SOMNATH BARMAN versus DR. S. P. RAJU & ANR.

SOMNATH BARMAN

DR. S. P. RAJU & ANR.

October 16, 1969

[J. C. SHAH AND K. S. HEGDE, JJ.]

Specific Relief Act (l of 1877), s. 9-Suit for possessitm, filed more than 6 months after dispossession-P/ainJiff's possession proved but not title-Whether plaintiff entitled to decree for possmsion.

In suit for possession of i.9unovable property filed in 1949, i• was found that the plaintiff had not established his title to the pl'opcrty, but it was pro1'ed that he was in pcsscssion from 1930 to 1945 and that the defendant trespassed on the property in 1946.

On the question whether decree could be passed in plaintiff's favour, HELD : Possessory title is good title as against everybody other than the lawful owner. Therefore, in an action of ejectment against wrong doer, plrior possession of the plaintiff is sufficient title even if the suit was not brought within 6 months of dispossession as required by s. 9 of the Specific Relief Act, 1877. The wrongdoer (trespasser) cannot successfully resist the suit by showing that the title and right to possession are in third person. [874 B-D]

Ismail Arif! v. Mohamed Ghouse, I.L.R. 211 I.A. 99, applied.

Narayana Row v. Dharmachar, 1.L.R. XXVI Mad. 514, Krislutarav Ya1hwant and Ors. v. Vasudev Apaji Ghotikar (deceased) by I rs. l.L.R. 8 Born. 371, UmMo Singh v. Ramji Das & Ors. 1.L.R. 36 All, 51, Waii ..thmad Khan & Ors. v. Aiudhia Kandu I.L.R. XIII All. 537, and Subodh Gopa/ Bose v. Province of Bifiar and Ors. A.LR. 1950 Pat. 222, approved. Debi Churn Bo/do v. Issur Chunder Manjee, I.L.R. IX Cal. 39, Ertaza Ho.ssein & Anr. v. Bany Mistry I.L.R. IX Cal. !30, Purmeshur Chowdhry & Ors. v .. Brijo Lal Chowdhry, I.L.R. XVII Cal. 256 and Nis« Chand Gait<L and Ors. v, Kanchiram Bagani, I.L.R. XXVI Cal. 579, overruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2342 of 1966

Appeal from the judgment and decree dated October 8, 1963 of the Andhra Pradesh High Court in C.C.C. Appeal No. 47 oi 1959.

H. R. Gokhale, K. R. Chaudhuri and G. Kaushalya, for the

appellant.

M. C. Chagla, R,. V. Pillai ·and Subodh Markandya, for res-

p<indent No. L

M. C. Bhandare and K. Rajendra Chaudhuri, for respondent

The Judgment of the Coun was delivered by

Hegde, J. This appeal has been brought by the !st defendant in 0.S. No. 210 of 1958 on the file of the 1st Additional Judge, City Civil Court, Hyderabad. That was suit brought by the 1st responde11t-plaintiff for possession of the suit property. That suit was dismissed by the trial court but in appeal the High Court of Andhra Pradesh reversed the decree of the trial court and decreed the plaintiff's suit for possession. Thereupon this appeal has been brought after obtaining certificate under An. 133 ( 1 )(a) of the Constitution. The subject matter of the suit is piece of land in Himayat-nagar measuring 2856 sq. yards. The plaintiff"s case is that he purchased this land from one Jamshecr Khan with other plots in the vicinity under two sale deeds marked Exhs. P-2 and P-3; thereafter he was in possession of the same. When he was in possession, the second defendant trespassed into the said property and took possession of the same, thereafter he illegally· sold_ the same to the 1st defendant. The defendants denied the plaint allegations. They denied that the plaintiff had any title to the suit property or that he was in possession of the same at any time. On the other hand they pleaded that the second defendant who had acquired title to the suit property by aaversc possession had sold the same to the I st defendant in the year 1946.The trial court came to the concrnsion that the plaintiff has not established his title to the suit property. It also held that the plaintiff has not satisfactorily proved that he was in possession of the suit property at any time. In view of th<:>~;:. findings it thought that it was not necessary to go into the defendants' plea of adverse possession. In the result it dismissed the plaintiff's suit. In appeal the High Court agreed with the trial court that the plain-tiff has not proved his title to the suit prop.;:rly. It rejected the plea of the defendants that they have perfected their title to the suit property by adverse possession. But differing from the trial court it came to the conclusion that the plaintiff was put into possession of the suit property by his vendor Jamsheer Khan Sahnb in about the year 1930 and he was in possession of the same till about the year 1945, when the second defendant tres-passed on the same and took possession of it.

In view of the concurrent finding reached by the trial court and the High Court that the plaintiff has not proved his title, that question was not reopened in this Court." The finding of the High Court that the defendants have not established their pleas of title by adverse possession was challenged though feebly. Ir was contended before us that the plaintiff who based his suit on

title and prior possession having failed to establish his title, his suit has' to fail. Further the finding of the High Court that the plai_ntiff was in possession of the said property between 1930 to 1945 was also assailed before us.

The appellant claims that he came into the possession of the suit property on the strength of the sale deed ~xecuted by the second defendant in· his favour on 1-10-1946. The suit from which this appeal arises was initially instituted on the original side of the High Court of Hyderabad in the year 1949. ~herefore to establish his claim of title by adverse possession, the 1st defen-dant must prirr.arily- depend on the fact that the second defendant was in possession of the suit property for period of over nine years before he sold the same to him. Though the seeond defendant filed written statement . supporting the case of the I st defendant and though he was present at the time of hearing on several occasions, he was not examined as witness in this case to support the plea ·of adverse possession put forward by the defendants. . No explanation is forthcoming for his non-D cxamination. This circumstance goes long way to disc1~dit the defendant's plea of adverse possession. The 1st defendant's evidence as rega•ds adverse possession is of very little significance as his knowledge of the suit property. prior to the date he pur-chased the. same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D.W.2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh.D/ 1. It is not explained how. the 1st defendant came into possession of Exh.D/l. Though the suit was filed as far back as 1949, Exh.D/ 1 was produced into court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh.D I 1, (an unregistered document) in court. Acr.ording to D.W.2, the 1st defendant knew about tltis docu-ment as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D.W.2 anc! not relying on Exh.D /I. The other evidence adduced by the I st defendant relating to the plea of adverse possession was not commended for our acceptance. Therefore we need not consider the same. Hence we agree with the High Court that the defen-dants have failed to establish their plea of adverse possession.Now coming to the evidence relating to the plaintiff's posses-sion of the suit property f~om the year 1930 to 1945, we have firstly the oral testimony of the plaintiff. The High Court has. accepted the plaintiff's evidence as credit-worthy. The plaintiff is responsible person. He held important offices both under the

State Government as well as UJ)der the United Nations. Prima facle his evidence is worthy of acceptance. This would be parti-cularly so in view of the non-examination of the second defendant. The question before the trial court and the High Court was whether the plaintiff was in possession of the suit property bet-ween 1930 to 1945 or whether the second defendant was ·in possession of the same during that period ? On this aspect, the evidence is really one sided. The evidence of the plaintiff that he came into possession of the suij: property under. Exhs.P-2 and P-3 is supported by the recitals in those documents. In consider-ing the question whether J amsheer Khan, the vendor under Exhs.P-2 and P-3, had put the plaintiff into possession of the suit property, the fact that Jamsheer Khan had no title to the same is not very material. There is no reason to think that the recitals contained in Exhs. P-2 and P-3 as to the delivery of possession are false recitals. There is documentary evidence to show that the plaintiff paid the "Nazul" for. the properties· purchased by him under Exhs. P-2 and P-3 after his purchase. It is true that those documents do not show how much 'Nazul' was paid in respect of the suit property but the second defendant has pro-duced no documents to show that he had paid any 'l. azul' in re5pect of the suit property. Ex. P-4 is stamped revenue receipt on printed form executed in · favour of the plaintiff by the Maqtadar on August 16, 1939 for Rs. 331/14/4 pies. It reiate5 to the lands which belonged to Jamsheer Khan and situate at Narayanguda. Evidently that recital refers to the lands covered by Exts. P-2 and f'-3. It recites that sum of Rs. 331/14/4 Ps. was received from the plaintiff as 'Nazul' for the period from 15th Aban 1338 Fasli to the end of the Aban 1346 Fasli ".: the rate of Rs. 41/4/5 Ps. per year. The sale under Exhs. P-2 and P-3 was made in 1930. Evidently the 'N azul' in respect of those properties was in arrears till 1939. The 'Nazul' due undor Exhs. P-2 and P-3 comes to Rs. 41/- and odd per year ail seen from Exh. P-6.

Ex. P-5 is letter dated 11-12-193 7 received by the plaintiff from Mr. J. D. M. Dean (P.W.2), First Divisional Engineer, Hyderabad City. It relates to the construction of road from Musheerabad to Bashir Bagh. It states that under the Ferman dated 29th Shaban 56 Hijn, H.E.H. The Nizam was pleased to accord sanction to the acquisition of 20 per cent of the land without any compensation for the construction of road, from the owners of the land and that for the excess land required, com-pensation will be paid. That letter further mentions that .total , area of the fand belonging to t!Je plaintiff was 7,815 sq. yds. out of which 2,112 sq. yds. were required for the construction of the road. Out of that 1,563 sq. yds. being the 20 per cent. of the

entire area was to be taken without any compensation and the value of the remaining 549 sq. yds. will be paid to the plaintiff. That letter further informed the plaintiff that the value of the additional area which might finally be detennined after the mark-ing may be obtained from the department. It is establiShed that road from Musheerabad to Bashir Bagh was laid not only across 8 the plot covered under P. 3 but also across the site purchased under Ex. P-2 in which the suit land is situate. That was obvious because if the road did not touch any portion of Exh. P-2, the entire area of the la,nd belonging to plaintiff would have been only 5,114 sq. yds. and not 7,815 sq. yds. as mentioned in Exh. P-5. It also establishes that the plaintiff was recognised by the City Improvement Board as the person entitled to compen-sation in respect of that land. Evidence further discloses that the plaintiff was paid compensation in respect of the land taken from him in excess of 20 per cent referred to earlier. The oral evid-ence adduced in the case coupled with Exh. P.2, P.4 and P.5 satisfactorily establishes the fact that the plaintiff was in posses-D sion of the suit property till about 1945.

In addition to the evidence referred to earlier, the High Court has also relied on two other documents namely Exts. D-8 and D-9, but those documents were produced :.s additional evidence in the High Court. Their connection with the suit property is not satil;factorily established. Therefore we have excluded them from consideration. If we bear in mind the fact that the question for decision is whether the plaintiff or the 2nd defendant was in possession of the suit property between the years 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiff's case. As seen earlier, the defendants have not produced any reliable evidence to surport their case. Hence we agree with the High Court that the plaintiff has suc-ceeded in establishing that he was in possession of the suit pro-perty prior to 1945.

It was next contended on behalf of the appellant that in ~.uit for possession brought on the basis of title, the ulaintiff cannot succeed unless he proves his title to the suit property a~ well as its posression within 12 years. According to the appellant, except in suit under S. 9 of the Specific Relief Act, the plaintiff, for succeeding in the suit, has to prove both existing title to the suit property and its possession within 12 years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is gbod title as against everybody

other than the lawful owner. In Ismail Arif! v. Mohamed Ghouse('), the Judicial Committee came to the conclusion that person having possessory title can get declaration that 'he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was sufficient evidence of title as owner against the defendant.

In Narayana Row v. Dharmachar(') bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ. held that pos,ession is, under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Speci-fic Relief Act is in no way inconsistent with the position that a.> against wrong doer, prior possession of the plaintiff, in an action of ejectmcnt, is sufficient title, even if the suit be brought more than six months afler the act of dispossession complained of and that the wrong-doer cannot successfully resist the suit by showing that the title and right to possession arc in third person. The· same view was taken by the Bombay High Court in Krishnarav Yashvant and Ors. v. Vasudev Apaji Gholikar (deceased) by J .rs.('). That was also the view taken by the Allahabad High Court-sec Umrao Singh v. Ramji Das and Ors.('); Wali Ahmad Khan and Ors. v. Ahjudhia Khandu('). In Subodh Gopal Bo;e v. Province of Bihar and Ors.(") the Patna Hlgh Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Chum Bo/do v. lssur Chunder Manjee('), ~Ertaza Hossein an.d Ailr, v. Bany Mistry(') Purem-"shur Chowdhry and Ors. v. Brijo Lall Cho1»dhry(') and Nisa Chand Goita and Ors. v. Kunchiram Bagani ('[0]), in our opinion docs not lay down the Jaw correctly.

In the result this appeal fails and the same is dismissed with crn,ts. We ~ee no reason to accept any additional evidence in this Court. Hence C.M.P. No. 3588 of 1968 is dismissed; but no costs.

ppea/ dismissed.

·--·--·~- -0) I.LR. 20 I.A. 99. (J) !LR 8, Bom. 371, (5) !LR XU! All 537. (7) ILR IX Cal. 39. M ILR XVll Cal. 256.

(2) ILR XXVI Mad. 51-1. (4) ILR 36 All. 51. f6) AIR 1950 Pat. 222. (8) ILR IX Cal. 130. (10) ILR XXVI Cal. 579.