Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2007 (5) TMI 643 - SUPREME COURT

2007 (5) TMI 643 - SUPREME COURT - 2007 AIR 2191, 2007 (7) SCR 339, 2007 (12) SCC 27, 2007 (7) JT 189, 2007 (7) SCALE 475 - Civil Appeal No. 6345 of 2000 - Dated:- 18-5-2007 - S.B. Sinha And Markandey Katju JJ. JUDGMENT: S.B. SINHA, J: 1. This appeal is directed against the judgment and order dated 31.12.1999 passed by the High Court of Andhra Pradesh, allowing the appeal from a judgment and decree dated 05.09.1998 passed by the IV Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 161 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecember 1976. No rent, however, was demanded by Respondent No. 3 from Respondent No.1. Several constructions were raised by it from time to time. 3. Respondent No. 3, however, entered into a development agreement with the managing partner of the appellant and other persons on 01.04.1986. A deed of partnership was executed on 21.04.1986. Disputes and differences having arisen between the partners, the same were referred to an arbitrator. An arbitration award was passed on 22.11.1987, in terms whe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reply to the said notice, asked the appellant to furnish the particulars in regard to the ownership of the suit property. It, however, not claimed therein that it had acquired any ownership by reason of a purported oral gift made by Respondent No. 3 herein, as appears to be the case now. As it failed to vacate the premises, a suit for recovery of possession and arrears of rents and also for damages for wrongful use and occupation of the property was filed by the appellant. In the written statem .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he following issues were framed : "I. Whether the oral gift by the third defendant in favour of first defendant is true and valid and binding on the plaintiff ? II. Whether the documents relied upon by the plaintiff are brought into existence in between the plaintiff and third defendant in the circumstances alleged in W.S. ?" 5. Respondent No. 1 admittedly did not examine himself. The suit of the appellant was decreed. The learned Trial Judge opined : i) The burden was on Respondent No .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the property derived by reason of the oral gift. vi) No disclosure was made in regard to the ownership of the property, in the return filed by it before the Registrar under the Societies Registration Act. vii) No resolution had been passed by the Governing Body accepting alleged oral gift. viii) No special quota or any reservation in the institution run by Respondent No. 1-Society for Muslims, having been made, the plea of oral gift cannot be believed. ix) No display on any board was made ment .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

No gift tax was paid in respect of the said purported gift either by Respondent No. 3 or by Respondent No.1. xiv) Had Respondent No. 1 any intention to make any gift, ordinarily it would have been presumed to do so in favour of the minority Muslim Societies. xv) No explanation had been offered by Respondent No. 1 as to why it paid rent upto October 1976. xvi) In none of the letters addressed by Respondent No. 1 to the University Grants Commission, Osmania University, Urban Land Ceiling Authority .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

i) There was no reason as to why there was no demand to pay rent from Respondent No.1 for a period of ten years. ii) No explanation was offered as to why Respondent No. 1was asked to deliver vacant possession of the property only in the year 1987 and a suit was filed only in the year 1989. iii) As Respondent No. 1 constructed a large number of structures on the schedule property upon obtaining necessary permission from the Municipal Corporation, Hyderabad and has been paying taxes thereupon and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uction, which must have been done pursuant to the oral gift of the property. v) The reasoning of the trial court that donor being a Muslim would not have gifted it to an institution belonging to other community cannot be accepted. It was not necessary for Respondent No. 1 to inform about the said oral gift to various authorities including the University Grants Commission. vi) The findings of the learned Trial Judge disbelieving the case of Respondent No. 1 are based on surmises and conjectures. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ugh a tenant cannot claim adverse possession so long as he continues to be a tenant, but once his tenancy is determined, his possession would be adverse to that of the owner. 8. Appellant is, thus, before us. 9. Mr. Dushyant A. Dave, learned Senior Counsel appearing on behalf of the appellant, would submit: i) The High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that Respondent No. 3 being admittedly the owner of the property, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

would, on the other hand, submit : i) The burden of proof lay heavily on Appellant to prove the oral gift was made by examining the donor i.e. Respondent No. 3 in the suit and in any event, as it was incumbent on him to examine himself inasmuch he having supported the case of the appellant must also be held to be plaintiff. ii) Although DW-2, one of the attestors of the oral gift in his cross- examination stated that he had written a letter of thanks to Respondent No.3 for his generous donation, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the same was not sufficient to negative the gift, particularly in the context of other surrounding circumstances. v) The learned Judge applied different standards by making observation that Respondent No. 1 had not made any declaration before the Urban Land Ceiling Authorities about the gift and no minutes thereabout had been produced, as the appellant or Respondent No. 3 should have produced records of declaration before the Urban Land Ceiling Authorities, particularly having regard to the fac .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Cooperative Society, Municipal Corporation of Hyderabad, as there was no occasion therefor. 11. The learned counsel would contend that having regard to the provisions contained in Article 67 of the Limitation Act, the suit was barred by limitation. The deed of lease, being for a period of 11 months, expired on 16.07.1974 and limitation would be deemed to run from the said date. 12. In this connection, our attention has also been drawn to the evidence of PW-1, who was the Managing Partner of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d to have no knowledge that Respondent No. 1 had been in possession of the property in assertion of his title by not paying rents. As Respondent No. 1 was in possession for a period of more than 12 years, it must be held to have acquired title by prescription. 14. 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; a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n institution on the suit property. It was, therefore, expected of it that it would insist on execution of a registered deed of gift. 17. It may be true that, as a defendant, it was not required to examine Respondent No. 3 herein , who had been siding with the plaintiff by calling him as a witness by getting summons to depose in the court. There cannot be any doubt whatsoever that only by reason of the fact that Respondent No. 3 did not get himself examined for one reason or the other, the same .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the witnesses, was the best judge to arrive at a finding in regard to their reliability or trustworthiness. The High Court did not deal with the matter, ordinarily it could not have even done so [See Raj bir Kaur and Another v. S. Chokesiri & Co. (1988) 1 SCS 19]. 18. It may be true, as has been contended by Mr. Parasaran, that conduct of the parties would be relevant, but what would be more relevant is the conduct of a party, who from his status of a tenant acquires the status of the owne .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n Gopal Krishnaji Ketkar v. Mamomed Haji Latif & Others [1968 (3) SCR 862] wherein this Court laid down the law in the following terms : "Even if the burden of proof does not lie on a party, the Court may draw an adverse inference, if he withholds important documents in his possession which can throw light on the facts at issue. It is, in or opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and/or an adverse inference could be drawn that had the said letter been produced, the same would have gone against the interest of Respondent No. 1. In making an oral gift by an owner of the property in favour of his tenant apart from it being wholly unlikely, actual delivery of possession is imperative. There is nothing on record to show that at any point of time, Respondent No. 3 had delivered the possession of the premises in question to Respondent No. 1. Respondent No. 1 being a tenant, con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

venue authorities. It, even did not take any step to let others know about its change of status, be it the revenue department, or be it other authorities with which it was dealing, namely, the University Grants Commission, Government of Andhra Pradesh, Osmania University, or even Municipal Corporation of Hyderabad. An application for mutation of one's name in the revenue records by the parties although would not by itself confer any title, but then a presumption in regard to the nature of po .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t to accept the same by its conduct. Why it would pay rent to Respondent No. 3 till October 1976 has not been explained. 24. Acquiescence on the part of Respondent No. 1, as has been noticed by the High Court, did not confer any title on Respondent No. 1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred. 25. It is now well-settled that time creates title. 26. Acquisition of a title is an inference of la .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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. 28. 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dial Singh [AIR 1927 PC 23], Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bombay 97], and The Ramanathapuram Market Committee, Virudhunagar v. East India Corpn. Ltd., Madurai [AIR 1976 Madras 323] and Vidhyadhar v. Manikrao and Anr. [(1999) 3 SCC 573], but by reason of presumption alone, the burden is not discharged. A title is not created. 29. A claim of title by prescription by Respondent No. 1 again is not tenable. It based its claim on a title. It had, therefore, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

apply. As the claim of Respondent No. 1 was based on a title, the onus was on him to prove the same. Respondent No. 1 failed to discharge the same and, therefore, the learned Trial Judge, in our opinion, has committed no error in passing a decree in favour of the plaintiff. 31. In Smt. Shakuntala S. Tiwari v. Hem Chand M. Singhania [(1987) 3 SCC 211], whereupon Mr. Parasaran placed strong reliance, this Court was considering a case where termination of tenancy in terms of Sections 12 and 13 of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by the combined effect of the operation of Sections 12 and 13 of the Bombay Rent Act. In this connection, the terms of Sections 12 and 13 of the Bombay Rent Act may be referred to. At the most it would be within Article 66 of the Limitation Act if we hold that forfeiture has been incurred by the appellant in view of the breach of the conditions mentioned in Section 13 of the Bombay Rent Act and on lifting of the embargo against eviction of tenant in two. Article 66 or Article 67 would be applica .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ticles 67 and 66 of the Limitation Act and the nature of the cause of action in this case in the light of Sections 12 and 13 of the Bombay Rent Act, we are of the opinion that the period of limitation in this case would be 12 years. There is no dispute that if the period of limitation be 12 years, the suit was not barred." 32. The said decision has no application in the facts and circumstances of the present case as there is nothing to show that after the expiry of period envisaged in the l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o our attention has again been drawn, this Court came to the conclusion that the civil court had no jurisdiction to try the suit covered by the rent control legislation. No such contention had, however, been raised. The question which as to whether the Civil Court would have jurisdiction to determine a matter must fall for consideration of the trial court. An issue in that regard should have been framed. In this case, the respondents have raised a plea of title in itself, the question in regard .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version