NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NOS.2261-2262 OF 2012
MOHAMMED YASSIN ...APPELLANT
VERSUS
RAMIZABI ETC. ETC. ...RESPONDENTS
WITH
CONTEMPT PETITION (C) NO.485-486 OF 2011
IN
CIVIL APPEAL NOS.2261-2262 OF 2012
J U D G M E N T
RANJAN GOGOI, J.
1. Aggrieved by the impugned judgment and order dated 26th February,
2010 passed by the High Court in Second Appeal reversing the decrees passed
in favour of the plaintiff by the courts below the present appeals have
been lodged by the plaintiff in the suits being O.S. No.760 of 1996 and
eviction suit being O.S. No.761 of 1996. The facts in brief are as follows:
2. The respondents in the two appeals before us as plaintiff Nos.5 and
6, along with four others, had instituted a suit [O.S. No.295 of 1981]
against the appellant and other co-owners for declaration of title and
injunction on the basis of adverse possession. The suit was dismissed by
the learned trial Court on 1st October, 1982 and the said decree of
dismissal was affirmed by the First Appellate Court on 30th March, 1984.
The aforesaid judgment has attained finality in law inasmuch as it was not
put to any further challenge. The dismissal of the suit in question i.e.
O.S. No.295 of 1981 was founded on the principal basis that the plaintiffs
therein (respondents in the present appeals) could not establish that they
had acquired title by continuous possession which was adverse in character.
3. Thereafter, the present appellant, as the plaintiff, instituted a
suit i.e. O.S. No.551 of 1983 for eviction of four of the plaintiffs who
had filed O.S. No.295 of 1981. The said suit was decreed and the said
decree was confirmed by the High Court in Second Appeal No.1854 of 1991.
Pursuant to the said decree the appellant had taken possession of the suit
property.
4. As part of the suit property remained in possession of the co-sharers
who executed a release deed in favour of the present appellant on 3rd June,
1994, the appellant, as the plaintiff, after issuing legal notice
instituted O.S. Nos.760 and 761 of 1996 against the respondents for
declaration of title and recovery of possession of the property mentioned
in the schedule to the suits. Both these respondents, as noticed, were the
plaintiff Nos. 6 and 5 respectively in Suit No.295 of 1981.
5. The learned trial Court as well as the first appellate Court decreed
both the suits filed by the appellant-plaintiff on the ground that the
issues therein stood concluded by the findings in the earlier suit i.e.
O.S. No.295 of 1981. Aggrieved, the respondents instituted the Second
Appeals wherein the impugned order has been passed.
6. We have heard the learned counsels of the parties.
7. A reading of the orders of the High Court would go to show that the
primary ground on which the High court thought it proper to reverse the
decrees passed by the two courts below is that though possession of the
respondents may have been permissive initially, after 30th March, 1984 i.e.
the date on which the decree in O.S. No.295 of 1981 became final, the
possession of the respondents, which continued, was adverse to the
appellant and as the suits were filed on 5th September, 1996 i.e. after
expiry of period of 12 years from 30th March, 1984 the respondents have
perfected their title by adverse possession. Accordingly, the reversal
orders were passed by the High Court.
8. To counter the submissions advanced by Shri Vijay Hansaria, learned
Senior Counsel appearing for the appellant – plaintiff that there is no
material on record to show that the initial permissive possession of the
respondents has become hostile to the appellant – plaintiff after 30th
March, 1984 and that the conclusions recorded in this regard by the High
Court are plainly wrong, Shri V. Prabhakar, learned counsel for the
respondents defendants has urged that the finding of the learned trial
Court in O.S. No.295 of 1981 and of the appeal Court in the appeal arising
therefrom is that the respondent in Civil Appeal No.2261 of 2012, who was
the plaintiff No.6 in the said suit, was a licensee. Pointing out to the
essential difference between a lease and a licence and the rights of a
lessor and those of a licensee and relying on a decision of this Court in
Associated Hotels of India Ltd. Vs. R.N. Kapoor (1960) 1 SCR 368, Shri
Prabhakar has urged that post 30th March, 1984 the possession of the said
respondent (plaintiff No.6 in O.S. No.295 of 1981) was in respect of the
property as distinguished from the earlier possession which merely conveyed
a right to enjoy the property.
9. While the distinction between the lease and the licence need not
detain a Court, we find no material to accept the aforesaid distinction
made by Shri Prabhakar. There is no material to hold that post 30th March,
1984, the nature of possession of the respondent was, in any way, different
from the earlier possession or that such possession was adverse. It also
relevant to be noticed that insofar as the respondent in Civil Appeal
No.2262 of 2012 is concerned (plaintiff No.5 in O.S No.295 of 1981) the
finding of the learned Courts is that said respondent was a tenant under
the appellant-plaintiff.
10. Shri Prabhakar has also urged that the finding of the learned trial
court and the first appellate Court with regard to the title of the
plaintiff is without any basis. It is also pointed out that the first
appellate Court had verbatim reproduced the findings of the learned trial
Court in this regard. The reading of the judgments in question cannot
sustain the above contention. We have also noticed that the High Court had
not discussed the aforesaid aspect of the case in the impugned judgments,
notwithstanding which no grievance has been raised by the respondents
defendants by filing a separate appeal or even by filing a cross objections
in the present appeals.
11. For the aforesaid reasons, we are of the view that the High Court was
not correct in reversing the decrees passed by the learned trial Court
which decrees were affirmed by the first appellate Court. We, therefore,
set aside the orders of the High Court and restore the orders of the courts
below decreeing the suits (O.S. Nos.760 and 761 of 1996).
12. The appeals are allowed in the above terms.
13. In the light of the above, the contempt petitions are also closed.
…….....................,J.
(RANJAN GOGOI)
……....................,J.
(N.V. RAMANA)
NEW DELHI
OCTOBER 29, 2015.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NOS.2261-2262 OF 2012
MOHAMMED YASSIN ...APPELLANT
VERSUS
RAMIZABI ETC. ETC. ...RESPONDENTS
WITH
CONTEMPT PETITION (C) NO.485-486 OF 2011
IN
CIVIL APPEAL NOS.2261-2262 OF 2012
J U D G M E N T
RANJAN GOGOI, J.
1. Aggrieved by the impugned judgment and order dated 26th February,
2010 passed by the High Court in Second Appeal reversing the decrees passed
in favour of the plaintiff by the courts below the present appeals have
been lodged by the plaintiff in the suits being O.S. No.760 of 1996 and
eviction suit being O.S. No.761 of 1996. The facts in brief are as follows:
2. The respondents in the two appeals before us as plaintiff Nos.5 and
6, along with four others, had instituted a suit [O.S. No.295 of 1981]
against the appellant and other co-owners for declaration of title and
injunction on the basis of adverse possession. The suit was dismissed by
the learned trial Court on 1st October, 1982 and the said decree of
dismissal was affirmed by the First Appellate Court on 30th March, 1984.
The aforesaid judgment has attained finality in law inasmuch as it was not
put to any further challenge. The dismissal of the suit in question i.e.
O.S. No.295 of 1981 was founded on the principal basis that the plaintiffs
therein (respondents in the present appeals) could not establish that they
had acquired title by continuous possession which was adverse in character.
3. Thereafter, the present appellant, as the plaintiff, instituted a
suit i.e. O.S. No.551 of 1983 for eviction of four of the plaintiffs who
had filed O.S. No.295 of 1981. The said suit was decreed and the said
decree was confirmed by the High Court in Second Appeal No.1854 of 1991.
Pursuant to the said decree the appellant had taken possession of the suit
property.
4. As part of the suit property remained in possession of the co-sharers
who executed a release deed in favour of the present appellant on 3rd June,
1994, the appellant, as the plaintiff, after issuing legal notice
instituted O.S. Nos.760 and 761 of 1996 against the respondents for
declaration of title and recovery of possession of the property mentioned
in the schedule to the suits. Both these respondents, as noticed, were the
plaintiff Nos. 6 and 5 respectively in Suit No.295 of 1981.
5. The learned trial Court as well as the first appellate Court decreed
both the suits filed by the appellant-plaintiff on the ground that the
issues therein stood concluded by the findings in the earlier suit i.e.
O.S. No.295 of 1981. Aggrieved, the respondents instituted the Second
Appeals wherein the impugned order has been passed.
6. We have heard the learned counsels of the parties.
7. A reading of the orders of the High Court would go to show that the
primary ground on which the High court thought it proper to reverse the
decrees passed by the two courts below is that though possession of the
respondents may have been permissive initially, after 30th March, 1984 i.e.
the date on which the decree in O.S. No.295 of 1981 became final, the
possession of the respondents, which continued, was adverse to the
appellant and as the suits were filed on 5th September, 1996 i.e. after
expiry of period of 12 years from 30th March, 1984 the respondents have
perfected their title by adverse possession. Accordingly, the reversal
orders were passed by the High Court.
8. To counter the submissions advanced by Shri Vijay Hansaria, learned
Senior Counsel appearing for the appellant – plaintiff that there is no
material on record to show that the initial permissive possession of the
respondents has become hostile to the appellant – plaintiff after 30th
March, 1984 and that the conclusions recorded in this regard by the High
Court are plainly wrong, Shri V. Prabhakar, learned counsel for the
respondents defendants has urged that the finding of the learned trial
Court in O.S. No.295 of 1981 and of the appeal Court in the appeal arising
therefrom is that the respondent in Civil Appeal No.2261 of 2012, who was
the plaintiff No.6 in the said suit, was a licensee. Pointing out to the
essential difference between a lease and a licence and the rights of a
lessor and those of a licensee and relying on a decision of this Court in
Associated Hotels of India Ltd. Vs. R.N. Kapoor (1960) 1 SCR 368, Shri
Prabhakar has urged that post 30th March, 1984 the possession of the said
respondent (plaintiff No.6 in O.S. No.295 of 1981) was in respect of the
property as distinguished from the earlier possession which merely conveyed
a right to enjoy the property.
9. While the distinction between the lease and the licence need not
detain a Court, we find no material to accept the aforesaid distinction
made by Shri Prabhakar. There is no material to hold that post 30th March,
1984, the nature of possession of the respondent was, in any way, different
from the earlier possession or that such possession was adverse. It also
relevant to be noticed that insofar as the respondent in Civil Appeal
No.2262 of 2012 is concerned (plaintiff No.5 in O.S No.295 of 1981) the
finding of the learned Courts is that said respondent was a tenant under
the appellant-plaintiff.
10. Shri Prabhakar has also urged that the finding of the learned trial
court and the first appellate Court with regard to the title of the
plaintiff is without any basis. It is also pointed out that the first
appellate Court had verbatim reproduced the findings of the learned trial
Court in this regard. The reading of the judgments in question cannot
sustain the above contention. We have also noticed that the High Court had
not discussed the aforesaid aspect of the case in the impugned judgments,
notwithstanding which no grievance has been raised by the respondents
defendants by filing a separate appeal or even by filing a cross objections
in the present appeals.
11. For the aforesaid reasons, we are of the view that the High Court was
not correct in reversing the decrees passed by the learned trial Court
which decrees were affirmed by the first appellate Court. We, therefore,
set aside the orders of the High Court and restore the orders of the courts
below decreeing the suits (O.S. Nos.760 and 761 of 1996).
12. The appeals are allowed in the above terms.
13. In the light of the above, the contempt petitions are also closed.
…….....................,J.
(RANJAN GOGOI)
……....................,J.
(N.V. RAMANA)
NEW DELHI
OCTOBER 29, 2015.
