his title but

fails to establish the privity of contract of tenancy. In a

suit for eviction based on such relationship the Court has

only to decide whether the defendant is the tenant of the

plaintiff or not, though the question of title if disputed,

may incidentally be gone into, in connection with the

primary question for determining the main question about

the relationship between the litigating parties. In the said

case the learned Judges referred to the authority in LIC v.

India Automobiles & Co .

10

wherein the Court had

observed that in a suit for eviction between the landlord

and tenant, the Court will take only a prima facie decision

on the collateral issue as to whether the applicant was

landlord. If the Court finds existence of relationship of

10

(1990) 4 SCC 286

Page 25 25

landlord and tenant between the parties it will have to

pass a decree in accordance with law. It was further

observed therein that all that the Court has to do is to

satisfy itself that the person seeking eviction is a landlord,

who has prima facie right to receive the rent of the

property in question. In order to decide whether denial of

landlord’s title by the tenant is bona fide the Court may

have to go into tenant’s contention on the issue but the

Court is not to decide the question of title finally as the

Court has to see whether the tenant’s denial of title of the

landlord is bona fide in the circumstances of the case.

22.On a seemly analysis of the principle stated in the

aforesaid authorities, it is quite vivid that there is a

difference in exercise of jurisdiction when the civil court

deals with a lis relating to eviction brought before it under

the provisions of Transfer of Property Act and under any

special enactment pertaining to eviction on specified

grounds. Needless to say, this court has cautiously added

that if alternative relief is permissible within the ambit of

the Act, the position would be different. That apart, the

Page 26 26

Court can decide the issue of title if a tenant disputes the

same and the only purpose is to see whether the denial of

title of the landlord by the tenant is bona fide in the

circumstances of the case. We respectfully concur with

the aforesaid view and we have no hesitation in holding

that the dictum laid down in Bhagwati Prasad (supra)

and Bishwanath Agarwalla (supra) are distinguishable,

for in the said cases the suits were filed under the

Transfer of Property Act where the equitable relief under

Order VII Rule 7 could be granted.

23.At this juncture, we are obliged to state that it would

depend upon the Scheme of the Act whether an

alternative relief is permissible under the Act. In

Rajendra Tiwari’s case the learned Judges, taking into

consideration the width of the definition of the “landlord”

and “tenant” under the Bihar Buildings (Lease, Rent and

Eviction) Control Act, 1982, had expressed the opinion.

The dictionary clause under the Act, with which we are

concerned herein, uses similar expression. Thus, a limited

enquiry pertaining to the status of the parties, i.e.,

Page 27 27

relationship of landlord and tenant could have been

undertaken. Once a finding was recorded that there was

no relationship of landlord and tenant under the Scheme

of the Act, there was no necessity to enter into an enquiry

with regard to the title of the plaintiff based on the sale

deed or the title of the defendant as put forth by way of

assertion of long possession. Similarly, the learned

appellate Judge while upholding the finding of the learned

trial Judge that there was no relationship of landlord and

tenant between the parties, there was no warrant to

reappreciate the evidence to overturn any other

conclusion. The High Court is justified to the extent that

no equitable relief could be granted in a suit instituted

under the Act. But, it has committed an illegality by

affirming the judgment and decree passed by the learned

trial Judge because by such affirmation the defendant

becomes the owner of the premises by acquisition of title

by prescription. When such an enquiry could not have

been entered upon and no finding could have been

recorded and, in fact, the High Court has correctly not

Page 28 28

dwelled upon it, the impugned judgment to that extent is

vulnerable and accordingly we set aside the said

affirmation.

24.Presently we shall proceed to address ourselves, which

is necessary, as to what directions we should issue and

with what observations/clarifications. In Rajendra

Tiwary (supra), the two-Judge Bench had observed that

the decision rendered by this Court did not preclude the

plaintiff for filing the suit for enquiry of title and for

recovery of possession of the suit premises against the

defendant. In the said case a suit for specific

performance of contract filed against the defendant was

pending. The Court had directed that the suit to be filed

by the plaintiff for which a three months’ time was

granted should be heard together with the suit already

instituted by the defendant. In the present case, the suit

was instituted on the basis of purchase. A plea was

advanced that the defendant had already perfected his

title by prescription as he was in possession for 18 to 19

years. The trial court had accepted the plea and the

Page 29 29

appellate court had reversed it. The High Court had

allowed the second appeal holding that when the

relationship of landlord and tenant was not established, a

decree for eviction could not be passed. We have already

opined that the High Court could not have affirmed the

judgment and decree passed by the trial court as it had

already decided the issue of adverse possession in favour

of the defendant, though it had neither jurisdiction to

enquire into the title nor that of perfection of title by way

of adverse possession as raised by the defendant. Under

these circumstances we are disposed to think that the

plaintiff is entitled under law to file a fresh suit for title

and recovery of possession and such other reliefs as the

law permits.

25.At this juncture, we think it apt to clarify the position,

for if we leave at this when a fresh suit is filed the

defendant would be in a position to advance a plea that

the right of the plaintiff had been extinguished as he had

not filed the suit for recovery of possession within the

time allowed by law. It is evincible that the suit for

Page 30 30

eviction was instituted on 21.3.1978 and if the time is

computed from that day the suit for which we have

granted liberty would definitely be barred by limitation.

Thus, grant of liberty by us would be absolutely futile.

Hence, we think it imperative to state the legal position

as to why we have granted liberty to the plaintiff. We

may hasten to add that we have affirmed the judgment of

the High Court only to the extent that as the relationship

of landlord and tenant was not established the defendant

was not liable for eviction under the Act. The issue of

right, title and interest is definitely open. The appellant is

required to establish the same in a fresh suit as required

under law and the defendant is entitled to resist the same

by putting forth all his stand and stance including the plea

of adverse possession. The fulcrum of the matter is

whether the institution of the instant suit for eviction

under the Act would arrest of running of time regard

being had to the concept of adverse possession as well as

the concept of limitation. The conception of adverse

possession fundamentally contemplates a hostile

Page 31 31

possession by which there is a denial of title of the true

owner. By virtue of remaining in possession the

possessor takes an adverse stance to the title of the true

owner. In fact, he disputes the same. A mere possession

or user or permissive possession does not remotely come

near the spectrum of adverse possession. Possession to

be adverse has to be actual, open, notorious, exclusive

and continuous for the requisite frame of time as

provided in law so that the possessor perfects his title by

adverse possession. It has been held in Secy. Of State

for India In Council v. Debendra Lal Khan

11

that the

ordinary classical requirement of adverse possession is

that it should be nec vi, nec clam, nec precario

26.In S.M. Karim v. Mst. Bibi Sakina

12

, it has been

ruled that 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.

11

(1933-34) 61 IA 78 : AIR 1934 PC 23

12

AIR 1964 SC 1254

Page 32 32

27.In Karnataka Board of Wakf v. Govt. of India

13

it

has been opined that 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 owner. It must

start with a wrongful disposition of the rightful owner and

be actual, visible, exclusive, hostile and continued over

the statutory period. Thereafter, the learned Judges

observed thus: -

“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

13

(2004) 10 SCC 779

Page 33 33

all facts necessary to establish his adverse

possession.”

28.It is to be borne in mind that adverse possession, as a

right, does not come in aid solely on the base that the

owner loses his right to reclaim the property because of

his willful neglect but also on account of the possessor’s

constant positive intent to remain in possession. It has

been held in P.T. Munichikkanna Reddy and others v.

Revamma and others

14

.

29.Regard being had to the aforesaid concept of adverse

possession, it is necessary to understand the basic policy

underlying the statutes of limitation. The Acts of

Limitation fundamentally are principles relating to

“repose” or of “peace”. In Halsbury’s Laws of England,

Fourth Edition, Volume 28, Para 605 it has been stated

thus: -

“605. Policy of the Limitation Acts. – The

courts have expressed at least three differing

reasons supporting the existence of statutes of

limitation, namely (1) that long dormant claims

have more of cruelty than justice in them, (2) that

a defendant might have lost the evidence to

14

(2007) 6 SCC 59

Page 34 34

disprove a stale claim, and (3) that persons with

good causes of actions should pursue them with

reasonable diligence.”

30.These principles have been accepted by this Court

keeping in view the statutory provisions of the Indian

Limitation Act. The fundamental policy behind limitation

is that if a person does not pursue his remedy within the

specified time frame, the right to sue gets extinguished.

In the present case the pivotal point is whether a good

cause because a litigant cannot deprive the benefit

acquired by another in equity by his own inaction and

negligence, as assumed by the plaintiff, has been lost

forever as he has not been able to prove the relationship

of landlord and tenant in a suit for eviction which includes

delivery of possession.

31.Keeping in view the aforesaid principles it is required to

be scrutinized whether the time spent in adjudication of

the present suit and the appeal arrests the running of

time for the purpose of adverse possession. In this

regard, we may profitably refer to the decision in Mst.

Page 35 35

Sultan Jehan Begum and Ors. v. Gul Mohd. and

Ors.

15

wherein following principles have been culled out: -

“(1) When a person entitled to possession does not

bring a suit against the person in adverse

possession within the time prescribed by law his

right to possession is extinguished. From this it

only follows that if the former brings a suit against

the latter within the prescribed period of limitation

his right will not be extinguished.

(2) If a decree for possession is passed in that suit

in his favour he will be entitled to possession

irrespective of the time spent in the suit and the

execution and other proceedings.

(3) The very institution of the suit arrests the

period of adverse possession of the defendant and

when a decree for possession is passed against the

defendant the plaintiff's right to be put in

possession relates back to the date of the suit.

(4) Section 28 of the Limitation Act merely

declares when the right of the person out of

possession is extinguished. It is not correct to say

that that section confers title on the person who

has been in adverse possession for a certain

period. There is no law which provides for

'conferral of title' as such on a person who has

been in adverse possession for whatever length of

time.

(5) When it is said that the person in adverse

possession 'has perfected his title', it only means

this. Since the person who had the right of

possession but allowed his right to be extinguished

by his inaction, he cannot obtain the possession

15

AIR 1973 MP 72

Page 36 36

from the person in adverse possession, and, as its

necessary corollary the person who is in adverse

possession will be entitled to hold his possession

against the other not in possession, on the well

settled rule of law that possession of one person

cannot be disturbed by any person except one who

has a better title.”

32.In Sultan Khan s/o Jugge Khan v. State of Madhya

Pradesh and another

16

a proceeding was initiated for

eviction of the plaintiff under Section 248 of the M.P. Land

Revenue Code, 1959. Facing eviction plaintiff filed a suit

for declaration of his right, title and interest on the

bedrock of adverse possession. His claim was that he had

been in uninterrupted possession for more than 30 years.

Repelling the contention the learned Judge observed thus:

“It must, therefore, be accepted that filing of the

suit for recovery of possession, by itself, is

sufficient to arrest the period of adverse

possession and a decree for possession could be

passed irrespective of the time taken in deciding

the suit. If this principle is applied to the

proceedings under Section 248 of the Code, it

must be held that in case a person has not

perfected his title by adverse possession before

start of the proceedings, he cannot perfect his title

during the pendency of the proceedings. Adverse

possession of the person in possession must be

deemed to have been arrested by initiation of

these proceedings.”

16

1991 MPLJ 81

Page 37 37

33.We have referred to the aforesaid pronouncements

since they have been approved by this Court in Babu

Khan and others v. Nazim Khan (dead) by L.Rs. and

others

17

wherein after referring to the aforesaid two

decisions and the decision in Ragho Prasad v. P.N.

Agarwal

18

the two-Judge Bench ruled thus: -

“The legal position that emerges out of the

decisions extracted above is that once a suit for

recovery of possession against the defendant who

is in adverse possession is filed, the period of

limitation for perfecting title by adverse possession

comes to a grinding halt. We are in respectable

agreement with the said statement of law. In the

present case, as soon as the predecessor-in-

interest of the applicant filed an application under

Section 91 of the Act for restoration of possession

of the land against the defendant in adverse

possession, the defendant's adverse possession

ceased to continue thereafter in view of the legal

position that such adverse possession does not

continue to run after filing of the suit, we are,

therefore, of the view that the suit brought by the

plaintiff for recovery of possession of the land was

not barred by limitation.”

34.Coming to the case at hand the appellant had filed the

suit for eviction. The relief sought in the plaint was for

delivery of possession. It was not a forum that lacked

17

AIR 2001 SC 1740

18

1969 All LJ 975

Page 38 38

inherent jurisdiction to pass a decree for delivery of

possession. It showed the intention of the plaintiff to act

and to take back the possession. Under these

circumstances, after the institution of the suit, the time for

acquiring title by adverse possession has been arrested or

remained in a state of suspension till the entire

proceedings arising out of suit are terminated. Be it

ingeminated that if by the date of present suit the

defendant had already perfected title by adverse

possession that would stand on a different footing.

35.In view of the aforesaid analysis, we permit the

appellant-plaintiff to institute a suit as stated in paragraph

24 within a period of two months from today.

36.Resultantly, the appeal is allowed leaving the parties to

bear their respective costs.

……………………………… .J.

[Anil R. Dave]

……………………………… .J.

Page 39 39

New Delhi; [Dipak Misra]

November 13, 2013.