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2007 (5) TMI 643 - SC - Indian LawsChallenged the Judgment and Order passed by the High Court - Oral Gift of the Property - acquired title by adverse possession - burden of proof - suit for recovery of possession and arrears of rents and also for damages for wrongful use and occupation of the property filed - jurisdiction of the Civil Court - HELD THAT:- Respondent No. 3 was admittedly the owner of the property. As his ownership had not been disputed, the burden was on Respondent No. 1 to prove his title. It has, as noticed hereinbefore, claimed title : (i) by reason of an oral gift; and (ii) by adverse possession. The High Court although noticed the lease came to an end in the year 1975 and if from the said date or at least from the date of purported oral gift allegedly made in its favour by Respondent No.1. Any change in the nature of its position occurred, it was expected of it to accept the same by its conduct. Why it would pay rent to Respondent No. 3 till October 1976 has not been explained. It is now well-settled that time creates title. Acquisition of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other. It may be true that Respondent No. 1 had constructed some buildings; but it did so at its own risk. If it though that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn. It may be true that Respondent No. 3 herein should have examined himself and the learned Trial Judge committed a serious error in drawing an adverse inference in that behalf as against Respondent No. 1. It was, however, so done keeping in view the fact that Respondent No. 3 was evidently not interested in the property in view of the fact that it had suffered a decree. For all intent and purport, even if the submission of Mr. Parasaran is accepted that the appellant is claiming is claiming only by reason of an award, he has transferred the property in his favour. He received a valuable consideration in terms of the award. We are not concerned with the validity thereof. Non-examination of Respondent No. 3 indisputably would give rise to a presumption, as has been held by this Court in Sardar Gurbaksh Singh v. Gurdial Singh [1927 (7) TMI 8 - PRIVY COUNCIL], Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh[1930 (3) TMI 18 - BOMBAY HIGH COURT], and The Ramanathapuram Market Committee, Virudhunagar v. East India Corpn. Ltd., Madurai[1975 (1) TMI 96 - MADRAS HIGH COURT] and Vidhyadhar v. Manikrao and Anr. [1999 (3) TMI 655 - SUPREME COURT], but by reason of presumption alone, the burden is not discharged. A title is not created. A claim of title by prescription by Respondent No. 1 again is not tenable. It based its claim on a title. It had, therefore, prima facie, no animus possidendi. In this case, the respondents have raised a plea of title in itself, the question in regard to the jurisdiction of the Civil Court has not been raised, presumably in view of the fact, that ultimately the civil court was bound to determine the question whether the defendant/respondent No. 3 made an oral gift or not being a complicated question, could not have gone into in a suit under the Rent Control Act. In any event, such a question having not been raised, we are of the opinion that the same should not be permitted to be raised before us for the first time. Thus, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
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