Bombay High Court by which the Government was directed to release 800 seats from the Government quota in favour of the writ petitioners (a group of private tour operators) under the Government’s PTO Policy for hajj 2011. Though the special leave petition was on a very limited issue, this Court by order dated February 17, 2012 decided to treat the case as a public interest litigation and to examine some of the major issues concerning the Hajj Policy of the Government of India. = We have dealt with all the major issues concerning the Hajj Policy of the Government of India. No useful purpose will be served by keeping this matter pending any further. We, accordingly, dispose of the special leave petition and close the proceedings. 33. Before putting down the records of the case, however, we would like to state that this Court is indebted to Mr. Goolam E. Vahanvati, the learned Attorney General. It was with his help and cooperation that this Court was able to deal with the issues under consideration to our fullest satisfaction. We would also like to put on record our appreciation for the assistance received from Mr. Huzefa Ahmadi, the learned amicus curiae, Mr. Haris Beeran, counsel appearing for the MEA and Mr. Khalid Arshad, learned counsel appearing for the Central Haj Committee. We are also thankful to Mr. Dushyant Dave, Mr. Fakhruddin, Mr. Colin Gonsalves, Mr. R. Venkataramani and all other counsel representing the different private parties. 35. With the disposal of this Special Leave Petition, all other connected matters, including transferred cases and intervention applications and IAs, are disposed of. 36. We direct the Joint Secretary Gulf and Hajj to give information in regard to the formation of the Committee for making long term arrangement for accommodations in Saudi Arabia to each of its members so that the Committee may start its work without delay.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO.28609/2011
UNION OF INDIA & ORS. …..Petitioner(s)
VERSUS
RAFIQUE SHAIKH BHIKAN & ORS. ….. Respondent(s)
WITH
T.C.(C) No. 90 of 2012
T.C.(C) No. 91 of 2012
W.P(C) No. 330 of 2012
W.P(C) No. 336 of 2012
T.C.(C) No. 92 of 2012
T.C.(C) No. 94 of 2012
T.C.(C) No. 93 of 2012
J U D G M E N T
Aftab Alam,J.
1. This special leave petition was filed by the Union of India against the
judgment and order passed by the Bombay High Court by which the
Government was directed to release 800 seats from the Government quota in
favour of the writ petitioners (a group of private tour operators) under the
Government’s PTO Policy for hajj 2011. Though the special leave petition was
on a very limited issue, this Court by order dated February 17, 2012 decided to
Page 2
2
treat the case as a public interest litigation and to examine some of the major
issues concerning the Hajj Policy of the Government of India. 
2. In the past two years this Court has passed orders on a number of issues
concerning the Government Hajj Policy. By order dated May 8, 2012, the Court
dealt with the issues of Hajj Subsidy and the Goodwill Hajj Delegation and
passed necessary directions in that regard. The directions on those issues are
reiterated and confirmed and directed to be followed strictly.
3. By the same order, the Court also approved the Government’s PTO Policy
for Hajj 2012.
4. By order dated July 23, 2012, the Court dealt with the quota of pilgrims
that the Central Government kept reserved for allotment at its discretion and
made directions in that regard. Those directions too are reiterated, confirmed
and directed to be followed strictly.
5. By order dated July 27, 2012, the Court pointed out to the Attorney
General that the PTO Policy for hajj 2012 did not allow the entry of anyone
without past experience and asked him to ensure that future PTO policies should
have sufficient room for the entry of fresh PTOs every year.
6. We now propose to deal with some other important issues in the Hajj
Policy of the Government of India.Page 3
3
7. Mr. Huzefa Ahmadi, senior advocate, who was appointed as Amicus
Curiae by order dated July 23, 2012, has painstakingly collected detailed
information from the Haj Committee of India and the Haj Committees of
different States. After scrutinizing the collected information with discernment
he presented for consideration the following issues that need to be addressed by
the Court:
i) Policy for Haj Committee of India Pilgrims.
ii) Time bound conduct of hajj process.
iii) Accommodation in Saudi Arabia.
iv) Air Fare
v) Grievance redressal
vi) Policy for Private Tour Operators.
We propose to take up all the issues in seriatim.
i). Policy for Haj Committee of India Pilgrims.
8. This relates to the policy in regard to pilgrims going for hajj through the
Haj Committee of India (in distinction to those going through private tour
operators). We accept the suggestion of the Amicus and hold that the practice of
framing Hajj Policy on an annual basis is quite ad-hoc and unsatisfactory and
must be replaced by a policy framework made for a period of five years. We,Page 4
4
accordingly, direct that the Hajj Policy that is to be framed this year would be
for a period of five years and would be called the Hajj Policy 2013 – 2017. The
proposed Hajj Policy will be posted on the website of the MEA inviting
objections, comments and suggestions within one month from the date it is
made available on the website. The policy would be given the final shape after
taking into account any objections, comments or suggestions that may be
worthy of acceptance within a further period of one month. The final policy so
framed shall remain valid and operative for a period of five years upto hajj 2017
and may be amended only in case of any change in the arrangements with the
Kingdom of Saudi Arabia as per the agreement entered into between the two
countries every year. The next five year policy will be similarly framed,
keeping in view any problems that might have been encountered in following
the previous policy and taking into account any improvements, innovations and
technological advances in order to add content and quality to the succeeding
policy and to make it perform better than the previous policy.
9. We further direct that the Hajj Policy should pay attention to special
needs of the lady pilgrims and it should be aimed at making the pilgrimage for
lady pilgrims as smooth and trouble-free as possible. Page 5
5
10. Mr. E.N.S. Anam, who addressed us in course of hearing of the matter,
seems to have some positive and constructive ideas that deserve to be taken into
consideration. Mr. Attorney General helpfully stated that he would ask Mr.
Haris Beeran to arrange a meeting between Mr. Anam and the concerned officer
in the MEA so that Mr. Anam’s suggestions may be taken into consideration in
the preparation of the draft Hajj Policy 2013 - 2017.
ii). Time bound conduct of hajj process.
11. Mr. Ahmadi submitted that the entire hajj process must be completed in a
time bound manner with permissible grace periods where practicable. He
submitted that the schedule for making applications, scrutiny etc. should be
published in advance with firm cut off dates in the Hajj Policy itself so that the
public at large is informed, well in advance, about those dates which should be
treated as inflexible and should not be extended at any cost. Mr. Ahmadi further
submitted that in order to complete the hajj process satisfactorily and effectively
while dealing with applications running into lakhs it was imperative to adhere to
the fixed time schedule, as in the case of admission to medical courses. He
invited our attention to a decision of this Court in Mridul Dhar v. Union of
India1
. In that decision this Court fixed a time schedule for post graduate and
super specialty course admissions (vide paragraph 31 of the judgment) and in
1
(2005) 2 SCC 65Page 6
6
paragraph 35 of the judgment directed for complete adherence to the time
schedule for grant of admission for post graduate courses.
12. We accept the submission of Amicus and direct that the time schedule
with regard to the hajj process as fixed by the Haj Committee of India should be
strictly adhered to and no authority or court should interfere in the process of
submission of applications, scrutiny and allotment of seats by the Haj
Committees, in case the interference would lead to disturbing the time schedule.
13. This direction is made keeping in view that in appropriate cases individual
interest must yield to the larger good and in the larger interest.
iii). Accommodation in Saudi Arabia.
14. Mr. Ahmadi submitted that the arrangement of accommodation of
pilgrims in Saudi Arabia made on an annual basis is both expensive and
inconvenient for the pilgrims and the arrangement for accommodation must be
made on a long term basis, at least for a period of five years, if not for ten or
more years. Mr. Ahmadi further submitted that though the proposal in that
regard was made long ago, nothing tangible has been achieved so far. He,
therefore, requested the Court to constitute a Committee to make arrangements
for the pilgrims’ accommodation in Saudi Arabia on a long term basis.Page 7
7
15. The learned Attorney General informed the Court that a Committee was
already constituted for the purpose of securing accommodations on a long term
basis. However, the Committee alluded to by the Attorney General consists only
of Government officials and apparently it has not been able to do any thing so
far. We feel that a Committee with some non-official members may be more
effective in this regard. We, accordingly, constitute a committee of the
following persons:
(i) Joint Secretary, Gulf and Hajj, Convenor;
(ii) Consul General of India in Jeddah;
(iii) Chairman of the Haj Committee of India;
(iv) Mr. Najeeb Jung, Vice Chancellor, Jamia Milia Islamia;
(v) Mrs. Syedda Hamid, Member, Planning Commission of India;
(vi) Mr. Haris Beeran, Counsel for the MEA;
16. We are informed that the position of the Chairman, Haj Committee of
India, is at present vacant. We direct that the rest of the Committee shall start
their work without awaiting the appointment of the Chairman, Haj Committee
of India and the Chairman would join the Committee as and when someone is
appointed to that office. The expenses incurred by the non-official members ofPage 8
8
the Committee in participating in the Committee’s work will be borne by the
Central Government.
17. We expect the Committee to make arrangements for stay of the Indian
pilgrims in Saudi Arabia by taking accommodations on lease for a term not less
than five years before the commencement of hajj 2013.
iv). Air Fare.
18. Mr. Ahmadi stated that admittedly the air fare charged by the Haj
Committee was much higher than the fare charged by private tour operators. He
submitted that the best fare could be secured by putting out a global tender. The
Attorney General, however, pointed out that in view of the constraints of the
agreement signed between the Government of India and the Kingdom of Saudi
Arabia and the official policy of the Saudi Government, a global tender may not
be possible. On this issue there is need to find a middle course and on hearing
the Amicus and the learned Attorney General, we think that the Government of
India can make a beginning in this regard by inviting tenders from the three
Saudi Airlines and all the Indian registered Airlines besides any other airlines
that may be eligible under the Saudi Policy.
19. We, direct, accordingly. Page 9
9
v). Grievance redressal.
20. We are informed that at present a Joint Secretary in the Ministry of
External Affairs is in-charge of Gulf and Hajj. We acknowledge that the
concerned officer is doing commendable work. But both the Gulf and the Hajj
involve huge responsibilities and it would be better if the responsibility of hajj
alone is assigned to a single Officer. We, therefore, advise the Government of
India to give the responsibility of the hajj alone to an Officer of the level of the
Joint Secretary. In any event, the hajj cell should also have a permanent and
effective grievance redressal mechanism and an officer of the level of Deputy
Secretary should be made in-charge of dealing with all grievances concerning
hajj received from any of the Haj Committees or any individual or group of
individuals.
21. Mr. Ahmadi submitted that at present the PTOs are required to submit
their applications before the Haj Committee of India where the applications are
scrutinized before those are taken up for registration with the Ministry of
External Affairs. He submitted that the Haj Committee has no concern with the
Private Tour Operators or their business. The Haj Committee is itself burdened
with lakhs of applications and it should be relieved of the responsibility of
receiving applications from the PTOs. We think the submission made by thePage 10
10
Amicus is reasonable. We accept the submission and direct the Ministry of
External Affairs to receive the applications from the PTOs directly or through
any other appropriate agency.
22. Mr. Ahmadi submitted that despite having been provided with very
inadequate resources and facilities both the Central Haj Committee and the Haj
Committees at the State level are discharging their responsibilities in a highly
commendable manner. We endorse the compliments paid by the Amicus to the
Haj Committees and expect them to work with greater sincerity and efficiency.
We also advise the Central Government to constitute a high powered committee
to review the functioning of the Haj Committee of India, the State Haj
Committees and the Union Territory Haj Committees and to consider the
suggestions or grievances made by those Committees with a view to improving
their performance.
vi). Policy for Private Tour Operators (PTOs)
23. The Attorney General presented before us the policy for registration of
Private Tour Operators – Hajj 2013.
24. The policy appears to have been framed with great care and application of
mind. It is framed in light of the stipulation made by the Saudi Government that
a Private Tour Operator should be allotted a quota of not less than 150 tickets.Page 11
11
Further, the policy presented before the Court accommodates most of the
suggestions that were made to the Attorney General by counsel representing the
different Private Tour Operators over the past months. Most importantly it
avoids creation of any monopoly and makes provision for entry of fresh players.
25. Here it may be stated that the certain provisions in the policy that tend to
relax the eligibility criteria for the PTOs were strongly opposed by one Sangam
Travels (I.A. No. 25 of 2013 and I.A. No. 29 of 2013). It was stated on behalf of
the applicant that in paragraph 3 of the PTO policy, category II, that makes
facilitating 50 Umrah pilgrims in a year for any five years as one of the
eligibility criterion is quite illegal. We have heard Mr. Rafi, counsel appearing
for the applicant and we have considered the submissions carefully.
26. We are of the view that the classification of PTOs to categories I & 2 is
fair and reasonable and strikes a proper balance between the needs of the
pilgrims and also making provision for new entrants on a caliberated basis. This
fully meets with our approval. We, thus, find no merit in the submissions and
the IAs are rejected.
27. On other aspects of the PTO policy we have heard, apart from the
Attorney General, counsel appearing for many Private Tour OperatorsPage 12
12
represented before the Court and in particular Mr. Dushyant Dave, senior
advocate appearing for Rafique Shaikh Bhikan (Respondent No.1).
28. Having heard the Attorney General and the counsel appearing for the
different Private Tour Operators, we approve the policy presented by the
Attorney General with some slight modifications. The policy, approved after
modifications by this Court, is enclosed as Appendix-I and forms part of this
order. The approved policy will be called Policy for Private Tour Operators for
hajj 2013-2017. It shall remain valid for five years and shall not be questioned
before any court or authority.
29. Before concluding the order, we may state that some parties appearing
in-person and some through lawyers also sought to assail before us the decision
of the Government of India that a person can perform hajj through the Haj
Committee only once in a lifetime. It needs to be made clear that the restriction
is not on the performance of hajj as such and any person having gone through
the Haj Committee may perform hajj as many times as he may like or may be
permitted by the Saudi Government, through Private Tour Operators and by his
own means. Mr. Beeran, learned counsel appearing for the MEA, submitted that
the decision has been relaxed and exceptions are made out in two cases. He
submitted that having regard to the difficulties faced by some lady pilgrims in
Page 13
13
findings Mehrams who had not done Hajj before, “repeaters” are allowed to
come in as Mehrams, subject to the condition that they would not be entitled to
hajj travel subsidy provided by the Government of India. Similarly, keeping in
view the problems encountered by pilgrims over 70 years of age in finding
specified relatives to accompany them who had not done hajj before, “repeaters”
were permitted in their case also subject to the condition that they would not be
entitled to the hajj travel subsidy provided by the Government of India.
30. However, the decision of the Government was assailed on a number of
grounds, even invoking Articles 25 and 14 of the Constitution of India.
31. We are, prima facie, satisfied that the decision of the Government of India
is not only legal and constitutional, but also fair and reasonable. We find no
substance in any of the grounds challenging the Government’s decision.
32. We have dealt with all the major issues concerning the Hajj Policy of the
Government of India. No useful purpose will be served by keeping this matter
pending any further. We, accordingly, dispose of the special leave petition and
close the proceedings.
33. Before putting down the records of the case, however, we would like to
state that this Court is indebted to Mr. Goolam E. Vahanvati, the learned
Page 14
14
Attorney General. It was with his help and cooperation that this Court was able
to deal with the issues under consideration to our fullest satisfaction.
34. We would also like to put on record our appreciation for the assistance
received from Mr. Huzefa Ahmadi, the learned amicus curiae, Mr. Haris
Beeran, counsel appearing for the MEA and Mr. Khalid Arshad, learned counsel
appearing for the Central Haj Committee. We are also thankful to Mr.
Dushyant Dave, Mr. Fakhruddin, Mr. Colin Gonsalves, Mr. R. Venkataramani
and all other counsel representing the different private parties.
35. With the disposal of this Special Leave Petition, all other connected
matters, including transferred cases and intervention applications and IAs, are
disposed of.
36. We direct the Joint Secretary Gulf and Hajj to give information in regard
to the formation of the Committee for making long term arrangement for
accommodations in Saudi Arabia to each of its members so that the Committee
may start its work without delay. 
……………………………….J
(Aftab Alam)
………………………………J
( Ranjana Prakash Desai )
New Delhi,Page 15
15
April 16, 2013Page 16
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Appendix
MINISTRY OF EXTERNAL AFFAIRS
(GULF & HAJ DIVISION)
***
Registration of Private Tour Operators - Haj 2013
The Government of Saudi Arabia has notified that Private Tour Operators (PTOs)
registered with the Government of India and involved in the preparation of the Hajj Pilgrimage
will be eligible for grant of Hajj group visas subject to fulfillment of other terms and conditions
as laid down by the Saudi Authorities.
2. Applications are invited from eligible PTOs for registration for Hajj – 2013. The
Eligibility Criteria are at Annexures A and B. The applications must be submitted in the
prescribed format (Annexure-C) directly to [MEA or any other agency appointed by it]
3. It is to be noted that Government of Saudi Arabia has stipulated that effective Hajj 2013,
a PTO should facilitate at least 150 pilgrims. Accordingly, the PTO Policy has been reframed.
For registration and allotment of quota of Hajj seats for Hajj 2013, interested PTOs may apply
under the following two categories:
Category I PTOs registered with MEA and facilitated Hajjis at least
for 7 Hajj operations or more.
Category II PTOs registered with MEA and facilitated Hajjis for at
least for 1 to 6 Hajj operations and PTOs which have
facilitated at least 50 Umrah pilgrims in a year for any
five years.
4. 70% of the overall quota of seats will be allocated to eligible PTOs under Category 3 (I)
and 30% to eligible PTOs under Category 3 (II). Distribution of seats among qualified PTOs will
be done as follows:
(a) 70% of the Hajj 2013 PTO seats (31,500) will be allocated to eligible PTOs under
category 3(I) at the rate of 150 per PTO. In case the number of PTOs exceeds 210, the
allocation of seats will be done on draw of lots. If the number of qualified PTOs is less
than 210, each PTO will be allocated 150 seats and surplus seats, if any, will be
distributed equally among them.
(b) 30% of Hajj 2013 PTO seats (9,000) will be allocated to eligible PTOs under category
3(II) at the rate of 150 seats per qualified PTO. If the number of qualified PTOs exceeds
90, the allocation of seats will be done by draw of lots. In case the number of PTOs is
less than 90, each PTO will be allocated 150 seats. Balance seats, if any, will be
transferred to Category I and distributed equally among them. A qualified PTO which
fails to get selected under the draw of lots in any year will be allocated 150 seats in the
ensuing year without Qurrah if it remains a qualified PTO. Page 17
17
5. This Policy is expected to remain valid for five years - 2013-2017 unless there are
substantive developments which affect it. The allocation of seats to qualified PTOs in each
category will be done every year on the basis of the overall quota of PTO seats specified in the
annual India – Saudi Arabia Hajj Agreement and the number of qualified PTOs remaining in
each category. The policy envisages cross category upward movement of PTOs from Category II
to Category I. A qualified PTO shall remain qualified unless it is otherwise disqualified either
by Government of India or by Government of Saudi Arabia for valid reasons. It is to be noted
that the PTOs who do not wish to take a minimum of 150 Hajjis or are unable to do so, need not
apply.
6. Last date for receipt of applications which should be addressed to [the MEA or any other
agency appointed by it]
***Page 18
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ANNEXURE-A
Terms and Conditions for Registration of
Private Tour Operators (PTOs) for Haj-2013
Each PTO should establish that it is a genuine and established Tour Operator having experience
in sending tourists/pilgrims abroad for which it should produce the following documents:
S.No Terms and Conditions
I All documents must be in the name of the applicant PTO and must be dated prior to
the last date for submission of the application.
Ii PTO must sign an agreement with each pilgrim indicating the services to be provided
to the pilgrim and charges payable. Services should include inter-alia medical
insurance, type of accommodation, transport facility, duration of stay of the pilgrims
in Saudi Arabia, etc.). A copy of model agreement to be signed with the pilgrims must
be attached with the application.
Iii Details of registration for service tax.
Iv Minimum Annual Turnover of INR One Crore during the financial year 2010-11 or
2011-12 along with Balance Sheet and Profit & Loss Account –duly audited by the
Statutory Auditors, Tax Audit Report and Income Tax Return (ITR) for financial years
2010-11 and 2011-12.
V Minimum office area of 250 Sq.ft. (Carpet area). (Supporting documents –drawing/lay
out plan approved by the competent authority of the State Government/Union
Territory). Lay out plan certified by Chartered Engineers/Architects will also be
accepted.
Vi Minimum capital of Rs. 15 lacs as on March 31, 2012 or March 31, 2013, duly
supported by the latest Balance Sheet- audited by the Statutory Auditors and Audit
Report.
Vii Proof of payment made through banking or other authorized channels towards
purchase of tickets and hiring of accommodation in Makkah/Madinah. Payments
towards purchase of tickets, hiring of accommodation for pilgrims in
Makkah/Madinah, by any other means, would not be accepted.
Viii PAN Card details ( PAN Card in the name of Proprietor will be accepted provided the
PTO is a Proprietor concern)
Ix PTO with adverse Police report or involved in criminal court cases will not be
c considered at all.
X Copies of registration Certificate issued to the PTO in support of their claim year wise
and PTO category wise.
Xi Contract for hiring of buildings for pilgrims and “Tasreeh” together with English
translations PTO category wise. (Please enclose rental receipts and a copy of lease
deed, duly signed with the Saudi owners).
Xii Copy of Munazzim Card and relevant Hajj visa pages of the Passport of the
Proprietor/Owner.Page 19
19
Xiii A security deposit of Rs. 25 lacs ( Rs. Twenty five lacs only) in the form of Fixed
Deposits with a Nationalised Bank valid till February 28, 2014, in favour of HCOI,
Mumbai.
Xiv A Demand Draft of INR 5000/- ( Rs. Five Thousand only) in favour of Haj Committee
of India, payable at Mumbai- to be submitted along with the application as non
refundable fee.
***Page 20
20
ANNEXURE- B
OTHER IMPORTANT INSTRUCTIONS/ GUIDELINES FOR HAJ-2013
I Application must be in the prescribed Performa (Annexure-C) and all documents must
be serially numbered. An index must be provided at the top of the applications
indicating details of documents enclosed.
Ii Applications that furnish wrong information or suppress any relevant information will
be summarily rejected and the applicant PTO will be blacklisted and its security
deposit forfeited, provided that blacklisting will not be ordered unless an opportunity
to show cause against such blacklisting is given to the PTO concerned.
Iii PTOs must furnish full information about their pilgrims to the CGI (Consulate General
of India), Jeddah and also upload it on the website of CGI- www.jeddah.com before
departure of pilgrims to Saudi Arabia.
Iv PTO must ensure vaccination and other medical checks as per requirement of the
Government of Saudi Arabia. Details are available on HCOI’s website
www.hajcommittee.com. All Pilgrims must carry health cards.
V PTO should be fully responsible for the stay, transportation and payment of
compulsory charges to the Authorities in Saudi Arabia. PTO should honour all terms
& conditions of the contract signed with the pilgrims and ensure that none of them is
left stranded.
Vi PTO should provide good quality Identity card, indicating name of the pilgrim and of
the PTO, Passport number and place of stay in Makkah/Madinah, to each pilgrim to be
worn around the neck whenever they leave the building.
Vii PTO should ensure that baggage of all their pilgrims are cleared before they leave the
Hajj Terminals in India/Saudi Arabia.
Viii If a pilgrim sent by a PTO is found begging in Saudi Arabia or declared Fuqra by
Saudi Authorities, the PTO will be blacklisted permanently and its security deposit
forfeited.
Ix Selling of Hajj quota seats to any other PTO is strictly prohibited. In case of receipt of
any complaint against any PTO indulging in such activity, the PTO would be
blacklisted permanently.
X It may kindly be noted that only one member of the family would be eligible for
registration for Haj-2013. Hence, only one member of family should apply for
registration. Family will include wife and dependent children. In case more than one
member of a family satisfy the eligibility conditions and if one of them is a lady, the
lady would be given preference for registration to the exclusion of others and if there is
no lady, preference would be given to the member who is the oldest in the business for
registration - Haj-2013. No applicant can apply in more than one PTO in his/her
capacity as Director/Partner/ Proprietor.
Xi PTO must submit only one application. If it is found that a PTO has submitted more
than one application in different names, all such applications would be rejected and all
such PTOs would be blacklisted and their security deposit would be forfeited.
Xii Without prejudice to the foregoing, all claims, disputes and differences shall be subject
to the jurisdictions of the Courts in New Delhi/ Mumbai.
Xiii All the terms and conditions laid down in Annexures A & B will also apply on PTOs
Page 21
21
that qualify under Category-II by virtue of facilitating a minimum of 50 Umrah
pilgrims in a year for any five years, but with the exception of the terms and conditions
contained under clauses (vii), (x), (xi), xii of Annexure-A. In addition, these PTOs are
also required to submit the proof of payment made through banking or any other
authorized Channels towards purchase of tickets and hiring of accommodation in
Makkah and Madina in respect of Umrah pilgrims facilitated by them in support of
their claim.
***Page 22
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ANNEXURE – C
Hajj 2013 - Application for Registration as Private Tour Operator (PTO)
1. Name of Private Tour Operator
2. Address of firm/ telephone, fax, e-mail and website address
(if there has been any change in address since Hajj – 2012 it may also be indicated)
3. Name of the firm’s representatives along with contact details who would be present
in the kingdom of Saudi Arabia during Haj-2013.
4. Number of employees (permanent as well as seasonal with break up), Number of
computers, and other office equipment.
5. Area of Office (Please attach supporting documents with photographs)
6. Whether the office is designated specifically for the Hajj/ Umrah or any other
business is also carried out from that premises.
7.
(i)Whether earlier registered with Ministry of External Affairs? Yes/No
(ii) If Yes, then enclose copy of certificates and copies of “Tasreeh” in support of
their claim year wise.
8. (i) Whether member of any Association of Hajj PTOs? If so provide details. Yes/No
(ii) Also indicate whether application is submitted through an Association.
9. PTOs should enclose copies of contracts for buildings hired for pilgrims, “Tasreeh”
with a certified English translation, IATA receipts, details of tickets, and payments
made towards purchase of tickets through banking channel in support of their claim.
(New Applicants are required to submit the number of Umrah pilgrims facilitated
during last five years with supporting documents - purchase of air – tickets, hiring of
accommodation in Makkah and Medinah and proof of payments made through
banking channels for this purpose)
10. Details of Fixed Deposit Receipt (FDR) – original to be enclosed. In case
application is through one of the Associations, indicate the details of fixed
deposit receipts submitted to the Association.
11. Details of bank draft for Rs. 5000/- in favour of Hajj Committee of India,
payable at Mumbai as non-refundable processing fee.
12. Maktab number and the name of the service provider in Saudi Arabia
(in case of previously registered PTOs).
13. Likely date of arrival of pilgrims in Kingdom of Saudi Arabia.
14. Likely date of departure of pilgrims from Kingdom of Saudi Arabia.
15. Type of Transport agreement/arrangements to be made for Pilgrims
(Coupon rate and route).
16. Arrangements for providing Orientation/ Training programmes.
17. Name, address and telephone numbers of local correspondent Company
in the Kingdom of Saudi Arabia.
18. (a) Whether the PTO has its branches in other places:
(b) if yes, please provide details:
(c) Have these branches also applied for registration separately?
If yes, please provide details.
21. Whether any case/complaint is registered against the PTO with police authorities.Page 23
23
Please provide complete details. If there is no such case/complaint, please attach an
affidavit in support of the claim.
(Seal and signature of the authorized person of the Company)
***

Limitation Act, 1963-Section 65 Explanation (a)-Claim of ownership of suit land by appellants after partition-Respondents claiming ownership by adverse possession and on ground of limitation-Courts below holding in favour of the respondent-Correctness of-Held, the co-sharer is not conferred a new title on partition but has an antecedent title-Hence, the limitation starts from the date the possession became adverse and not from the date of commencement of the right of ownership. Appellants-plaintiffs filed a suit before trial court for declaration of title over suit land, recovery of possession thereof and for permanent injunction from interference with their possession, against respondents- defendants. The appellants contended before the trial court that the suit land was an ancestral property belonging to the father-in-law of appellant no.1 and after his death, the property vested with the husband of appellant no.l being his son; that during the lifetime of the husband of appellant no.l, the respondents sought permission to make construction on the suit- land which was rejected by her husband; and that after the death of the husband, the respondents started constructing a compound wall without her permission. The respondents contended that they were in possession 9f the suit land for more than twelve years and that they were owners by adverse possession; and that the suit was barred by limitation. The trial court dismissed the suit on the ground that the appellants have failed to prove their title over the suit land. The first appellate court allowed the appeal of the appellants holding that they had identified the suit land and proved their title to the suit land. High Court, keeping the second appeal pending, remanded the matter to the first appellate court to decide the issue of limitation and adverse possession. On remand of the above issues, the first appellate court Held that on facts and evidence the respondents acquired title of suit land by way of adverse possession and that the suit was barred by law of limitation. The High Court confirmed the findings of the first appellate court and allowed the second appeal of the respondents. In appeal to the Court, the appellants contended that they became owners of the suit land as reversioners under registered deed of partition only in 1965 and consequently the suit filed in 1968 by the appellants was not barred by limitation; that the adverse possession in respect of suit land did not begin to run against the appellants prior to 1965; and that the respondents failed to prove three circumstances viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in claiming adverse possession. Citation: 2004 AIR 1893,2004(2 )SCR918 ,2004(3 )SCC376 ,2004(3 )SCALE172 ,2004(2 )Suppl.JT511 -Dismissing the appeal, the Court HELD: 1.1. Under the common law, there are two types of estates namely, estates in possession and estates in expectancy. Estates in remainder/reversion are estates in expectancy as opposed to estates in possession. Consequently, adverse possession against a life-tenant will not bar the reversioner/remainder from succeeding to the estate on the demise of the life-tenant. This is the reason for enacting explanation (a) to Article 65 of the said Act, which has no application to the facts of the case. [922-G-H] Ram Kisto Mandal and ANOTHER. v. Dhankisto Mandal, [1969] 1 SCR 342, distinguished. 1.2. Partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. In the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29.11.1965. Lastly, the appellants had asserted not only their own possession but also the possession of the husband of appellant no.l prior to his death. The starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse. [923-A-D] Hanamgowda v. Irgowda, AIR (1925) Bom 9, approved. Transfer of Property Act by Mula 9th Edition, referred to. 1.3. The defendants have to prove three elements viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in cases involving claim of adverse possession. However, in the present case there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. Moreover, in her deposition before the trial Court, appellant no.l had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of her husband; that during the life time of her husband, the defendants had told her husband to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, there is no reason to interfere in the matter. [923-E-H; 924-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6432 of 1998.

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CASE NO.:
Appeal (civil) 6432 of 1998
PETITIONER:
Vasantiben P. Nayak & Ors.
RESPONDENT:
Somnath M. Nayak & Ors.
DATE OF JUDGMENT: 09/03/2004
BENCH:
ASHOK BHAN & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
KAPADIA, J.
 Appellants (Plaintiffs) filed a suit bearing no.116 of
1968 in the court of Civil Judge, Narol for a declaration
that they were owners of ancestral house site land
bearing G.P. No.497 in Sarkhej, district Ahmedabad and
for recovery of possession thereof from the respondents
(defendants) and also for permanent injunction restraining
respondents from interfering with their possession over
the disputed land. According to the appellants, the suit
land was ancestral property belonging to father-in-law of
Vasantiben (appellant no.1) and after his death the
property came in possession of her husband. According
to the appellants, in the lifetime of the husband of
appellant no.1, the respondents used to tell the husband
of appellant no.1 to allow them to make construction on
the land. According to appellant no.1, her husband did
not permit the respondents to make construction till his
death, i.e. six years prior to the institution of the suit. That
even before his demise, the respondents used to tell
appellant no.1 to donate the land to the community which
she refused and soon thereafter the respondents started
constructing a compound wall without her permission. In
the circumstances, she filed a suit on 25th March, 1968 to
prevent the respondents from disturbing her possession.
 The respondents inter alia denied in the suit that the
husband of appellant no.1 was in possession of the suit
land till he died or that after his demise, the appellants
were in possession of the suit land. In the suit, they
contended that they were in possession of the suit land
for more than twelve years and that they were owners by
adverse possession. They also contended that the suit
was barred by limitation. In the suit, there was a dispute
regarding the identity of the land. In the suit, there was a
dispute regarding title of the appellants over the suit land.
By the judgment and order dated 10th November, 1975,
the trial court dismissed the suit on the ground that the
appellants have failed to prove their title over the suit
land. Being aggrieved, the appellants went by way of civil
appeal no.133 of 1976 to the District Court, Ahmedabad
which came to the conclusion that the appellants had
identified the suit land. Further, the District Court came to http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
the conclusion that the appellants had proved their title to
the suit land. Consequently, the appeal was allowed vide
judgment and order dated 27th March, 1978.
Being aggrieved, the respondents herein went by
way of second appeal under section 100 CPC to the High
Court being appeal no.360 of 1978. By judgment and
order dated 22nd January, 1997, the High Court came to
the conclusion that the lower appellate court could not
have passed the decree for possession in favour of the
appellants without deciding the issue of limitation and
adverse possession. Consequently, keeping the Second
Appeal pending before it, the High Court called for the
findings on the above two issues from the District Court,
Ahmedabad. On remand of the above issues, the District
Court found that the respondents were in possession
since 1934 as indicated by the books of accounts and
revenue receipts for payments made to its revenue
assessment. The District Court further found that the
respondents have been paying land revenue from 1940.
The District Court further found that the gram panchayat
had even permitted the respondents to construct the
compound wall vide a resolution (Ex.132). In the
circumstances, the District Court came to the conclusion
that the respondent had acquired title by way of adverse
possession. On the point of limitation, the District Court
found that the respondents were in possession from 1935
or in any event from 1941 whereas the suit has been filed
only on 25th March, 1968 for possession and
consequently the suit was barred by law of limitation.
Therefore, both the issues were decided in favour of the
respondents herein by the District Court vide judgment
dated 30th April, 1997. The High Court which was seized
of the second appeal no.360 of 1978 after hearing the
parties confirmed the findings of the District Court on
above two issues and accordingly disposed of the second
appeal vide impugned judgment dated 28th April, 1998.
Hence, the original plaintiffs have come by way of civil
appeal to this Court.
 Shri Ramesh Singh, learned counsel appearing on
behalf of the appellants submitted that the appellants
became owners of the suit land as reversioners under
registered deed of partition dated 29th November, 1965
and consequently the suit filed by the appellants was
neither barred by limitation nor by adverse possession.
He contended that the High Court had erred in holding
that adverse possession in respect of suit land begin to
run against the appellants prior to 29th November, 1965.
In this connection, he has placed reliance on explanation
(a) to Article 65 of the Limitation Act (hereinafter referred
to as "the said Act"). In support of his above argument,
learned counsel for the appellants has also placed
reliance on the judgment of this Court in the case of
Ram Kisto Mandal & Anr. v. Dhankisto Mandal
reported in [(1969) 1 SCR 342].
We do not find merit in the above argument
advanced on behalf of the appellants. In the case of Ram
Kisto Mandal & Anr. v. Dhankisto Mandal (supra), it
has been held by this Court that the right of the
reversioner to recover possession of the property within
twelve years from the death of the widow is not only
based on provisions of the limitation act but on the
principles of Hindu Law and the general principles that the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
right of a reversioner is in the nature of spes successionis
(estate in expectancy) and such reversioner does not
trace his title through the widow. Under the common law,
there are two types of estates namely, estates in
possession and estates in expectancy. Estates in
remainder/reversion are estates in expectancy as
opposed to estates in possession. Consequently,
adverse possession against a life-tenant will not bar the
reversioner/remainder from succeeding to the estate on
the demise of the life-tenant. This is the reason for
enacting explanation (a) to Article 65 of the said Act,
which has no application to the facts of this case.
 At this stage, it is important to bear in mind that
partition is really a process by which a joint enjoyment of
the property is transformed into an enjoyment severally.
In the case of partition, each co-sharer has an antecedent
title and, therefore, there is no conferment of a new title.
(See Transfer of Property Act by Mulla 9th Edition Page
77). In the circumstances, the appellants cannot be
heard to say that they became the owners of the property
only when the partition deed was executed on 29th
November, 1965. Lastly, the facts above-mentioned
show that the appellants had asserted not only their own
possession, they had also asserted the possession of
Prahladji (husband of appellant no.1 and father of
remaining appellants) prior to his death. In the case of
Hanamgowda v. Irgowda reported in [AIR 1925 Bom. 9],
it has been held that in cases of adverse possession, the
starting point of limitation does not commence from the
date when the right of ownership arises to the plaintiff but
it commences from the date when the defendants’
possession became adverse. Therefore, in the present
case, the starting point of limitation for adverse
possession cannot be taken as 29th November, 1965 and
one has to take the date when the respondents’
possession became adverse. For all the above reasons,
there is no merit in the above arguments advanced on
behalf of the appellants.
Shri Ramesh Singh, learned counsel appearing on
behalf of the appellants next contended that in the
present case the respondents have failed to prove the
ouster along with other three circumstances, namely,
hostile intention; long and uninterrupted possession; and
exercise of the right of exclusive ownership openly and to
the knowledge of the owner. We do not find any merit in
this argument. It is correct to say that the defendants
have to prove three elements mentioned above to
establish ouster in cases involving claim of adverse
possession. However, in the present case, there is a
concurrent finding of fact recorded by the courts below to
the effect that the respondents are in possession of the
suit land from 1935 or in any event from 1941; that they
have paid revenue cess from 1940; that they have paid
property taxes; that their names were recorded in the
revenue records and they were granted permission by the
panchayat to construct compound wall. Moreover, in her
deposition before the trial Court, appellant no.1 had
deposed that her husband had died six years prior to the
institution of suit; that the suit land was in possession of
her father-in-law and after his death it came in possession
of Prahlad (husband); that during the life time of Prahlad,
the defendants had told Prahlad to allow them to
construct a building on the land which he refused and that http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
the respondents constructed the compound wall without
their permission. In view of the above concurrent findings
of fact recorded by the courts below on the issue of
adverse possession, we do not see any reason to
interfere in the matter.
 For the aforestated reasons, civil appeal stands
dismissed, with no order as to costs.
25941

Letters Patent (as applicable to the High Court of Andhra Pradesh): Clause 10 - Letters Patent Appeal - Power of Division Bench of High Court - HELD: Power of Division Bench, hearing a Letters Patent appeal from judgment of a Single Judge in a first appeal, is not limited only to a question of law u/s 100, but it has the same power which the Single Judge has as a first appellate court in respect of both questions of fact and of law. Adverse Possession: Suit for recovery of possession - Defendants' pleas that they purchased the property and, alternatively, perfected title by adverse possession claiming to have come in possession under agreement of sale - HELD: Both the pleas have not been substantiated - Neither the purported sale deed nor the agreement of sale have been placed on record. Adverse possession - Ingredients of - Explained - HELD: Animus possidendi is a requisite ingredient of adverse possession - Mere possession does not ripen into possessory title until possessor holds property adverse to the title of true owner for a period of 12 years - The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that the possession was open and undisturbed - A person pleading adverse possession has no equities in his favour and he has to plead and establish clearly all necessary facts to establish adverse possession - Plea of adverse possession is not a pure question of law but a blended one of facts and law - Equities - Pleadings. Plaintiffs no. 1 and 2, the mother and the son, filed a suit against the brother and the sister of plaintiff no. 2 (defendants no. 1 and 2, respectively) for recovery of possession in respect of certain properties, including four acres of land pertaining to R.S. No. 44/3 (the land in dispute) situate in their village. Their case was that defendant No. 1 was looking after the land in dispute, but when he declined to deliver possession of the land in dispute, they filed a suit for recovery of possession and mesne profit. The plea of defendant no. 1 was that he purchased the land in dispute under a stamped agreement from `VR', the father of plaintiff no. 1 and husband of plaintiff no. 2, for Rs.1600/-; that he paid Rs.1,000/- to `VR' and a sum of Rs.225/- to one `BC' who was the tenant and in possession of the land in dispute and the said tenant relinquished his possession and delivered the land to defendant No. 1; and that he had perfected his title by adverse possession. Though no issue of adverse possession was framed, but the trial court dismissed the suit, holding that title to the plaintiffs even if proved, got extinguished by adverse possession. The appeal filed by the plaintiffs was dismissed by the Single Judge of the High Court. However, their Letters Patent Appeal was allowed by the Division Bench of the High Court and the suit was decreed. In the appeal filed by the heirs and legal representatives of defendant No.1, it was contended for the appellants that the concurrent findings of facts of the trial court and the appellate court ought not to have been upset by the Division Bench in Letters Patent Appeal; and that the appellants had perfected their title by adverse possession and the findings so recorded by the trial court and the appellate court ought not to have been interfered in Letters Patent Appeal.- Dismissing the appeal, the Court HELD: 1. The Division Bench of the High Court rightly held that the "power of the Division Bench hearing a Letters Patent appeal under Clause 10 from the judgment of a Single Judge in a first appeal is not limited only to a question of law u/s 100 of the Code of Civil Procedure, but it has the same power which the Single Judge has as a first appellate court in respect of both questions of fact and of law. [para 10] [932-E-F] Asha Devi v. Dukhi Sao 1975 (1) SCR611= AIR 1974 SC 2048: (1974) 2 SCC 492 - relied on. 2.1. Mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once he does that, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. [para 14] [935-B-D] 2.2. Claim by adverse possession has two basic elements, i.e., the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi, is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that the possession was open and undisturbed. [para 14] [935-E-F] T. Anjanappa v. Somalingappa 2006 (5 ) Suppl. SCR200 = (2006) 7 SCC 570 - relied on. 2.3. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, therefore, it is for him to plead and establish clearly all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law. [para 14] [935-G-H] Karnataka Board of Wakf vs. Government of India and Ors. 2004 (1) Suppl. SCR255 = (2004) 10 SCC 779 - relied on. 2.4. In the instant case, the appellants have miserably failed to prove that they have perfected their title by adverse possession. It is significant to note that initial plea of the appellants was that they had purchased the property from the original owner, alternatively, by virtue of agreement of sale they came in possession of the property. Both these pleas have not been substantiated. Neither the purported sale deed nor agreement of sale have been placed on record. [para 15] [936-B] 2.5. As regards the plea of adverse possession, the appellants' case is that out of the consideration money of Rs.1,600/-, defendant no. 1 paid Rs.1,000/- to the owner and on payment of Rs. 225/- to the tenant in possession, namely, `BC', he relinquished his possession. This relinquishment of possession by the tenant shall not enure to the benefit of the appellants against the true owner so as to accept their claim for adverse possession. The appellants are required to prove that their possession was adverse to the true owner. [para 15] [936-D] 2.6. The plea of the appellants on the basis of the purported order dated 18.2.1954 of the Settlement Officer directing for issuance of Patta in favour of defendant no. 1 also does not advance their case. It is not the appellants' case that plaintiffs were party before the Settlement Officer. Further, it is not in dispute that no Patta was issued in favour of the defendant no. 1, on the other hand, and in fact, rough Patta was issued in favour of plaintiff no. 2. Thus, the appellants have not proved the necessary ingredients to establish their title by adverse possession. The Division Bench of the High Court is absolutely right in rejecting the appellants' plea of adverse possession and decreeing the plaintiffs' suit. [para 15] [936-E-F] Case Law Reference: 1975 (1) SCR611 relied on para 10 2006 (5) Suppl. SCR200 relied on para 12 2004 (1) Suppl. SCR255 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6039 of 2003. From the Judgment & Order dated 19.12.2001 of the High Court of Andhra Pradesh at Hyderabad in LPA No. 438 of 1988. Ananga Bhattacharya, Rohit R. (for V.G. Pragasam) for the Appellants. Abid Ali Beeran, Neeru Vaid for the Respondent.

REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6039 OF 2003
Chatti Konati Rao & Ors. …. Appellants
 Versus
Palle Venkata Subba Rao …. Respondent
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. Plaintiff No. 1 is the son of plaintiff No. 2, whereas
original defendant Nos. 1 and 2 were brother and sister of the
second plaintiff. Both the defendants died during the
pendency of the suit. The heirs and legal representatives of the
first defendant were substituted in his place and they had
contested the suit. 2. Plaintiff filed the suit for recovery of possession in respect
of several properties mentioned in schedule of the plaint and
in the present appeal we are concerned with Schedule – I
property i.e. four acres of land pertaining to R.S. No. 44/3
situate at village Vijjeswaram, hereinafter referred to as the
land in dispute.
3. According to the plaintiffs their predecessor-in-interest
viz., one Venkata Ramana Rao, who happened to be the father
of plaintiff No. 1 and husband of plaintiff No. 2, was the owner
of land in dispute. Venkata Ramana Rao was a Government
employee and in his absence defendant No. 1 i.e. elder brother
of second plaintiff used to look after his property. Said
Venkata Ramana Rao died in the year 1948 and thereafter the
plaintiffs came back to the village and started looking after the
agricultural land including the land in dispute. Plaintiff’s case
further is that again in the year 1954 they shifted their
residence to Kakinada for education of the first plaintiff and
defendant No. 1 was asked to look after the land in dispute.
In the year 1974 when the defendant declined to deliver
2possession of the land in dispute, lawyer’s notice dated 6
th
April, 1974 was issued calling upon the defendants to hand
over the property. Defendant No. 1 responded to the notice by
his letter dated 27th May, 1974 denying the title of the
plaintiffs and claiming himself to be the owner of the property.
Plaintiffs thereafter filed the suit bearing O.S. No. 20 of 1974
in the Court of the Subordinate Judge, West Godavari District,
Kovvur for recovery of possession in respect of land in dispute
and for mesne profit.
4. In the written statement filed by defendant No. 1 his plea
was that he purchased the land in dispute under a stamped
agreement from Venkata Ramana Rao for a value of
Rs.1600/-. According to him he paid Rs.1,000/- to Venkata
Ramana Rao and a sum of Rs.225/- to one Bombothu
Chitteyya who was the tenant and in possession of the land in
dispute during 1943 and said tenant vide letter dated 16th
June, 1943 relinquished his possession and delivered the land
to defendant No. 1. It is further case of defendant No. 1 that
balance amount of Rs.400/- was sent by Money Order. After
3the death of Venkata Ramana Rao, the second plaintiff
claimed more money towards the sale of the land in dispute
and plaintiff No. 2 being the sister of defendant No. 1, a
further sum of Rs.500/- was paid to her vide receipt dated 14th
January, 1952 (Exh.B-4).
5. Plea of defendant No. 1 further is that on 6
th November,
1960 he filed an application before the Assistant Settlement
Officer for correction of rough patta issued in favour of second
plaintiff in 1959 and to substitute his name along with his
brother’s name in place of second plaintiff. In the application
defendant No. 1 categorically stated that on 18th February,
1954 the Settlement Officer directed issuance of patta of the
land in dispute along with other lands in their favour and he
was all through waiting for the issuance of patta. However,
according to defendant No. 1, in August, 1959 he came to
know that a rough patta was issued to second plaintiff
contrary to the decision of the Settlement Officer and
thereafter he filed an application on 7
th November, 1959 before
the Rough Patta Correction Officer informing him about
4variance between grant and the order and prayed that the
name of the second plaintiff be deleted from the patta and in
her place his name and that of his brother’s name be
substituted. According to defendant No. 1 he filed reminder
on 6
th November, 1960 but it was returned by the Assistant
Settlement Officer on 22
nd November, 1960 with certain
objections. Thereafter the first defendant did not present the
petition for substituting his name in the patta by deleting the
name of the second plaintiff. Further plea of the first
defendant was that he had perfected his title by adverse
possession.
6. On the basis of the pleadings of the parties the trial court
framed various issues; including the following issues :
“1. Whether the father of the 1
st plaintiff late
Venkata Ramana Rao died possessed of the
plaint schedule properties?
2.Whether any of the suit properties were
entrusted to any of the defendants in or about
the year 1952?
3.Whether sale of item I of the schedule
property to 1st defendant in 1943 is true?”
57. It is relevant here to state that no issue of adverse
possession was framed but on the basis of the materials on
record the trial court came to the conclusion that title to the
plaintiffs even if proved, gets extinguished by adverse
possession. It further held that defendant No. 1 is in
possession of the suit property and when considered along
with other documents, the same proves his title. The trial
court also observed that the plaintiff having not adduced any
oral evidence or filed any document to show that the property
was entrusted to defendant No. 1 for management, it is evident
that defendant No. 1 has title over the land in dispute. The
trial court further held that defendant No. 1 had purchased
the land in dispute and on these findings the trial court
dismissed the suit.
8. Plaintiffs, aggrieved by the judgment and decree of the
trial court, preferred appeal before the High Court and the
learned Single Judge by his judgment and decree dated
16.09.1987 dismissed the appeal. Plaintiffs thereafter
preferred Letters Patent Appeal No. 438 of 1988 and the
6Division Bench of the High Court by its judgment and decree
dated 19.12.2001 allowed the appeal; set aside the judgment
and decree of the trial court as well as of the appellate court
and decreed the suit. While doing so the High Court observed
as follows :
“From the documentary evidence available on
record, it cannot be said that the first defendant has
perfected his title to the property by adverse
possession. On the other hand, he tried to change
his version from time to time to suit his convenience
i.e., firstly, in the written statement he contended
that he had purchased the property from late
Venkata Ramana Rao and produced two letters said
to have been written by Venkata Ramana Rao,
whose writing is not at all tallying, and we have no
manner of doubt that these letters were brought
into existence by the first defendant in support of
his case. Secondly, the first defendant filed an
application in year 1964 before the Settlement
Officer contending that himself and his brothers are
Agraharamdars and are entitled to patta under
section 15 of the Estates Abolition Act, but he never
disclosed that he had purchased the land from his
brother-in-law. Though he obtained an order from
Assistant Settlement Officer in the year 1964, no
patta was issued to DI till the trial of the suit on the
other hand even as per his version rough patta was
issued in the name of 2
nd plaintiff, but he has not
taken any steps to get it cancelled. Now, he started
contending that he perfected title by adverse
possession. As he himself admitted that initially his
possession is permissive one as he was not paying
any rents and enjoying the property to himself to
exclusion of the land owners, he cannot contend
7that he perfected title by adverse possession; more
so in the light of Exs. B-5 and B-9 wherein both the
parties are fighting for patta after abolition of the
estate. In order to establish that the first defendant
had perfected his title to the property by adverse
possession, it requires more cogent proof, which is
not forthcoming in this case. On the other hand, if
we analyse the documentary evidence available on
record, the only conclusion we can arrive at is that
taking advantage of the near relationship between
him and the plaintiffs and their absence from the
village, the first defendant tried to create documents
to knock away the property. We have not discussed
the oral evidence for the simple reason that the
documentary evidence itself speaks of the falsehood
of the claim of defendants.”
9. Heirs and legal representatives of defendant No. 1,
aggrieved by the same, have preferred this appeal with leave of
the Court.
10. Mr. Ananga Bhattacharya, learned counsel appearing on
behalf of the appellants submits that the concurrent findings
of facts of the trial court and the appellate court ought not to
have been upset by the Division Bench in Letters Patent
appeal. We do not find any substance in the submission of
Mr. Bhattacharya. In fact, while setting aside the judgment
and decree of the trial court and the appellate court the
8Division Bench referred to the decision of this Court in the
case of Asha Devi v. Dukhi Sao [AIR 1974 SC 2048: (1974) 2
SCC 492], and came to the conclusion that the “power of the
Division Bench hearing a Letters Patent appeal under Clause
(10) from the judgment of a single Judge in first appeal is not
limited only to a question of law under Section 100 of the Code
of Civil Procedure, but it has the same power which the Single
Judge has as a first Appellate Court in respect of both
questions of fact and of law.” We are of the opinion that the
High Court was absolutely right in making the aforesaid
observation and accordingly we reject this submission of Mr.
Bhattacharya.
11. Mr. Bhattacharya, then submits that the appellants had
perfected their title by adverse possession and the findings so
recorded by the trial court and the appellate court ought not to
have been interfered in appeal. Mr. Abid Ali Beeran, learned
counsel appearing on behalf of the respondent, however,
submits that the finding recorded by the trial court and the
9appellate court being absolutely illegal, nothing prevented the
Division Bench of the High Court to set aside that finding.
12. We have bestowed our thoughtful consideration to the
submission advanced and we do not find any substance in the
submission of Mr. Bhattacharya. What is adverse possession,
on whom the burden of proof lie, the approach of the court
towards such plea etc. have been the subject matter of
decision in a large number of cases. In the case of T.
Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been
held that mere possession however long does not necessarily
mean that it is adverse to the true owner and the classical
requirement of acquisition of title by adverse possession is
that such possessions are in denial of the true owner’s title.
Relevant passage of the aforesaid judgment reads as follows :
“20. It is well-recognised proposition in law that
mere possession however long does not necessarily
mean that it is adverse to the true owner. Adverse
possession really means the hostile possession
which is expressly or impliedly in denial of title of
the true owner and in order to constitute adverse
possession the possession proved must be adequate
in continuity, in publicity and in extent so as to
show that it is adverse to the true owner. The
classical requirements of acquisition of title by
adverse possession are that such possession in
10denial of the true owner’s title must be peaceful,
open and continuous. The possession must be open
and hostile enough to be capable of being known by
the parties interested in the property, though it is
not necessary that there should be evidence of the
adverse possessor actually informing the real owner
of the former’s hostile action.”
13. What facts are required to prove adverse possession have
succinctly been enunciated by this Court in the case of
Karnataka Board of Wakf vs. Government of India and
Ors. (2004) 10 SCC 779. It has also been observed that a
person pleading adverse possession has no equities in his
favour and since such a person is trying to defeat the rights of
the true owner, it is for him to clearly plead and establish
necessary facts to establish his adverse possession.
Paragraph 11 of the judgment which is relevant for the
purpose reads as follows :
“11. In the eye of the law, an owner would be
deemed to be in possession of a property so long as
there is no intrusion. Non-use of the property by the
owner even for a long time won’t affect his title. But
the position will be altered when another person
takes possession of the property and asserts a right
over it. 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”,
11that 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. (See S.M. Karim
v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi
(1993) 4 SCC 375 and D.N. Venkatarayappa v. State
of Karnataka (1997) 7 SCC 567) Physical fact of
exclusive possession and the animus possidendi to
hold as owner in exclusion to the actual owner are
the most important factors that are to be accounted
in cases of this nature. 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 all
facts necessary to establish his adverse possession.
[Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma
(1996) 8 SCC 128]”
14. In view of the several authorities of this Court, few
whereof have been referred above, what can safely be said that
mere possession however long does not necessarily mean that
it is adverse to the true owner. It means hostile possession
which is expressly or impliedly in denial of the title of the true
owner and in order to constitute adverse possession the
possession must be adequate in continuity, in
12publicity and in extent so as to show that it is adverse to the
true owner. The possession must be open and hostile enough
so that it is known by the parties interested in the property.
The plaintiff is bound to prove his title as also possession
within 12 years and once the plaintiff proves his title, the
burden shifts on the defendant to establish that he has
perfected his title by adverse possession. Claim by adverse
possession has two basic elements i.e. the possession of the
defendant should be adverse to the plaintiff and the defendant
must continue to remain in possession for a period of 12 years
thereafter. Animus possidendi as is well known a requisite
ingredient of adverse possession. Mere possession does not
ripen into possessory title until possessor holds property
adverse to the title of the true owner for the said purpose. The
person who claims adverse possession is required to establish
the date on which he came in possession, nature of
possession, the factum of possession, knowledge to the true
owner, duration of possession and possession was open and
undisturbed. A person pleading adverse possession has no
equities in his favour as he is trying to defeat the rights of the
13true owner and, hence, it is for him to clearly plead and
establish all facts necessary to establish adverse possession.
The courts always take unkind view towards statutes of
limitation overriding property rights. Plea of adverse
possession is not a pure question of law but a blended one of
fact and law.
15. Bearing in mind the principles aforesaid when we
proceed to consider the facts of this case, we find that
appellants have miserably failed to prove that they have
perfected their title by adverse possession. It is worth
mentioning here that initial plea of the appellant was that they
had purchased the property from the original owner,
alternatively by virtue of agreement to sale they came in
possession of the property. Both these pleas have not been
substantiated. Neither the purported sale deed nor agreement
to sale have been placed on record. As regards the plea of
adverse possession, appellants’ case is that out of the
consideration money of Rs.1,600/-, Rs.1,000/- was paid to the
14real owner and on payment of Rs. 225/- to the tenant in
possession namely Bombothu Chitteyya, he relinquished his
possession. This relinquishment of possession by the tenant
shall not enure to the benefit of the appellants against the true
owner so as to accept their claim for adverse possession.
Appellants are required to prove that their possession was
adverse to the true owner. The plea of the appellants on the
basis of the purported order dated 18
th February, 1954 of the
Settlement Officer directing for issuance of Patta in their
favour also does not advance their case. It is not the
appellant’s case that plaintiffs were party before the
Settlement Officer. Further, it is not in dispute that no Patta
was issued in favour of the appellants and in fact rough Patta
was issued in favour of the second plaintiff. Thus, the
appellants have not proved the necessary ingredients to
establish their title by adverse possession. In our opinion, the
Division Bench is absolutely right in rejecting the appellants’
plea of adverse possession and decreeing the plaintiff’s suit,
after setting aside the judgment and decree of the trial and the
appellate Court.
1516. In the result, we do not find any merit in the appeal and
it is dismissed with cost throughout to be paid by the
appellants to the respondent. Lawyers fee quantified at
Rs.25,000/-.
…….………………………………….J.
 ( HARJIT SINGH BEDI )
 ………..……………………………….J.
 (CHANDRAMAULI KR. PRASAD)
NEW DELHI,
DECEMBER 7, 2010.
16

Specific Relief Act, 1963: s.6 - Suit filed by landlord under s.6 against trespasser when tenant in exclusive possession of suit property is dispossessed forcibly by a trespasser/third party - Maintainability of - Held: Maintainable - Non-impleadment of tenant is not fatal to the maintainability of such suit as tenant is not necessary party in such suit. Words and phrases: Word `dispossessed' - Meaning of - In the context of s.6(1) of Specific Relief Act, 1963. The questions which arose for consideration in the present appeal were whether landlord can maintain suit under Section 6 of Specific Relief Act, 1963 against a trespasser for immediate possession where a tenant in exclusive possession was dispossessed forcibly by the trespasser and whether tenant is a necessary party in such suit.- Dismissing the appeal, the Court HELD: 1.1. The key words in Section 6(1) of Specific Relief Act, 1963 are "dispossessed" and "he or any person claiming through him". A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant. [Paras 16 and 19] [1082-f-h; 1084-c- d] Veeraswami Mudali v. P.R. Venkatachala Mudali and others AIR 1926 Madras 18; Ramchandra v. Sambashiv AIR 1928 Nagpur 313; (Kanneganti) Ramamanemma v. (Kanneganti) Basavayya AIR 1934 Madras 558, overruled. Nobin Das v. Kailash Chandra Dey (1910) Vol. VII Indian Cases 924; Ramanadhan Chetti v. Pulikutti Servai and Mohideen avuther v. Jayarama Aiyar (1898) 21 Madras 288; Sailesh Kumar and ANOTHER v. Rama Devi AIR (1952) Patna 339; Gobind Ram Jamna Dass v. Mst. Mewa w/o Parbhati AIR (1953) Pepsu 188, approved. Ramanadhan Chetti v. Pulikutti Servai (1898) 21 Madras 288; Mohideen Ravuther v. Jayarama Aiyar (1921) 44 Madras 937, referred to. Halsbury's Laws of England (Fourth Edition, page 617), referred to. 1.2. Section 6 of the Act provides that suit to recover possession under the said provision could be filed by the person who is dispossessed or any person claiming through him. The tenant having lost the possession though without his consent to a third party, may not be interested in recovery of possession. He may not be available. He may not like to involve himself in litigation. In such circumstances, if a landlord brings the suit to recover possession against trespasser under Section 6, it cannot be laid down as an absolute proposition that tenant must necessarily be impleaded as party to such suit. It may be desirable that a landlord in a suit under Section 6 of the Act against a trespasser for immediate possession when, at the date of dispossession, the house was in occupation of a tenant, impleads the tenant, but his non-impleadment is not fatal to the maintainability of such suit. [Para 20] [1085-c-g] Case Law Reference: AIR 1926 Madras 18 overruled Para 7 (1898) 21 Madrass 288 referred to Para 7 (1921) 44 Madras 937 referred to Para 7 AIR 1928 Nagpur 313 overruled Para 8 AIR 1934 Madras 558 overruled Para 9 (1910) Vol. VII Indian Cases 924 approved Para 11 (1898) 21 Madras 288 approved Para 12 AIR (1952) Patna 339 approved Para 13 AIR (1953) Pepsu 188 approved Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1930 of 2010. From the Judgment AND Order dated 28.3.2008 of the High Court of Judicature at Bombay in Civil Revision Application No. 1235 of 2001. Amol Chitale, Abhijat P. Medh for the Appellants. Sushil Karanjka, Vishal A. Patil, K.N. Rai for the Respondent.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1930 OF 2010
[Arising out of SLP [C] No. 10418 of 2008]
Sadashiv Shyama Sawant [D] …. Appellants
Through L.Rs., & Ors.
Vs.
Anita Anant Sawant ….Respondent
JUDGEMENT
R.M. LODHA,J.
Leave granted.
2. The main question for consideration in this appeal by
special leave is: where a tenant in exclusive possession is
dispossessed forcibly by a person other than landlord, can landlord
maintain suit under Section 6 of Specific Relief Act, 1963 againstsuch person for immediate possession. The incidental question is,
whether tenant is a necessary party in such suit.
3. Smt. Anita Anant Sawant – the sole respondent filed a
suit for possession under Section 6 of the Specific Relief Act, 1963
(for short `the Act’) in respect of portion of property being Gram
Panchayat House No. 97 situated on land bearing Gat No. 1, Hissa
No. 61, Village Ambet, Taluka Mahasala, District Raigad, against the
appellants and their predecessors-in-title (hereinafter referred to as
`the contesting defendants’) and one Smt. Nanibai Shankar Sawant,
since deceased, (hereinafter referred to as `defendant no. 4’). The
plaintiff averred in the plaint that she purchased the entire house No.
97 from defendant no. 4 by registered sale deed on October 1, 1981.
At the time of purchase, part of house No. 97 was in possession of
Pandurang Vichare who vacated that portion and she came into
possession of entire house. Later on, she let out southern side one
room along with hall adjacent to Padavi and northern side room of
hall (for short `suit property’) to one P.V. Warik. On October 1, 1988,
the contesting defendants forcibly dispossessed the tenant – P.V.
Warik, threw away his articles and took possession of the suit
2property. The plaintiff, thus, prayed for recovery of possession of
the suit property of which her tenant was forcibly dispossessed. The
contesting defendants filed written statement and traversed plaintiff’s
claim by stating that suit property was joint family property and
defendant no. 4 had no authority to sell the said house to the plaintiff.
The contesting defendants, thus, claimed that they were co-owners
and in possession of the entire house No. 97. Defendant No. 4 set
up the plea that no consideration was paid to her for the sale of
house No. 97 and that sale deed was obtained by fraud. It transpires,
on the basis of the pleadings of the parties, the trial court framed as
many as six issues, including that of title to property although such
issue was unnecessary. The trial court, after recording the evidence
and hearing the parties, held that plaintiff was able to prove her
dispossession on October 1, 1988 by the contesting defendants from
the suit property and that she could maintain the suit under Section 6
of the Act against the contesting defendants as she was in
possession through a tenant over the suit property. The trial court,
accordingly, vide its judgment and decree dated July 31, 2001,
directed the contesting defendants to handover the possession of the
suit property to the plaintiff.
34. The contesting defendants challenged the judgment and
decree of the trial court by filing revision application before the High
Court of Judicature at Bombay. It may be noticed here that
defendant no. 4 had already died during the pendency of suit and her
legal representatives were brought on record, but later on they were
deleted from array of parties in the revision application. Inter alia,
the contention raised before the High Court was that if the tenant of
the plaintiff was forcibly dispossessed, the suit under Section 6 of the
Act could be filed by the tenant and not by the landlady. The High
Court did not accept the contention of the contesting defendants and
held that in view of the language of Section 6 of the Act, either the
tenant who was actually dispossessed or the plaintiff being landlady
could file the suit. The High Court, thus, by its judgment dated March
28, 2008 dismissed the revision application. It is from this judgment
that the present appeal by special leave arises.
5. Section 6 of the Act reads as under:-
“6.- Suit by person dispossessed of immovable
property.- (1) If any person is dispossessed without
4his consent of immovable property otherwise than in
due course of law, he or any person claiming through
him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in
such suit.
(2) No suit under this section shall be brought –
(a) after the expiry of six months from the date
of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree
passed in any suit instituted under this section,
nor shall any review of any such order or
decree be allowed.
(4) Nothing in this section shall bar any person
from suing to establish his title to such property
and to recover possession thereof.”
6. Section 6 corresponds to Section 9 of the repealed
Specific Relief Act, 1877 (for short, `1877 Act’). The question
whether a landlord can sue a trespasser for immediate possession
where his tenant has been dispossessed has come up for
consideration before various High Courts with reference to Section 9
of the 1877 Act. Section 9 of the 1877 Act is in these terms:-
“9. If any person is dispossessed without his consent of
immovable property otherwise than in due course of law,
he or any person claiming through him may, by suit,
5recover possession thereof, notwithstanding any other title
that may be set up in such suit.
Nothing in this section shall bar any person from
suing to establish his title to such property and to recover
possession thereof.
No suit under this section shall be brought against
the Central Government or any State Government.
No appeal shall lie from any order or decree passed
in any suit instituted under this section, nor shall any
review of any such order or decree be allowed. “
 7. In Veeraswami Mudali v. P.R. Venkatachala Mudali and
others1
, it was held by the Madras High Court that the trespasser
could not interfere with landlord’s right to receive rent and a decree to
be put into possession of the rents, but so long as landlord did not
himself possess the right to enjoy physical possession, he could not
eject the trespasser under Section 9. While holding so, the Single
Judge of Madras High Court relied upon previous decisions of that
Court in Ramanadhan Chetti v. Pulikutti Servai2 and Mohideen
Ravuther v. Jayarama Aiyar
3
.
8. The Division Bench of Additional Judicial Commissioners,
Nagpur, in Ramchandra v. Sambashiv
4
, on a question referred to it
1
 AIR 1926 Madras 18
2
 (1898) 21 Madras 288
3
 (1921) 44 Madras 937
4
 AIR 1928 Nagpur 313
6under Section 113 of Code of Civil Procedure, held that a landlord
cannot sue under Section 9 to recover possession of the land
because he was not in possession of it and was not dispossessed of
it.
9. In (Kanneganti) Ramamanemma v. (Kanneganti)
Basavayya
5
, a Single Judge of the Madras High Court held that a
suit by landlord for possession under Section 9 in which the tenant in
possession had not joined, is not maintainable.
10. Contrary to the aforesaid view of the Madras High Court
and Nagpur Judicial Commissioner, the High Courts of Calcutta,
Bombay, Patna, Pepsu and Rajasthan have taken the view that a
landlord can maintain a suit under Section 9 of the 1877 Act to
recover possession where his tenant in exclusive possession has
been dispossessed forcibly by the act of a third party.
11. In Nobin Das v. Kailash Chandra Dey6
, the Division
Bench of Calcutta High Court held:
5
 AIR 1934 Madras 558
6
 (1910) Vol. VII Indian Cases 924
7“….In the case before us, the plaintiff was originally in
actual possession of the land. He was at that stage
entitled to use the property in any way he chose. He
settled the land with tenants. The result was, not that he
was deprived of his possession, but that the mode in which
he held possession of the property was altered. His
tenants came into physical possession of the land and he
held possession thereafter by receipt of rent from them.
When, therefore, his tenants were forcibly ejected from the
land by the defendants, it may reasonably be held that he
also was dispossessed. The case before us is further
strengthened by the additional fact that the tenants, after
they had been evicted, relinquished the land in favour of
the plaintiff so that the plaintiff thereafter became entitled to
have physical possession of the land. Under these
circumstances, we hold that the plaintiff was dispossessed
within the meaning of section 9 of the Specific Relief Act
when his tenants were evicted from the land by the
defendant…..”.
12. The Division Bench of Bombay High Court in Ratanlal
Ghelabhai v. Amarsing Rupsing and others7
stated the legal position
with reference to Section 9 of 1877 Act thus:
“There is nothing in this section to show that possession is
confined to actual physical possession. In the case of a
landlord and tenant the landlord is in possession through
his tenant and, as pointed out in Nirjivandas Madhavdas v.
Mahomed Ali Khan Ibrahim Khan [1880] 5 Bom. 208], the
proper remedy where exclusive occupation of immovable
property is given to a tenant is for the tenant to file a suit
for possession but the landlord, if he desires to sue
immediately on the possessory right, can sue in the name
of the tenant and further, for an injury to the reversion, the
landlord can sue in his own name. The injury in the
present instance consists in a denial of the plaintiff’s title to
the land for defendant 1 has taken possession of it
claiming it to be his. I think, therefore, that there is an
7
 AIR 1929 Bombay 467
8injury to the reversion in respect of which the plaintiff can
sue in his own name….”.
13. In Sailesh Kumar and another v. Rama Devi8
, the Division
Bench of Patna High Court answered the question, whether a
landlord can maintain a suit under Section 9 of the 1877 Act against
trespasser for immediate possession when, at the date of
dispossession, the house was in occupation of a tenant entitled to its
exclusive use, in affirmative. The Division Bench considered the
matter thus:-
“(6). Mr. P.B. Ganguly, appearing in support of this
application, contended that the plaintiff’s suit under
S.9 of the Specific Relief Act was not maintainable, as
she could not sue for possession, the actual
possession having been with defendants 5 and 6 who
were the tenants of the house. In support of his
contention, he placed reliance on the cases of `SITA
RAM v. RAM LAL’, 18 All 440 and `VEERASWAMI v.
VENKATACHALA’, AIR 1926 Mad 18. It is sufficient
to state that the Allahabad case was not one under
Section 9 of the Specific Relief Act, and it is beside
the point in issue before us. The Madras case,
however, supports the contention. That case is a
single Judge case, and it appears that in the Madras
High Court there are conflicting decisions on the
point.
(7). Section 9 of the Specific Relief Act is as follows:-
“If any person is dispossessed without
his consent of immoveable property
otherwise than in due course of law, he
8
 AIR 1952 Patna 339
9or any person claiming through him
may, by suit, recover possession
thereof, notwithstanding any other title
that may be set up in such suit”
(8). The contrary view was taken in the cases of
`JADU NATH SINGH v. BISHUNATH SINGH’, 1950
All LJ 288 & `RATANLAL GHELABHAI v.
AMARSINGH RUPSANG’, 53 Bom 773. I respectfully
agree with the view expressed in these cases. I am
of opinion that there is nothing to bar a landlord from
suing a trespasser under S. 9, Specific Relief Act, for
possession even when at the date of dispossession
the property is in occupation of a tenant entitled to
possession”.
14. In the case of Gobind Ram Jamna Dass v. Mst. Mewa
w/o Parbhati9
, the Division Bench of Pepsu High Court relied upon
the decision of Patna High Court in Sailesh Kumar8 and did not follow
decision of Madras High Court in Veeraswami Mudali1
. The Division
Bench of Pepsu High Court held that possession of the tenant can
be considered to be the possession of the landlord for the purposes
of Section 9. The Division Bench expressed its opinion in the
following words:
“….The word used in S. 9 is `dispossessed’. There is
nothing in this section to show that the possession is
confined only to actual physical possession. I am,
therefore, of the opinion that a suit is competent by
the landlord, even if he is not in actual physical
possession of the land but in its possession through a
tenant at the time of illegal dispossession. This
9
 AIR 1953 Pepsu 188
10conclusion is further strengthened by the words “he or
any person claiming through him may, by suit, recover
possession thereof” used in the section. The
language of this section, therefore, clearly indicates
that besides the person dispossessed, any person
claiming through him can seek his remedy provided in
this section for the recovery of possession. It
necessarily follows that the person seeking relief
under S. 9 need not himself be in actual physical
possession of the property. A contrary view to this
will defeat the aims and objects of this enactment.
Supposing a landlord is incompetent to sue and his
tenant who is dispossessed refuses to institute a suit
under S. 9 of the Act, the landlord would be put in a
very awkward situation and would be forced to file a
regular suit. In such a case a wrong-doer will
naturally be placed in an advantageous position. To
accept this position it would be putting a premium on
a wrong act of trespasser. This position, in my
opinion, is not contemplated by the relevant
legislation. On the other hand S.9 provides for a
speedy and summary remedy to recover possession
taken away by unlawful means. The object of the
legislation, besides this, is to place the parties in their
original position. Trespasser, if he so likes, can bring
a regular suit to prove his title. A contrary
construction, in my opinion, would result in protracted
litigation for persons ousted from lawful possession by
unlawful means on the part of a trespasser”.
15. The Single Judge of Rajasthan High Court in Raghuvar
Dayal v. Hargovind and another10 was concerned with the question,
whether suit for possession under Section 9 of the 1877 Act can be
brought by a landlord even when the property is in possession of the
tenant. The Single Judge followed the afore-referred decisions of
10 AIR 1958 Rajasthan 287
11Bombay, Pepsu and Patna High Courts and reiterated the legal
position as follows:-
“(18). On a careful consideration of the wordings of S. 9
of the Act, I am of opinion that the ruling in which it has
been held that the suit for possession u/s 9 of the Act
can be brought by a landlord also even when the
property is in possession of the tenant have taken a
correct view of the provisions of S. 9. The words used
are “dispossessed” and “recover possession thereof”.
Section 9 is not confined only to those cases where the
plaintiff is in actual possession of the property in suit.
Whatever possession the plaintiff has at the date of
dispossession, he is entitled to claim in case of
dispossession. If a tenant is in possession of the
property and being dispossessed therefrom does not
care to bring a suit for possession of the property, the
landlord cannot be shut off from bringing a suit against
the trespasser.
If the tenant has a mind to remain in possession
of the property on behalf of the landlord, the landlord
will put him in actual possession of the property. If,
however, the tenant has no mind to stick to the land,
the landlord is entitled to get actual possession of the
property from the trespasser. Of course it would be
proper to make the tenant also a party to the suit. He
may either join as a co-plaintiff or in case he refuses to
join as a co-plaintiff he may be made a defendant so
that he might have his say in the matter. In this case
the tenant has also been made a defendant.
I may say here that in this particular case
according to the finding of the learned Civil Judge with
which I have no reason to disagree, the tenant had put
Raghuvar Dayal defendant in possession of the
property in collusion with him. This Reghuvardayal filed
a suit for ejectment and the tenant entered into a
compromise and suffered a compromise decree for
ejectment being passed against him. In execution of
that decree Shivchand tenant was dispossessed.
Under these circumstances to my mind the plaintiff was
12entitled to actual possession of the property in dispute
and the defendant Reghuvardayal who came into
possession of that property certainly interfered with the
possession of the plaintiff.
Shivchand tenant had no interest in the
possession of the property in dispute under the
circumstances of the case and the only persons
interested in possession thereof was the plaintiff. I
cannot therefore find any fault with the decree of the
lower Court awarding possession to the plaintiff”.
16. As noticed above, the views of the High Courts differ
about maintainability of suit for possession by the landlord under
Section 9 of 1877 Act in respect of property let out to the tenant who
has been dispossessed forcibly by a third party. That language of
Section 6(1) of the Act and first paragraph of Section 9 of 1877 Act is
exactly identical admits of no doubt. The key words in Section 6(1)
are “dispossessed” and “he or any person claiming through him”. A
person is said to have been dispossessed when he has been
deprived of his possession; such deprivation may be of actual
possession or legal possession. Possession in law follows right to
possession. The right to possession, though distinct from
possession, is treated as equivalent to possession itself for certain
purposes.
1317. In Halsbury’s Laws of England (Fourth Edition, page 617 -
para 1111), `physical and legal possession’ is distinguished as
under:
“ `Possession’ is a word of ambiguous meaning, and its
legal senses do not coincide with the popular sense. In
English law it may be treated not merely as a physical
condition protected by ownership, but as a right in itself.
The word “possession” may mean effective, physical or
manual control, or occupation, evidenced by some
outward act, sometimes called de facto possession or
detention as distinct from a legal right to possession…
…
`Possession’ may mean legal possession: that
possession which is recognized and protected as such
by law. The elements normally characteristic of legal
possession are an intention of possessing together with
that amount of occupation or control of the entire
subject matter of which it is practically capable and
which is sufficient for practical purposes to exclude
strangers from interfering. Thus, legal possession is
ordinarily associated with de facto possession; but
legal possession may exist without de facto possession,
and de facto possession is not always regarded as
possession in law. A person who, although having no
de facto possession, is deemed to have possession in
law is sometimes said to have constructive
possession.”
18. Pollock and Wright in their classic work, `An Essay on
Possession in the Common Law’ (1888 Edition, page 27)
explained the nature of possession, inter alia, as follows:
“Right to possess or to have legal possession. This
includes the right to physical possession. It can exist
14apart from both physical and legal possession; it is, for
example, that which remains to a rightful possessor
immediately after he has been wrongfully
dispossessed. It is a normal incident of ownership or
property, and the name of `property’ is often given to
it….
Right to possess, when separated from
possession, is often called `constructive possession.’
The correct use of the term would seem to be
coextensive with and limited to those cases where a
person entitled to possess is (or was) allowed the same
remedies as if he had really been in possession….”.
19. A landlord by letting out the property to a tenant does not
lose possession as he continues to retain the legal possession
although actual possession, user and control of that property is with
the tenant. By retaining legal possession or in any case constructive
possession, the landlord also retains all his legal remedies. As a
matter of law, the dispossession of tenant by a third party is
dispossession of the landlord. The word “dispossessed” in Section
6(1) must be read in this context and not in light of the actual
possession alone. If a tenant is thrown out forcibly from the tenanted
premises by a trespasser, the landlord has implied right of entry in
order to recover possession (for himself and his tenant). Similarly,
the expression “any person claiming through him” would bring within
its fold the landlord as he continues in legal possession over the
15tenanted property through his tenant. As a matter of fact, on plain
reading of Section 6(1), it is clear that besides the person who has
been dispossessed, any person claiming through him can also file a
suit seeking recovery of possession. Obviously, a landlord who holds
the possession through his tenant is competent to maintain suit under
Section 6 and recover possession from a trespasser who has forcibly
dispossessed his tenant. A landlord when he lets out his property to
the tenant is not deprived of his possession in the property in law.
What is altered is mode in which the landlord held his possession in
the property inasmuch as the tenant comes into physical possession
while the landlord retains possession through his tenant. The view of
Calcutta High Court that where the tenant was forcibly ejected from
the land by the third party, it may reasonably be held that landlord
has also been dispossessed is the correct view. We find ourselves
in agreement with the view of Bombay, Patna, Pepsu and Rajasthan
High Courts and hold, as it must be, that there is nothing in Section 6
of the Act to bar a landlord from suing a trespasser in possession
even when, at the date of dispossession, the property is in actual
occupation of a tenant entitled to possession. The views expressed
by Madras High Court in Veeraswami Mudali1 and (Kanneganti)
16Ramamanemma5 and by Nagpur Judicial Commissioner in the case
of Ramchandra4 do not lay down the correct law.
20. Now we advert to the incidental question whether in such
a suit, tenant is a necessary party. Section 6 of the Act provides that
suit to recover possession under the said provision could be filed by
the person who is dispossessed or any person claiming through him.
The tenant having lost the possession though without his consent to a
third party, may not be interested in recovery of possession. He may
not be available. He may not like to involve himself in litigation. In
such circumstances, if a landlord brings the suit to recover
possession against trespasser under Section 6, it cannot be laid
down as an absolute proposition that tenant must necessarily be
impleaded as party to such suit. The view of Bombay High Court in
Ratanlal Ghelabhai7
that landlord can sue in his own name where
there is an injury to the reversion exposits the correct position of law.
It may be desirable that a landlord in a suit under Section 6 of the Act
against a trespasser for immediate possession when, at the date of
dispossession, the house was in occupation of a tenant, impleads the
tenant, but his non-impleadment is not fatal to the maintainability of
17such suit. The view of Madras High Court in (Kanneganti)
Ramamanemma5 and of other High Courts following that view do not
appear to us as laying down correct law.
21. In the result, appeal fails and is dismissed with no order
as to costs.
.………………….J.
[P. SATHASIVAM]
……………..J.
[R.M. LODHA]
NEW DELHI
FEBRUARY 22, 2010.
18

Mohammadan Law: Immovable property-Sale of-Right of pre-emption-Talab-Principle of-Held : There are three facets of talab; (i) talab-e-muwathaba, (ii) talab-e-ishhad and (iii) talab-e-tamilik or talab-e-khusumat-The first implies a demand, the second, reiteration of demand in the presence of witnesses and the third, initiation of legal action-The owner of an immovable property possesses a right of pre-emption (shuf a) over immovable property that has been sold to another person. Practice and Procedure : Finding of fact-Interference with-Scope of-Held: Ought not to be interfered with unless there is a total perverse view of the matter in issue. Words and Phrases: "Talab-e muwathaba", "talab-e ishhad", "talab-e tamlik", "talab-e khusumat" and "shuf a "-Meaning of-In the context of Immovable property under Mohammodan Law. The respondents-plaintiffs filed a suit for a declaration that 3/4th portion of the suit property belonged to them and the sale to that extent in favour of the appellant-defendant was null and void. The respondents also claimed that they had a right of pre-emption as they were the co- sharers. The appellant alleged that no `talabs' were made by the respondents and that the respondent showed their inability to purchase the property and thus they waived their right to pre-emption. The trial court dismissed the suit. The first appellate court allowed the appeal, which was confirmed by the High Court. Hence this appeal Citation: 2001 AIR 2611,2001( 3 )SCR1009,2001( 6 )SCC 330,2001( 4 )SCALE388 ,2001( 5 )JT 496- Dismissing the appeal, the Court HELD : 1.1. The principle of talab in Mohammadan Law has three specific facets; the first being talab-e muwathaba. Talab in common parlance means and implies demand and talab-e muwathaba literally means `the demand of jumping'. The idea is of a person jumping from his seat, as though startled by the news of the sale. In talab-e muwathaba the pre-emptor must assert his claim immediately on hearing of the sale though not before, and law stands well settled that any unreasonable delay will be constructed as an election not to pre-empt. The second, being popularly known as the second demand, is talab-e ishhad, which literally speaking means and implies the demand which stands witnessed. The second demand thus must be in reference to the First demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the third demand though not strictly a demand but comes within the purview of the principle and means initiation of legal action. It is, however, not always necessary since it is available only when one enforces his right by initiation of a civil suit - such an action is called talab-e tamlik or talab-e khusumat. In this form of talab the suit must be brought within one year of the purchaser taking possession of the property and a suit or claim for pre-emption must relate to whole of the interest and not a part of the estate. [1011-F-H; 1012-A] Wilson on Mohammadan Law, referred to. 1.2. The right of pre-emption (shuf a) is the right, which the owner of an immovable property possesses to acquire by purchase of any immovable property, which had been sold to another person. [1012-B] Shri Audh Behari Singh v. Gajadhar Jaipuria, [1955] 1 SCR 70; Bishan Singh v. Khazan Singh, [1959] SCR 878; Indira Bai v. Nand Kishore, AIR (1991) SC 1055; Dhaninath v. Budhu, 136 PR 1894; Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775; Mool Chand v. Ganga Jal, (1930) ILR 11 Lah 258; Radha Ballabh Haldiya v. Pushalal Agarwal, AIR (1986) Raj 88 and Sheikh Kudratulla v. Mohini Mohan 4 Beng., LR 134 (Cal), referred to. Smt. Rajeshwari Devi v. Mukesh Chandra, (1966) SC Notes 403, cited. 2.1. The defendants were required to prove that the plaintiffs after execution of the agreement to sell, expressed their inability to purchase the property and also after execution of the sale deed, refused to purchase the property. [1018-F] 2.2. The finding of fact arrived at upon consideration of the evidence on record ought not to be interfered with unless there is a total perverse view of the matter in issue. There is no such perversity so as to attribute the judgment of the High Court, otherwise not sustainable. [1019-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5816 of 1994.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (civil) 5816 of 1994
PETITIONER:
SMT. MATTOO DEVI
 Vs.
RESPONDENT:
DAMODAR LAL (D) BY LRS & ORS.
DATE OF JUDGMENT: 18/07/2001
BENCH:
A.P. Misra & Umesh C. Banerjee
JUDGMENT:
BANERJEE, J.
 Whilst an appeal has been taken against the judgment and decree
passed by the learned Civil Judge, Jaipur in favour of Respondent No.1 & 2
on deposit of Rs.4657/- on the basis of the doctrine of Pre-emption in the
court before a specified date and the High Court dismissed the appeal on the
ground of there being no material for interference with the finding of the
Civil Judge, Jaipur and a special leave petition was filed against the same
(being Civil Appeal No.5816/1994), the learned Advocate in support of the
Appeal only restricted his submission on the issue of the principle of talab,
as is known in Muslim Law.
The principle of talab in Muhammadan Law has three specific facets:
the first being talab-e muwäthaba: Talab in common parlance means and
implies a demand and talab-e muwäthaba literally means the demand of
jumping. The idea is of a person jumping from his seat, as though startled
by news of the sale (See in this context Wilson on Mohammadan Law). In
Talab-e-muwathaba the pre-emptor must assert his claim immediately on
hearing of sale though not before and law stands well settled that any
unreasonable delay will be construed as an election not to pre-empt. The
second, being popularly known as the Second Demand, is talab-e ishhäd,
which literally speaking mean and imply the demand which stands
witnessed. The second demand thus must be in reference to the first demand
and it is so done in the presence of two witnesses and also in the presence of
either the vendor (if he is in possession) or the purchaser and the Third
Demand though not strictly a demand but comes within the purview of the
Principal and means initiation of legal action. It is however not always
necessary since it is available only when one enforces his right by initiation
of a civil suit such an action is called talab-e tamlïk or talab-e khusümat.
In this form of Talab the suit must be brought within one year of the
purchaser taking possession of the property and a suit or claim for preemption must relate to whole of the interest and not a part of the estate.
 Needless to record that right of pre-emption (shufa) is the right
which the owner of immovable property possessess to acquire by purchase
of any immovable property which had been sold to another person. Whereas
the High Courts at Bombay and Calcutta held that the right of pre-emption is
a right of re-purchase from the buyer and a mere personal right; the
Allahabad High Court held that it is an incidence of property. This Court,
however, in the case of Shri Audh Behari Singh v. Gajadhar Jaipuria & Ors.
(1955 (1) SCR 70) has held that the right of pre-emption is an incidence ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
property and attaches to the land itself. Detailing the judgments of the
Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan (4 Bengal Law
Reporter 134) as also the Allahabad and Patna High Courts view, this Court
observed:
In our opinion it would not be correct to say that the
right of pre-emption under Muhammadan Law is a
personal right on the part of the pre-emptor to get a retransfer of the property from the vendee who has already
become owner of the same. We prefer to accept the
meaning of the word Tajibo used in the Hedaya in the
sense in which Mr. Justice Mahmood construes it to
mean and it was really a mis-translation of that word by
Hamilton that accounted to a great extent for the view
taken by the Calcutta High Court. It is true that the right
becomes enforceable only when there is a sale but the
right exists antecedently to the sale, the foundation of the
right being the avoidance of the inconveniences and
disturbances which would arise from the introduction of
a stranger into the land. We agree with Mr. Justice
Mahmood that the sale is a condition precedent not to the
existence of the right but to its enforceability. We do not
however desire to express any opinion on the view taken
by the learned Judge that the right of pre-emption
partakes strongly of the character of an easement in law.
Analogies are not always helpful and even if there is
resemblance between the two rights, the differences
between them are no less material. The correct legal
position seems to be that the law of pre-emption imposes
a limitation or disability upon the ownership of a
property to the extent that it restricts the owners
unfettered right of sale and compels him to sell the
property to his co-sharer or neighbour as the case may be.
The person who is a co-shares in the land or owns lands
in the vicinity consequently gets an advantage or benefit
corresponding to the burden with which the owner or the
property is saddled; even though it does not amount to an
actual interest in the property sold. The crux of the
whole thing is that the benefit as well as the burden of the
right of pre-emption run with the land and can be
enforced by or against the owner of the land for the time
being although the right of the pre-emptor does not
amount to an interest in the land itself. It may be stated
here that if the right of pre-emption had been only a
personal right enforceable against the vendee and there
was no infirmity in the title of the owner restricting his
right of sale in a certain manner, a bonafide purchaser
without notice would certainly obtain an absolute title to
the property, unhampered by any right of the pre-emptor
and in such circumstances there could be no justification
for enforcing the right of pre-emption against the
purchaser on grounds of justice, equity and good
conscience on which grounds alone the right could be
enforced at the present day. In our opinion the law of
pre-emption creates a right which attaches to the property
and on that footing only it can be enforced against the
purchaser.
 Before adverting to the contentions raised, though not strictly
relevant, the contextual facts ought to be noticed at this juncture for proper
and effective appreciation of the matter in issue.
 Briefly stated, the facts depict that defendants Nos.2 and 4 has sold
their house situated in Gali Chaudharian Chowkri Bisheshswarji, to
defendant No.1 on 30th July, 1962, for a sum of Rs.4,499/- by a registeredhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
sale deed. The plaintiff, Damodar Lal (since deceased) and his son Satya
Narain filed a suit in the Court of Addl. Munsiff No.1, district Jaipur on 23rd
July, 1963. The case of the plaintiff is that 3/4th portion of the house is
owned and possessed by them and defendant Nos.2 to 4 sold their portion in
the said house to defendant No.1 on 30th July, 1962. The plaintiffs claimed
that they have a right of pre-emption as they are co-sharers. It was further
contended by the plaintiffs that when they came to know of the sale on 12th
September, 1962, they informed Matto Devi about their right of pre-emption
and asked to sell the property to them. But she paid no heed to it. It is also
alleged in the plaint that in the sale-deed, certain portions exclusively
belonged to the plaintiffs. The plaintiffs, therefore, sought declaration that
certain portions of the property belong to them and the sale to that extent in
any event is null and void. The appellant Smt. Matto Devi, being the
vendee, however denied the allegations, though the character of the plaintiff
as co-sharer was not denied. It was alleged that no talabs were made by
Damodar Lal and Satya Deo, the plaintiffs. It was also alleged that an
option to purchase the property was given to the plaintiffs, but they did not
avail of the same and as a matter of fact they waived their right from
enforcing the right of pre-emption. The records however depict that the
plaint was amended for making an assertion that talabs were made on 12th
November, 1962, in the presence of Kalyah and Satya Narain witnesses; but
the property was not sold to them. The learned Munsiff, after trial held that
the right or custom of pre-emption was prevalent in the city of Jaipur and the
plaintiff had a right to pre-empt. It was also held that the plaintiffs had
shown their inability to purchase the property and, thus, they have waived
their right to pre-emption. The learned trial court also held that the suit was
not maintainable as it was for partial pre-emption and as regards talabs it
was the finding of the learned trial court that no talabs were made by the
plaintiffs. Consequently, the suit of the plaintiffs was dismissed by the
learned Munsiff. Being aggrieved by the judgment and decree passed by the
learned Additional Munsiff Magistrate No.1, Jaipur dated 12th January,
1973, an appeal was preferred before the learned District Judge, which was
transferred to the Court of the learned Civil Judge, Jaipur. The learned first
appellate Court allowed the appeal setting aside the judgment and decree
passed by the learned trial court and thus consequently, the plaintiffs suit
for pre-emption was decreed with costs. The plaintiffs were directed to
deposit in the trial court a sum of Rs.4667/- on or before 18th April, 1975,
and it was directed that on payment of such amount in the court, Smt. Matto
Devi, defendant No.1, shall deliver possession of the property to the
plaintiffs whose title to the property shall be deemed to have accrued from
the date of such payment. It was also directed that if the said amount is not
so paid, the suit shall stand dismissed. Aggrieved by the judgment and
decree passed by the learned first appellate court, the second appeal
preffered by Smt. Matto Devi, however did not yield any be nefit in favour
of the defendant and hence the petition before this Court.
 As noticed above, the question pressed pertains to the issue of talab
only and it is in that perspective, the effect of a notification dated 7th April,
1927 ought to be noticed.
Before however, proceeding with the scope and effect of the
notification, it would be convenient to note the observations of Subba Rao, J.
in Bishan Singh & Ors. v. Khazan Singh & Anr. (1959 SCR 878) wherein
the learned Judge relied upon the statement of law as given by Plowden, J in
Dhaninath v. Budhu (136 PR 1894 at page 511) as below:
A preferential right to acquire land, belonging to
another person upon the occasion of a transfer by
the latter, does not appear to me to be either a right
to or a right in that land. It is jus ad rem alienum
acquirendum and not a jus in re aliiena.
A right to the offer of a thing about to be sold is
not identical with a right to the thing itself, and
that is the primary right of the pre-emptor. The
secondary right is to follow the thing sold, whenhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
sold without the proper offer to the pre-emptor,
and to acquire it, if he thinks fit, in spite of the
sale, made in disregard of his preferential right.
 On the basis of the aforesaid, Subba Rao, J, with his usual felicity of
expression observed that the general law of pre-emption does not recognise
any right to claim a share in the property sold when there are rival claimants
and pre-emption is a right to acquire the whole of the property sold in
preference to other persons. The learned Judge further relied upon the
decision in the case of Gobind Dayal v. Inayatullah (1885 ILR 7 Allahabad
775) as also the decision of the Lahore High Court in the case of Mool
Chand v. Ganga Jal (1930 ILR 11 Lahore 258) and summarised the law
pertaining to the right of pre-emption in the manner as below:
(1) The right of pre-emption is not a right to the
thing sold but a right to the offer of a thing about
to be sold. This right is called the primary or
inherent right. (2) The pre-emptor has a secondary
right or a remedial right to follow the thing sold.
(3) It is a right of substitution but not of repurchase, i.e., the pre-emptor takes the entire
bargain and steps into the shoes of the original
vendee. (4) It is a right to acquire the whole of the
property sold and not a share of the property sold.
(5) Preference being the essence of the right, the
plaintiff must have a superior right to that of the
vendee or the person substituted in his place. (6)
The right being a very weak right, it can be
defeated by all legitimate methods, such as the
vendee allowing the claimant of a superior or equal
right being substituted in his place.
 In the recent past this Court in the decision of Indira Bai v. Nand
Kishore (AIR 1991SC 1055) while dealing with the issue of estoppel and
the rule of equity stated as below:
3. Estoppel is a rule of equity flowing out of
fairness striking on behaviour deficient in good
faith. It operates a check on spurious conduct by
preventing the inducer from taking advantage and
asailing forfeiture already accomplished. It is
invoked and applied to aid the law in
administration of justice. But for it great many
injustice may have been perpetrated. Present case
is a glaring example of it. True no notice was
given by the seller but the trial Court and the
appellate Court concurred that the pre-emptor not
only came to know of the sale immediately but he
assisted the purchaser-appellant in raising
construction which went on for five months.
Having thus persuaded, rather misled, the
purchaser by his own conduct that he acquiesced in
his ownership he somersaulted to grab the property
with constructions by staking his own claim and
attempting to unsettle the legal effect of his own
conduct by taking recourse to law to curb and
control such unwarranted conduct the Courts have
extended the broad and paramount considerations
of equity, to transactions and assurances, express
or implied to avoid injustice.
4. Legal approach of the High Court, thus that
no estoppel could arise unless notice under Section
8 of the Rajasthan Pre-emption Act (in brevity the
Act) was given by the seller and pre-emptorhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
should have had occasion to pay or tender price
ignores the fallacy that estoppel need not be
specifically provided as it can always be used as a
weapon of defence. In the Privy Council decision
referred earlier, the Court was concerned with
Oudh Laws Act (18 of 1876) which too had an
identical provision for giving notice by seller. No
notice was given but since pre-emptor knew that
the property was for sale and he had even obtained
details of lots he was precluded from basing his
claim on pre-emption.
The notification noticed above seems to have however, a definite
impact in the matter in issue and as such the same is detailed hereinbelow in
extenso for ascertainment of its true effect. The notification reads as below:
No.2155/J-I-148 Dated Jaipur, the 7th April, 1927
Whereas it is expedient to give all possible claimants
formal notice of a sale, with a view to facilitate their
assertion of pre-emptive right without recourse to
litigation, the following rules have been passed by the
Council of State, and they shall come immediately into
force:
1. When any person proposes to sell any property in
respect of which any person have a right of preemption, he shall give notice to the persons
concerned of
(a) the property: and
(b) the price at which he is willing to sell it.
Such notice shall be given through the Court
within the local limits of whose jurisdiction the
property or any party thereof is situate.
2. Any person having a right of pre-emption in
respect of any property proposed to be sold shall
lose such right, unless within 3 months from the
date of service of such notice he or his agent pays
or tenders through the Court the price aforesaid to
the person so proposing to sell.
3. Any person entitled to a right of pre-emption may
bring a suit to enforce such right on any of the
following grounds (namely):-
(a) that no due notice was given as required by
Rule 1;
(b) that tender was made under Rule 2 and
refused;
(c) that the price stated in the notice was not fixed
in good faith;
Incidentally Rajasthan High Court in the case of Radha Ballabh
Haldiya & Ors. v. Pushalal Agarwal & Ors. (AIR 1986 Rajasthan 88) upon
reference to the notification, answered the reference to the effect that the
notification dated 7th April, 1927 as published in the Jaipur Gazette dated
15th April, 1927, in fact, modified the customary right of pre-emption
prevailing to the former Jaipur State and made the formalities of making
talabs as unnecessary. While coming to the conclusion as above, the High
Court in Radha Ballabs decision (supra) stated in paragraphs 69 and 75 of
the Report as below:
69. In our considered opinion, the procedure lawhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
and substantive law though well defined concept in
jurisprudence and there was no watertight
compartments for them created by any statute. If
we have to make a correct statement of law, we
must further mention in unequivocal manner that
the matter of substance in contradistinction to the
matters of form can be found both in substantive
law and procedural law and it would be fallacious
to say that all which form in the branch of
substantive law are matter of substance and all
which form in procedure law are matter of form. It
all depends upon the particular statute, its object,
its formulation and the effect which is desired to
be achieved by the requirement of procedure. We
do not propose to deal with this point any further
because in our considered opinion the substantive
law and procedural law overlap each other more
often than not and the proposition of law laid down
by us is so patent and well known that it requires
no examples, illustrations and citation of decisions,
any further.
75. We are of the opinion that this notification is
a complete Code in respect of right of pre-emption
except that the concept of pre-emption has been
left to be deduced from the customary law of the
parties and has not been mentioned in it. In other
words, the right of pre-emtption, as per the
customary law is to be found in the customary law
but once the right of pre-emption exists either on
account of vicinity or otherwise then that right can
be enforced only according to the requirement and
conditions laid down in this notification of 1927.
It is true that talabs have not been distanced with
in this notification. We are assuming for the
purpose of this reference that the requirement of
talabs was necessary under the customary
Mohammedan Law before this notification was
issued and if there is any doubt on that point, i.e.
amply answered by the two judgments of the
Supreme Court in Smt. Rajeshwari Devi v.
Mukesh Chandra (1966 SC Notes 403 ) (supra)
and Bhagirath Singh Shekhawat v. Ram Niwas
Barit (ibid) later being related to the Jaipur State
itself.
 Turning on to the contextual facts the main issue which fell for
consideration before the High Court has been as to whether the plaintiffs
after the execution of the agreement to sell, expressed their inability to
purchase the house and after the execution of the sale deed, refused to
purchase the house for Rs.4499/- plus expenses for registration and,
therefore, the plaintifs waived their right of pre-emption?
 Obviously, the burden of the issue was upon the defendants and the
defendants were required to prove that the plaintiffs after execution of the
agreement to sell, expressed their inability to purchase the property and also
after execution of the sale-deed, refused to purchase the property for a sum
of Rs. 4,499/-. The High Court upon consideration of the evidence came to
the conclusion as below:
I have myself gone into the entire evidence and
my conclusion is that the finding arrived at by the
learned first appellate Court is clear and based onhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
evidence that there was no evidence before the
learned Munsiff to hold that the plaintiffs showed
their inability to purchase the house, or had refused
to purchase the same. The defendants have failed
to prove their case that the plaintiffs after the
execution of the agreement to sell expressed their
inability to purchase the house and that after the
execution of the sale-deed refused to purchase the
house for a consideration of Rs.4,499/- plus
expenses for registration. Thus, the question of
waiver of right of pre-emption by the pre-emptor
does not arise at all.
 The learned Advocate appearing in support of the appeal very strongly
contended that the evidence on record does not lend any credence to the case
of the Respondents herein and as such the High Court was in gross error in
the matter in issue. Incidentally the finding of fact arrived at upon
consideration of the evidence on record ought not to be interfered with
unless there is a total perverse view of the matter in issue. On perusal of the
records, we do not find any such perversity so as to attribute the judgment of
the High Court, otherwise not sustainable. In our view the High Court has
dealt with the issue in its proper perspective having due regard to the
language used in the notification and as such question of any interference
under Article 136 of the Constitution of India would not arise.
 In that view of the matter this appeal fails and is dismissed without
however any order as to costs.
 (A.P. Misra)
 J
 (Umesh C. Banerjee)
July 18, 2001
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