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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10316  OF 2013 (Arising out of S.L.P. (C) No. 15927 of 2008)

Tribhuvanshankar … Appellant

Versus

Amrutlal …Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. This appeal, by special leave, is from the judgment and  

order  of  the  High  Court  of  Madhya  Pradesh,  Bench  at  

Indore,  in  Second  Appeal  No.  33  of  1995  passed  on  

8.2.2008.

3. The appellant-plaintiff instituted Civil Suit No. 259A/86 in  

the Court of Civil Judge Class-II, Mhow, District Indore, for  

eviction  of  the  respondent-defendant  from  the  suit-

premises  and  for  mesne  profits.   The  case  of  the

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appellant-plaintiff  was  that  he  had  purchased  the  suit  

property  vide  registered  sale  deed  dated  1.4.1976  on  

payment of sale consideration of Rs.4500/- to the vendor,  

one  Kishanlal.   The  respondent-defendant  was  in  

possession of the said suit property as a tenant under the  

earlier owner Kishorilal on payment of rent of Rs.15/- per  

month.  It was averred in the plaint that it was an oral  

tenancy  and  after  acquiring  the  title  the  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

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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 possession in Mhow  

City.  

5. In the written statement, the defendant disputed the right,  

title  and  interest  of  the  plaintiff,  and  denied  the  

relationship of landlord and tenant.  That apart, a further  

stand was taken that the appellant had no right under the  

M.P. Accommodation Control Act,  1961 (for brevity “the  

Act”) to file the suit for eviction.  It was set forth by the  

respondent-defendant that he was never a tenant under  

Kishorilal  and,  in  fact,  the  accommodation  was  in  a  

dilapidated  condition  and  a  ‘banjar’  land  and  the

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respondent was in possession for 18 to 19 years and it  

was to the knowledge of Kishorilal and his elder brother.  

For the purpose of business he had constructed a Gumti,  

got the gate fixed and when the business relating to sale  

of  furniture  commenced  there  was  no  objection  from  

Kishorilal  or  his  brother  or  any  family  member.   The  

possession,  as  put  forth  by  the  respondent,  was  

uninterrupted, peaceful and to the knowledge of Kishorilal  

who was the actual owner.  It was also set forth that when  

Kishorilal  desired  to  sell  the  premises,  he  was  put  to  

notice about the ownership of the defendant but he sold  

the property without obtaining sale consideration with the  

sole intention to obtain possession by colluding with the  

appellant-plaintiff.  Alternatively, it was pleaded that the  

premises  is  situate  in  the  Cantonment  area  and  the  

Cantonment  Board  has  the  control  over  the  land  and  

neither  Kishorilal  nor  the appellant  had any title  to  the  

same.

6. The learned trial Judge framed as many as 26 issues.  The  

relevant issues are, whether the suit accommodation was

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taken  on  rent  by  the  defendant  for  running  his  wood  

business  in  the  year  1973  from  the  earlier  landlord  

Kishorilal;  whether  defendant  is  in  continuous,  

unobstructed  and  peaceful  possession  since  18  years  

which  was  within  the  knowledge of  Kishorilal,  his  elder  

brother and their family members; whether defendant had  

become  owner  of  the  suit  accommodation  by  way  of  

adverse possession; and whether the sale deed had been  

executed without any consideration for causing damage  

to the title of defendant.  

7. The learned trial Judge, on the basis of evidence brought  

on record, came to hold that the sale deed executed by  

Kishorilal in favour of the appellant was without any sale  

consideration; that the relationship of landlord and tenant  

between the parties had not been established; and that  

the  respondent  had  become  the  owner  of  the  suit  

accommodation  on  the  basis  of  adverse  possession.  

Being of this view, the trial court dismissed the suit.

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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 for  possession.   To  

arrive at the said conclusion he placed reliance on Punia

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Pillai  vs.  Panai  Minor  through  Pandiya  Thevan1,  

Bhagwati  Prasad  v.  Chandramaul2 and  Amulya  

Ratan Mukherjee and ors. V. Kali Pada Tah and ors.3

9. Facing  failure  before  the  appellate  court  the  defendant  

preferred Second Appeal No. 33 of 1995 before the High  

Court.   The  appeal  was  admitted  on  the  following  

substantial questions of law: -

“(1) Whether a decree could be passed in favour  of plaintiff  though such plaintiff  fails to establish  the relationship of landlord and tenant?

(2) Whether  the  1st Appellate  Court  committed  the error of law in pronouncing the error of law in  pronouncing the judgment and decree on question  of title? And

(3) Whether the 1st Appellate Court has erred in  law  in  holding  that  the  possession  of  the  defendant is  not  proved and that  the defendant  has not acquired the title by adverse possession?”

10. The learned single Judge by judgment dated 8.2.2008  

adverted to Sections 12(1)(a) and 12(1)(e) of the Act and  

came to hold that once the plaintiff had failed to establish  

the relationship of landlord and tenant which is the  sine  

1 AIR 1947 Madras 282 2 AIR 1966 SC 735 3 AIR 1975 Cal 200

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qua non in a suit for eviction, the plaintiff could not have  

fallen back on his title to seek eviction of the tenant.  Be it  

noted,  the  learned  single  Judge  placed  reliance  upon  

Rajendra  Tiwary  v.  Basudeo  Prasad  and  another4  

wherein  the  decision  in  Bhagwati  Prasad  (supra)  had  

been distinguished.  The learned single Judge dislodged  

the judgment and decree passed by the lower appellate  

court and affirmed that of the learned trial Judge.

11. We have heard Mr. A.K. Chitale, learned senior counsel  

appearing for the appellant and Mr. Puneet Jain, learned  

counsel appearing for the respondent.

12. Questioning the legal acceptableness of the decision of  

the High Court the learned senior counsel has raised the  

following contentions: -

(a) The learned single Judge has erroneously opined that a  

suit cannot be decreed by civil court for possession on the  

basis  of  general  title  even  if  the  landlord-tenant  

relationship  is  not  proved.   A  manifest  error  has  been  

4 AIR 2002 SC 136

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committed by the learned Judge not following the law laid  

down in Bhagwati Prasad (supra) which is applicable on  

all fours to the case at hand, solely on the ground that the  

said  decision  has  been  distinguished  in  Rajendra  

Tiwary’s case.

(b) Though three substantial questions of law were framed,  

yet the learned single Judge without considering all  the  

questionss  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  reappreciation  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.

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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  

based on title, and once the relationship of landlord and  

tenant  is  not  proven  there  cannot  be  a  decree  for  

eviction.

(ii) The High Court has correctly distinguished the decision  

rendered  in  Bhagwati  Prasad (supra)  in  Rajendra  

Tiwary (supra)  as  the  law  laid  down  in  Bhagwati  

Prasad is  not  applicable  to  the  present  case  and  

hence, the submission raised on behalf of the appellant  

that once the right, title and interest is established, on

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the basis of general title, possession can be recovered  

is unacceptable.

(iii) The  alternative  submission  that  liberty  should  be  

granted to amend the plaint for inclusion of the relief  

for recovery of possession would convert the suit from  

one for eviction simpliciter to another for right, title and  

interest  and  recovery  of  possession  which  is  

impermissible. That apart, when the suit was dismissed  

and  the  controversy  travelled  to  appellate  court  the  

plaintiff was aware of the whole situation but chose not  

to seek the alternative relief that was available which is  

presently barred by limitation.  It is well settled in law  

that  the  Court  should  decline  to  allow  the  prayer  to  

amend the plaint if a fresh suit based on the amended  

claim  would  be  barred  by  limitation  on  the  date  of  

application.   

14. At the very outset, we may straight away proceed to  

state that the finding returned by the courts below that  

has been concurred by the High Court to the effect that

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there is  no relationship of landlord and tenant between  

the  parties  is  absolutely  impeccable  and,  in  fact,  the  

legality  and  propriety  of  the  said  finding  has  not  been  

assailed by the learned senior counsel for the appellant.  

As far as right, title and interest is concerned, the learned  

trial Judge had not believed the sale deed executed by the  

vendor of the appellant-plaintiff in his favour for lack of  

consideration and also returned an affirmative finding that  

the defendant was in possession for long and hence, had  

acquired title by prescription.  The learned appellate Judge  

on reappreciation of the evidence brought on record had  

unsettled  the  findings  with  regard  to  the  title  of  the  

plaintiff as well as the acquisition of title by the defendant  

by way of adverse possession.  He had granted relief to  

the plaintiff on the ground that in a suit for eviction when  

the title was proven and assertion of adverse possession  

was negatived by the court, there could be a direction for  

delivery  of  possession.   As  has  been stated  earlier  the  

High Court has reversed the same by distinguishing the

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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 the

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plaintiff for ejectment as well as for rent.  The learned trial  

Judge held that the suit was competent and came to the  

conclusion that the plaintiff was entitled to a decree for  

ejectment as well as for rent.  The High Court agreed with  

the  trial  court  in  disbelieving  the  defendant’s  version  

about the construction of the house and about the terms  

and conditions on which he had been let into possession.  

The  High  Court  opined  that  the  defendant  must  be  

deemed to  have been in  possession of  the  house as  a  

licensee  and  accordingly  opined  that  a  decree  for  

ejectment  should  be  passed.   Dealing  with  various  

contentions raised before this Court it was ruled that the  

defendant could  not  have taken any other  plea barring  

that  of  a  licensee in  view of  the pleadings already put  

forth and the evidence already adduced.  In that context,  

this Court opined that the High Court had correctly relied  

upon the earlier Full  Bench decision in  Abdul Ghani  v.  

Musammat  Babni5 and  Balmukund  v.  Dalu6.   An  

opinion was expressed by this Court that once the finding  

5 25 All 256 6 25 All 498

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was returned that the defendant was in possession as a  

licensee, there was no difficulty in affirming the decree for  

ejectment, even though the plaintiff had originally claimed  

ejectment on the ground of tenancy and not specifically  

on the ground of licence.  In that context it was observed  

thus: -

“15. ...  In the present case, having regard to all  the  facts,  we  are  unable  to  hold  that  the  High  Court erred in confirming the decree for ejectment  passes by the trial Court on the ground that the  defendant was in possession of the suit premises  as  a  licensee.  In  this  case,  the  High  Court  was  obviously impressed by the thought that once the  defendant was shown to be in possession of the  suit  premises as a licensee,  it  would be built  to  require the plaintiff to file another suit against the  defendant for ejectment on that basis. We are not  prepared to hold that in adopting this approach in  the circumstances of this case, the High Court can  be said to have gone wrong in law.”

16. Before  we  proceed  to  state  the  ratio  in  Rajendra  

Tiwary’s case, we think it seemly to advert to the principle  

stated  in  Biswanath  Agarwalla  v.  Sabitri  Bera  and  

others7 as the same has been strongly relied upon by the  

learned senior counsel for the appellant.  In the said case,  

the question that was posed is whether a civil  court can  7 (2009) 15 SCC 693

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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

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entitled  to  raise  a  contention  that  he  had  acquired  

indefeasible  title  by  adverse  possession.   The  Court  

referred to the decision in Bhagwati Prasad (supra)  and,  

eventually, came to hold as follows: -

“27. The  question  as  to  whether  the  defendant  acquired  title  by  adverse  possession  was  a  plausible plea.  He, in fact, raised the same before  the appellate court.   Submission before the first  appellate  court  by  the  defendant  that  he  had  acquired title by adverse possession was merely  argumentative  in  nature  as  neither  there  was  a  pleading nor there was an issue.  The learned trial  court had no occasion to go into the said question.  We, therefore, are of the opinion that in a case of  this nature an issue was required to be framed.”

Thereafter,  the  two-Judge Bench issued  the  following  

directions: -

“29. However, we are of the opinion that keeping  in  view  the  peculiar  facts  and  circumstances  of  this case and as the plaintiffs have filed the suit as  far back as in the year 1990, the interest of justice  should  be  subserved  if  we  in  exercise  of  our  jurisdiction under Article 142 of the Constitution of  India issue the following directions with a view to  do complete justice to the parties.

(i) The plaintiffs may file an application for  grant of leave to amend their plaint so  as to enable them to pray for a decree

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for  eviction  of  the  defendant  on  the  ground that he is a trespasser.

(ii) For  the  aforementioned  purpose,  he  shall pay the requisite court fee in terms  of the provisions of the Court Fees Act,  1870.

(iii) Such an application for grant of leave to  amend the  plaint  as  also  the requisite  amount of court fees should be tendered  within four weeks from date.

(iv) The appellant-defendant would, in such  an  event,  be  entitled  to  file  his  additional written statement.

(v) The learned  trial  Judge  shall  frame an  appropriate issue and the parties would  be  entitled  to  adduce  any  other  or  further evidence on such issue.

(vi) All the evidences brought on record by  the  parties  shall,  however,  be  considered by the court for the purposes  of disposal of the suit.

(vii) The  learned  trial  Judge  is  directed  to  dispose of  the suit  as expeditiously as  possible  and  preferably  within  three  months  from  the  date  of  filing  of  the  application by the plaintiffs in terms of  the aforementioned Direction (i).”

17. At this stage it is necessary to dwell upon the facet of  

applicability of the said authorities to the lis of the present  

nature.  As per the exposition of facts, the analysis made

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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.

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18. Presently,  we  shall  analyse  the  principles  stated  in  

Rajendra  Tiwary  (supra).   In  the  said  case  the  

respondent-plaintiff had filed a suit for eviction under the  

Bihar  Buildings  (Lease,  Rent  and  Eviction)  Control  Act,  

1982  on  many  a  ground.   The  learned  trial  Judge,  

appreciating the evidence on record,  dismissed the suit  

for  eviction  holding  that  there  was  no  relationship  of  

landlord  and  tenant  between  the  plaintiff  and  the  

defendant.  However, he had returned a finding that the  

plaintiff had title to the suit premises.  The appellate court  

affirmed  the  judgment  of  the  learned  trial  Judge  and  

dismissed the appeal.  In second appeal the High Court  

reversed the decisions of the courts below and allowed  

the appeal taking the view that a decree for eviction could  

be passed against the defendant on the basis of the title  

of the plaintiff and, accordingly, remanded the case to the  

first  appellate  court  on  the  ground  that  it  had  not  

recorded any finding on the question of the title of the  

parties.  It was contended before this Court that as the  

trial  court  was  exercising  limited  jurisdiction  under  the

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Rent Act, the question of title to the suit premises could  

not be decided inasmuch as that had to be done by a civil  

court in its ordinary jurisdiction and, therefore, the High  

Court  erred  in  law  in  remanding  the  case  to  the  first  

appellate court  for  deciding the question of  title  of  the  

plaintiff  and passing an equitable decree for eviction of  

the defendant.  The Court posed a question whether on  

the facts and in the circumstances of the case the High  

Court was right in law holding that an equitable decree for  

eviction of the defendant could be passed under Order VII  

Rule  7  of  the  Civil  Procedure  Code and remanding the  

case to the first appellate court for recording its finding on  

the question of title of the parties to the suit premises and  

for passing an equitable decree for eviction against the  

defendant if the plaintiffs were found to have title thereto.  

Answering the question the learned Judges proceeded to  

state thus: -

“It is evident that while dealing with the suit of the  plaintiffs for eviction of the defendant from the suit  premises under clauses (c) and (d) of sub-section  (1) of Section 11 of the Act, courts including the  High Court were exercising jurisdiction under the

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Act which is a special  enactment.   The  sine qua  non for  granting the relief  in the suit,  under the  Act,  is  that  between  the  plaintiffs  and  the  defendant 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  Prasad8 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 would be different.”

[Emphasis supplied]

8 AIR 1951 SC 177

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20. Thereafter,  the  learned  Judges  proceeded  to  express  

thus:

“16.  In  this  case  the  reason  for  denial  of  the  relief to the plaintiffs by the trial court and the  appellate court is that the very foundation of the  suit, namely, the plaintiffs are the landlords and  the  defendant  is  the  tenant,  has  been  concurrently found to be not established.  In any  event inquiry into title of the plaintiffs is beyond  the  scope  of  the  court  exercising  jurisdiction  under  the  Act.  That  being  the  position  the  impugned order of the High Court remanding the  case  to  the  first  appellate  court  for  recording  finding on the question of title of the parties, is  unwarranted  and  unsustainable.  Further,  as  pointed out above, in such a case the provisions  of Order VII Rule 7 are not attracted.”

[Underlining is ours]

21. At this juncture, we may fruitfully refer to the principles  

stated in Dr. Ranbir Singh v. Asharfi Lal9.  In the said  

case the Court was dealing with the case instituted by the  

landlord under Rajasthan Premises (Control  of  Rent and  

Eviction)  Act,  1950  for  eviction  of  the  tenant  who  had  

disputed  the  title  and  the  High  Court  had  decided  the  

judgment and decree of the courts below and dismissed  

the suit of the plaintiff seeking eviction.  While adverting  

9 (1995) 6 SCC 580

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to the issue of title the Court ruled that in a case where a  

plaintiff institutes a suit for eviction of his tenant based on  

the relationship of the landlord and tenant, the scope of  

the suit is very much limited in which a question of title  

cannot be gone into because the suit of the plaintiff would  

be dismissed even if he succeeds in proving his title but  

fails to establish the privity of contract of tenancy. In a  

suit for eviction based on such relationship the Court has  

only to decide whether the defendant is the tenant of the  

plaintiff  or  not,  though the question of  title  if  disputed,  

may  incidentally  be  gone  into,  in  connection  with  the  

primary question for determining the main question about  

the relationship between the litigating parties. In the said  

case the learned Judges referred to the authority in LIC v.  

India  Automobiles  &  Co.10 wherein  the  Court  had  

observed that in a suit for eviction between the landlord  

and tenant, the Court will take only a prima facie decision  

on the collateral  issue as to whether the applicant was  

landlord.  If  the  Court  finds  existence  of  relationship  of  

10 (1990) 4 SCC 286

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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, the

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Court can decide the issue of title if a tenant disputes the  

same and the only purpose is to see whether the denial of  

title  of  the  landlord  by  the  tenant  is  bona  fide  in  the  

circumstances of the case.  We respectfully concur with  

the aforesaid view and we have no hesitation in holding  

that the dictum laid down in  Bhagwati Prasad  (supra)  

and Bishwanath Agarwalla (supra) are distinguishable,  

for  in  the  said  cases  the  suits  were  filed  under  the  

Transfer of Property Act where the equitable relief under  

Order VII Rule 7 could be granted.

23. At this juncture, we are obliged to state that it would  

depend  upon  the  Scheme  of  the  Act  whether  an  

alternative  relief  is  permissible  under  the  Act.   In  

Rajendra Tiwari’s  case the learned Judges, taking into  

consideration the width of the definition of the “landlord”  

and “tenant” under the Bihar Buildings (Lease, Rent and  

Eviction)  Control  Act,  1982,  had expressed the opinion.  

The dictionary clause under the Act,  with which we are  

concerned herein, uses similar expression.  Thus, a limited  

enquiry  pertaining  to  the  status  of  the  parties,  i.e.,

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relationship  of  landlord  and  tenant  could  have  been  

undertaken.  Once a finding was recorded that there was  

no relationship of landlord and tenant under the Scheme  

of the Act, there was no necessity to enter into an enquiry  

with regard to the title of the plaintiff based on the sale  

deed or the title of the defendant as put forth by way of  

assertion  of  long  possession.    Similarly,  the  learned  

appellate Judge while upholding the finding of the learned  

trial Judge that there was no relationship of landlord and  

tenant  between  the  parties,  there  was  no  warrant  to  

reappreciate  the  evidence  to  overturn  any  other  

conclusion.  The High Court is justified to the extent that  

no equitable relief  could be granted in a suit  instituted  

under  the  Act.   But,  it  has  committed  an  illegality  by  

affirming the judgment and decree passed by the learned  

trial  Judge  because  by  such  affirmation  the  defendant  

becomes the owner of the premises by acquisition of title  

by prescription.   When such an enquiry could not have  

been  entered  upon  and  no  finding  could  have  been  

recorded and,  in  fact,  the High Court  has  correctly  not

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dwelled upon it, the impugned judgment to that extent is  

vulnerable  and  accordingly  we  set  aside  the  said  

affirmation.

24. Presently we shall proceed to address ourselves, which  

is necessary, 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

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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  

already decided the issue of adverse possession in favour  

of  the  defendant,  though  it  had  neither  jurisdiction  to  

enquire into the title nor that of perfection of title by way  

of adverse possession as raised by the defendant.  Under  

these  circumstances  we  are  disposed to  think  that  the  

plaintiff is entitled under law to file a fresh suit for title  

and recovery of possession and such other reliefs as the  

law permits.   

25. At this juncture, we think it apt to clarify the position,  

for  if  we  leave  at  this  when  a  fresh  suit  is  filed  the  

defendant would be in a position to advance a plea that  

the right of the plaintiff had been extinguished as he had  

not  filed the  suit  for  recovery of  possession within  the  

time  allowed  by  law.   It  is  evincible  that  the  suit  for

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eviction was instituted on 21.3.1978 and if  the time is  

computed  from  that  day  the  suit  for  which  we  have  

granted liberty would definitely be barred by limitation.  

Thus,  grant  of  liberty by us  would be absolutely  futile.  

Hence, we think it imperative to state the legal position  

as to why we have granted liberty to the plaintiff.   We  

may hasten to add that we have affirmed the judgment of  

the High Court only to the extent that as the relationship  

of landlord and tenant was not established the defendant  

was not liable for eviction under the Act.   The issue of  

right, title and interest is definitely open.  The appellant is  

required to establish the same in a fresh suit as required  

under law and the defendant is entitled to resist the same  

by putting forth all his stand and stance including the plea  

of  adverse  possession.   The  fulcrum  of  the  matter  is  

whether  the  institution  of  the  instant  suit  for  eviction  

under  the  Act  would  arrest  of  running  of  time  regard  

being had to the concept of adverse possession as well as  

the  concept  of  limitation.   The  conception  of  adverse  

possession  fundamentally  contemplates  a  hostile

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possession by which there is a denial of title of the true  

owner.   By  virtue  of  remaining  in  possession  the  

possessor takes an adverse stance to the title of the true  

owner.  In fact, he disputes the same.  A mere possession  

or user or permissive possession does not remotely come  

near the spectrum of adverse possession.  Possession to  

be adverse has to be actual, open, notorious, exclusive  

and  continuous  for  the  requisite  frame  of  time  as  

provided in law so that the possessor perfects his title by  

adverse possession.  It has been held in Secy. Of State  

for India In Council  v. Debendra Lal Khan11 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  Sakina12 ,  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. 11 (1933-34) 61 IA 78 : AIR 1934 PC 23 12 AIR 1964 SC 1254

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27. In  Karnataka Board of Wakf  v.  Govt. of India13 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 continued over  

the  statutory  period.   Thereafter,  the  learned  Judges  

observed thus: -

“11.  ...  Plea of adverse possession is  not a pure  question of law but a blended one of fact and law.  Therefore, a person who claims adverse possession  should  show:  (a)  on  what  date  he  came  into  possession,  (b)  what  was  the  nature  of  his  possession, (c) whether the factum of possession  was  known to  the  other  party,  (d)  how long his  possession has continued, and (e) his possession  was  open  and  undisturbed.   A  person  pleading  adverse possession has no equities in his favour.  Since he is trying to defeat the rights of the true  owner, it is for him to clearly plead and establish  

13 (2004) 10 SCC 779

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all  facts  necessary  to  establish  his  adverse  possession.”

28. It is to be borne in mind that adverse possession, as a  

right, does not come in aid solely on the base that the  

owner loses his right to reclaim the property because of  

his willful neglect but also on account of the possessor’s  

constant positive intent to remain in possession.  It has  

been held in P.T. Munichikkanna Reddy and others v.  

Revamma and others14.   

29. Regard being had to the aforesaid concept of adverse  

possession, it is necessary to understand the basic policy  

underlying  the  statutes  of  limitation.   The  Acts  of  

Limitation  fundamentally  are  principles  relating  to  

“repose” or of “peace”.  In  Halsbury’s Laws of England,   

Fourth Edition, Volume 28,  Para 605 it  has been stated  

thus: -

“605.  Policy  of  the  Limitation  Acts. –  The  courts  have  expressed  at  least  three  differing  reasons  supporting  the  existence  of  statutes  of  limitation,  namely  (1)  that  long  dormant  claims  have more of cruelty than justice in them, (2) that  a  defendant  might  have  lost  the  evidence  to  

14 (2007) 6 SCC 59

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disprove a stale claim, and (3) that persons with  good causes of actions should pursue them with  reasonable diligence.”

30. These  principles  have  been  accepted  by  this  Court  

keeping  in  view  the  statutory  provisions  of  the  Indian  

Limitation Act.  The fundamental policy behind limitation  

is that if a person does not pursue his remedy within the  

specified time frame, the right to sue gets extinguished.  

In the present case the pivotal point is whether a good  

cause  because  a  litigant  cannot  deprive  the  benefit  

acquired  by  another  in  equity  by  his  own  inaction  and  

negligence,  as  assumed  by  the  plaintiff,  has  been  lost  

forever as he has not been able to prove the relationship  

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.

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Sultan  Jehan  Begum  and  Ors.  v.  Gul  Mohd.  and  

Ors.15 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  plaintiff's  right  to  be  put  in  possession relates back to the date of the suit.  

(4)  Section  28  of  the  Limitation  Act  merely  declares  when  the  right  of  the  person  out  of  possession is extinguished. It is not correct to say  that that section confers title on the person who  has  been  in  adverse  possession  for  a  certain  period.  There  is  no  law  which  provides  for  'conferral  of  title'  as  such  on  a  person  who has  been in adverse possession for whatever length of  time.  

(5)  When  it  is  said  that  the  person  in  adverse  possession 'has perfected his title', it only means  this.  Since  the  person  who  had  the  right  of  possession but allowed his right to be extinguished  by his  inaction,  he cannot obtain the possession  

15 AIR 1973 MP 72

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from the person in adverse possession, and, as its  necessary corollary the person who is in adverse  possession will  be entitled to hold his possession  against  the  other  not  in  possession,  on the  well  settled rule of law that possession of one person  cannot be disturbed by any person except one who  has a better title.”  

32. In Sultan Khan s/o Jugge Khan v. State of Madhya  

Pradesh and another16 a proceeding was initiated for  

eviction of the plaintiff under Section 248 of the M.P. Land  

Revenue Code, 1959.  Facing eviction plaintiff filed a suit  

for  declaration  of  his  right,  title  and  interest  on  the  

bedrock of adverse possession.  His claim was that he had  

been in uninterrupted possession for more than 30 years.  

Repelling the contention the learned Judge observed thus:  

“It must, therefore, be accepted that filing of the  suit  for  recovery  of  possession,  by  itself,  is  sufficient  to  arrest  the  period  of  adverse  possession and a decree for possession could be  passed irrespective of the time taken in deciding  the  suit.  If  this  principle  is  applied  to  the  proceedings  under  Section  248  of  the  Code,  it  must  be  held  that  in  case  a  person  has  not  perfected  his  title  by  adverse  possession  before  start of the proceedings, he cannot perfect his title  during the pendency of the proceedings. Adverse  possession  of  the  person  in  possession  must  be  deemed  to  have  been  arrested  by  initiation  of  these proceedings.”

16 1991 MPLJ 81

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33. We  have  referred  to  the  aforesaid  pronouncements  

since  they  have been approved by  this  Court  in  Babu  

Khan and others v. Nazim Khan (dead) by L.Rs. and  

others17 wherein  after  referring  to  the  aforesaid  two  

decisions  and  the  decision  in  Ragho  Prasad  v.  P.N.  

Agarwal18 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  

17 AIR 2001 SC 1740 18 1969 All LJ 975

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inherent  jurisdiction  to  pass  a  decree  for  delivery  of  

possession.  It showed the intention of the plaintiff to act  

and  to  take  back  the  possession.   Under  these  

circumstances, after the institution of the suit, the time for  

acquiring title by adverse possession has been arrested or  

remained  in  a  state  of  suspension  till  the  entire  

proceedings  arising  out  of  suit  are  terminated.   Be  it  

ingeminated  that  if  by  the  date  of  present  suit  the  

defendant  had  already  perfected  title  by  adverse  

possession that would stand on a different footing.

35. In  view  of  the  aforesaid  analysis,  we  permit  the  

appellant-plaintiff to institute a suit as stated in paragraph  

24 within a period of two months from today.    

36. Resultantly, the appeal is allowed leaving the parties to  

bear their respective costs.     

……………………………….J. [Anil R. Dave]

……………………………….J.

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New Delhi;         [Dipak Misra]

November 13, 2013.