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M/s Kamakshi Builders Versus M/s Ambedkar Educational Society

2007 (5) TMI 643 - SUPREME COURT

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 of 1989. 2. Respondent No. 3 herein was the owner of the property which is situated at Bagh Lingampalli, Hyderabad. It was l .....

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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 whereof a sum of ₹ 4,00,000/- was awarded in favour of Respondent No. 3. The said award was made the rule of court in ter .....

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t, 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 statement filed in the suit, it was, inter alia, contended that Respondent No. 3 herein made an oral gift in its favour on or abou .....

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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. 1 to prove the oral gift. ii) There was no reason for it not to disclose thereabout in its reply to the notice issued by t .....

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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 mentioning that the property was gifted to Respondent No.1-Society. x) No mutation was effected pursuant to or in furtherance of .....

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dent 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, Registrar of Cooperative Societies, Municipal Corporation of Hyderabad, the factum of the alleged deed of gift was disclos .....

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anation 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 having informed thereabout to various authorities like University Grants Commission, Osmania University, Government of Andhr .....

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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. vii) Non-examination of Respondent No. 3 would give rise to an adverse inference as burden of proof lay to show lay on him t .....

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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, the burden lay on Respondent No. 1 who had alleged an oral gift was made in its favour, and it having failed to prove the sa .....

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ing 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, non-production thereof would not give rise to an adverse inference, inasmuch as had the Respondent No. 3 gone into the witn .....

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arned 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 fact that the burden of proof in that behalf was on the appellant as it filed a suit for ejectment. vi) Assumption of the learn .....

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ntend 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 appellant, which reads thus : "Just one or two months prior to execution of A.10, I came into contact with D.3. I do no .....

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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; and (ii) by adverse possession. 15. The case that the oral gift was made on 01.10.1975 was specifically made out. The witness .....

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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 would mean that Respondent No. 1 discharged its burden. The learned Trial Judge did not place reliance on depositions of the .....

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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 owner of the property. Acquisition of such ownership by way of gift and, thus, wholly without consideration, is not expected of .....

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ollowing 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 possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof: 20 .....

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rest 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, continued to be a tenant. Its status as a lessee on its own showing merged into a higher status. At what point of time such sta .....

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t, 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 possession can be drawn in that behalf. Had such an application been filed by Respondent No. 1 before the concerned authoritie .....

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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 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 .....

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n 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 view of the fact that it had suffered a decree. For all intent and purport, even if the submission of Mr. Parasaran is acce .....

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manathapuram 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, prima facie, no animus possidendi. 30. Reliance placed by Mr. Parasaran on Article 67 of the Limitation Act is also not appo .....

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d 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 the Bombay Rent Act stood admitted. The question of applicability of Articles 66 and 67 of the Limitation Act was considered .....

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ons 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 applicable to the facts of this case; there is no scope of the application of Article 113 of the Limitation Act in any view of the .....

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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 lease and despite the fact that the respondent itself had been paying/tendering monthly rent, there had been final determinat .....

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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 to the jurisdiction of the Civil Court has not been raised, presumably in view of the fact, that ultimately the civil court .....

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