TMI Blog2013 (11) TMI 1793X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had become the owner of the suit accommodation on the basis of adverse possession. Being of this view, the trial court dismissed the suit. 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajendra Tiwary s case. b) Though three substantial questions of law were framed, yet the learned single Judge without considering all the questions 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 re-appreciation 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery of possession. As has been stated earlier the High Court has reversed the same by distinguishing the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil court can 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 entitled to raise a contention that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lis of the present nature. As per the exposition of facts, the analysis made 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. 18. Presently, we shall analyse the principles stated in Rajendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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[AIR 1951 SC 177] 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court finds existence of relationship of 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. It has been held in Secy. Of State for India In Council v. Debendra Lal Khan[(1933-34) 61 IA 78 : AIR 1934 PC 23] 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[AIR 1964 SC 1254] , 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. 27. In Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] 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 continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionship 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. Sultan Jehan Begum and Ors. v. Gul Mohd. and Ors.[AIR 1973 MP 72] 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 plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the decision in Ragho Prasad v. P.N. Agarwal[1969 All LJ 975] 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 inherent jurisdiction to pass a decree for delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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