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Thursday, October 29, 2015

Suit for Declaration of title by adverse possession was dismissed and became final - Suit for declaration of title and recovery of possession by the defendants was decreed - Appeallant court confirmed the same but High court dismissed the suit as the permissive possession turned as adverse possession from the date of final dismissal of his Appeal = 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 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.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.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 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. 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 of the High Court and restore the orders of the courts below decreeing the suits (O.S. Nos.760 and 761 of 1996).

                                                              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 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 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.


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 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  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 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.

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