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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NOS.2261-2262 OF 2012  

MOHAMMED YASSIN     ...APPELLANT

VERSUS

RAMIZABI ETC. ETC.      ...RESPONDENTS

WITH

CONTEMPT PETITION (C) NO.485-486 OF 2011 IN

CIVIL APPEAL NOS.2261-2262 OF 2012   

J U  D G M E N T

RANJAN GOGOI, J.

1. Aggrieved by the impugned judgment and order dated  

26th February, 2010 passed by the High Court in Second  

Appeal reversing the decrees passed in favour of the plaintiff  

by the courts below the present appeals have been lodged  

by the plaintiff in the suits being O.S. No.760 of 1996 and  

eviction suit being O.S. No.761 of 1996. The facts in brief

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are as follows:

2. The  respondents  in  the  two  appeals  before  us  as  

plaintiff Nos.5 and 6, along with four others, had instituted  

a suit [O.S. No.295 of 1981] against the appellant and other  

co-owners for declaration of title and injunction on the basis  

of  adverse  possession.   The  suit  was  dismissed  by  the  

learned trial Court on 1st October, 1982 and the said decree  

of dismissal was affirmed by the First Appellate Court on  

30th March,  1984.  The  aforesaid  judgment  has  attained  

finality in law inasmuch as it was not put to any further  

challenge.  The  dismissal  of  the  suit  in  question i.e.  O.S.  

No.295 of 1981 was founded on the principal basis that the  

plaintiffs therein (respondents in the present appeals) could  

not  establish  that  they  had  acquired  title  by  continuous  

possession which was adverse in character.

3.  Thereafter,  the  present  appellant,  as  the  plaintiff,  

instituted a suit i.e. O.S. No.551 of 1983 for eviction of four  

of the plaintiffs who had filed O.S. No.295 of 1981.  The said  

suit was decreed and the said decree was confirmed by the  

High Court in Second Appeal No.1854 of 1991. Pursuant to

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the said decree the appellant had taken possession of the  

suit property.   

4. As part of the suit property remained in possession of  

the co-sharers who executed a release deed in favour of the  

present appellant on 3rd June, 1994, the appellant, as the  

plaintiff,  after issuing legal notice instituted O.S. Nos.760  

and 761 of 1996 against the respondents for declaration of  

title and recovery of possession of the property mentioned in  

the  schedule  to  the  suits.  Both  these  respondents,  as  

noticed, were the plaintiff Nos. 6 and 5 respectively in Suit  

No.295 of 1981.     

5. The learned trial  Court as well  as the first  appellate  

Court decreed both the suits filed by the appellant-plaintiff  

on the ground that the issues therein stood concluded by  

the  findings  in  the  earlier  suit  i.e.  O.S.  No.295 of  1981.  

Aggrieved,  the  respondents instituted the Second Appeals  

wherein the impugned order has been passed.   

6. We have heard the learned counsels of the parties.

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7. A reading of the orders of the High Court would go to  

show  that  the  primary  ground  on  which  the  High  court  

thought it proper to reverse the decrees passed by the two  

courts below is that though possession of the respondents  

may have been permissive initially, after 30th March, 1984  

i.e. the date on which the decree in O.S. No.295 of 1981  

became  final,  the  possession  of  the  respondents,  which  

continued, was adverse to the appellant and as the suits  

were filed on 5th September, 1996 i.e. after expiry of period  

of  12 years from 30th March,  1984 the respondents have  

perfected their title by adverse possession. Accordingly, the  

reversal orders were passed by the High Court.   

8. To  counter  the  submissions  advanced  by  Shri  Vijay  

Hansaria,  learned  Senior  Counsel  appearing  for  the  

appellant – plaintiff that there is no material on record to  

show  that  the  initial  permissive  possession  of  the  

respondents has become hostile to the appellant – plaintiff  

after 30th March, 1984 and that the conclusions recorded in  

this  regard by the High Court  are  plainly wrong,  Shri  V.  

Prabhakar, learned counsel for the respondents defendants

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has urged that the finding of the learned trial Court in O.S.  

No.295  of  1981  and  of  the  appeal  Court  in  the  appeal  

arising  therefrom  is  that  the  respondent  in  Civil  Appeal  

No.2261 of 2012, who was the plaintiff No.6 in the said suit,  

was  a  licensee.  Pointing  out  to  the  essential  difference  

between a lease and a licence and the rights of a lessor and  

those of a licensee and relying on a decision of this Court in  

Associated Hotels of India Ltd.   Vs.  R.N. Kapoor   (1960) 1  

SCR 368, Shri Prabhakar has urged that post 30th March,  

1984 the possession of the said respondent (plaintiff No.6 in  

O.S.  No.295  of  1981)  was  in  respect  of  the  property  as  

distinguished  from  the  earlier  possession  which  merely  

conveyed a right to enjoy the property.   

9. While the distinction between the lease and the licence  

need not detain a Court, we find no material to accept the  

aforesaid distinction made by Shri Prabhakar.  There is no  

material to hold that post 30th March, 1984, the nature of  

possession of the respondent was, in any way, different from  

the earlier possession or that such possession was adverse.  

It also relevant to be noticed that insofar as the respondent

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in Civil Appeal No.2262 of 2012 is concerned (plaintiff No.5  

in O.S No.295 of 1981) the finding of the learned Courts is  

that  said  respondent  was  a  tenant  under  the  appellant-

plaintiff.  

10. Shri Prabhakar has also urged that the finding of the  

learned trial court and the first appellate Court with regard  

to the title of the plaintiff  is without any basis.  It is also  

pointed  out  that  the  first  appellate  Court  had  verbatim  

reproduced the findings of  the learned trial  Court in this  

regard.  The reading of the judgments in question cannot  

sustain the above contention.  We have also noticed that the  

High Court had not discussed the aforesaid aspect of the  

case in the impugned judgments, notwithstanding which no  

grievance has been raised by the respondents defendants by  

filing a separate appeal or even by filing a cross objections  

in the present appeals.   

11. For the aforesaid reasons, we are of the view that the  

High Court was not correct in reversing the decrees passed  

by the learned trial Court which decrees were affirmed by  

the first appellate Court.  We, therefore, set aside the orders

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of the High Court and restore the orders of the courts below  

decreeing the suits (O.S. Nos.760 and 761 of 1996).

12. The appeals are allowed in the above terms.   

13. In the light of  the above,  the contempt petitions are  

also closed.  

…….....................,J.                                                (RANJAN GOGOI)

……....................,J.                                              (N.V. RAMANA)

NEW DELHI OCTOBER   29, 2015.