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CASE NO.: Appeal (civil)  3540 of 2002

PETITIONER: B. ARVIND KUMAR

RESPONDENT: GOVERNMENT OF INDIA & ORS.

DATE OF JUDGMENT: 28/05/2007

BENCH: R.V. Raveendran & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

R.V. Raveendran, J.

       This is an appeal by special leave against the judgment and decree  dated 10.7.2001 in RFA No.181/1996 passed by the High Court of  Karnataka reversing the judgment and decree dated 8.12.1995 passed by  the III Addl. City Civil Judge, Mayo Hall, Bangalore in his suit           OS.No.10653/1987. For convenience, the appellant will also be referred  to as ’plaintiff’ and respondents as ’defendants’.    2.      Appellant filed the said suit alleging that suit land measuring  2550 sq. yds. had been leased in perpetuity by the military authorities  (General Officer Commanding, Madras District, Bangalore) to M/s S.  Giridharilal & Son, a proprietary concern under a registered lease deed  dated 30.9.1921; that the lessee put up several structures thereon and  was in possession and enjoyment thereof as absolute owners; that G.  Anraj Sankla, proprietor of Giridharilal & Son was declared as insolvent  in Insolvency Case No.7 and 12 of 1940 on the file of the District Judge,  Civil & Military Station, Bangalore and the Official Receiver took  charge of the insolvent’s properties including the said land with  buildings (for short ’suit property’); that the Official   Receiver put up the  suit property for sale by auction; that M. Bhowrilal, father of plaintiff  was the highest bidder and the sale of the right, title and interest of  Anraj Sankla that is, his leasehold rights, in regard to the suit property in  favour of M. Bhowrilal was confirmed on 25.8.1941 and Sale Certificate  was issued to him on 29.8.1941 which was duly registered.  After the  death of his father on 21.7.1969, he came into possession and enjoyment  of the suit property. According to the appellant though the lease was one  in perpetuity, it was an absolute grant and since no premium or rent was  fixed, the enjoyment was to be perpetual and absolute. When matters  stood thus, the Commanding Officer of Station Headquarters, Bangalore  (Fourth Defendant), under instructions from the first defendant, illegally  and unauthorizedly dispossessed him from the suit property in  September, 1975, during the emergency period. Thereafter, he was  corresponding with the Defence Ministry for relief, and they went on  promising to look into the matter. Ultimately, as they failed to give any  relief, he issued a notice through counsel under Section 80 of the Code  of Civil Procedure on 8.5.1984, followed by another notice dated  13.4.1987, claiming possession of the suit property.  As the said demand  was not complied with, he filed the suit (OS No.10653/1987) on  21.8.1987 for the following reliefs:

(a)     for a declaration that he was the absolute owner of  the suit  property;

(b)     for a direction to the defendants to deliver back possession  of the suit property to him; and

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(c)     for mesne profits, costs and other appropriate reliefs.

3.      The suit was resisted by the Defendants-Respondents.  They   contended that S. Giridharilal & Son was only a lessee and therefore,  plaintiff even if he was the successor-in-interest could under no  circumstances, claim absolute ownership.  It was also alleged that they  had taken action for resumption of the leased land for contravention of  the terms of lease (construction of unauthorized structures and failure to  notify the lessor about transfer of the leasehold rights) and the suit land  was surrendered without protest.  The allegation of forcible  dispossession in September, 1975 was denied. It was also contended that  the only relief sought by the plaintiff in his several representations and  letters, in respect of the resumption of the leased land, was  compensation for the structures; that the claim was not entertained as the  structures were unauthorized; and that if there was any dispute or  outstanding claim in that behalf, he should have sought reference to  arbitration in terms of the lease-deed, and the suit was misconceived and  not maintainable.   

4.      On the said pleadings, the trial court framed the following issues :  

(1)     Whether the plaintiff proves that he is the absolute owner  of the suit property;

(2)     Whether the defendants prove that there was contravention  of the terms of lease deed dated 30.9.1921?

(3)     Whether the Defendants prove that the plaintiff has  expressed his intention not to seek possession of the suit  property?

(4)     Whether the Defendants prove that the suit is barred by  time?

(5)     Whether the Defendants prove that suit is not maintainable  for the reasons stated in para 12 of the Written Statement.

(6)     Whether the defendants prove that suit is bad for non- joinder of necessary parties?

(7)     Whether the defendants prove that court fee paid is  insufficient?

(8)     What relief the parties are entitled to.

Plaintiff examined himself as PW1 and got exhibited Ex.P1 to Ex.P43.  The Defendants also examined one witness. After appreciating the oral  and documentary evidence, the trial court decreed the suit in part. It  answered the first issue against the plaintiff by holding that plaintiff had  not acquired ownership. It held issues (2) to (6) against the defendants.   It held that issue No.(7) did not survive for consideration.  As a  consequence, it rejected the prayer for declaration of title and granted  the relief of possession to the Plaintiff and ordered a separate enquiry  regarding mesne profits.   

5.      Feeling aggrieved, the defendants filed RFA No.181/1996 before  the High Court.  The High Court by judgment and decree dated  10.7.2001 allowed the appeal and dismissed the suit.  The judgment of  the High Court is based on the following findings of facts:

(a)     The lease under deed dated 30.9.1921 (Ex.P1) was not a  lease in perpetuity, but only a tenancy at will.

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(b)     The sale certificate in favour of plaintiff’s father (Ex.P3  dated 29.8.1941) was not followed by a registered  instrument transferring the lessee’s interest in favour of  plaintiff’s father. Therefore, no title was conveyed to  plaintiff’s father, in regard to the suit land.   (c)     There was a clear embargo in the lease deed in respect of  transfer of the leasehold interest, without notice to the  lessor and without the consent of the lessor. There was no  notice to the lessor in regard to the sale of leasehold right  nor consent for such auction sale. Therefore, the transfer of  leasehold interest was void, even though it was a court sale.  

(d)     The possession of plaintiff’s father and later that of plaintiff  was no better than that of a trespasser as there was no valid  transfer.

(e)     As plaintiff had failed to prove title or leasehold interest, he  was not entitled to recover possession on the basis of  possessory title. Nor was he entitled to restitution of  possession, on the facts of the case.   

6.      The appellant has challenged the said judgment and decree of the  High Court. He contends that the findings recorded by the High Court  are erroneous and contrary to the evidence and therefore, the judgment  of the High Court is liable to be set aside.  The contentions of appellant  gives rise to the following points for consideration :  

(i)     Whether the lease under deed - Ex.P1 dated 30.9.1921, is a  perpetual lease.  

(ii)    Whether the plaintiff’s father did not secure any manner of  right, title or interest in the suit property, as the sale  certificate in his favour was not followed by a registered  deed of transfer.

(iii)   Whether the transfer of leasehold interest in favour of  plaintiff’s father was void, for want of notice to lessor and  consent of the lessor.

(iv)    Whether the plaintiff was forcibly dispossessed in  September 1975 and entitled to a decree for possession.

(v)     Whether the suit was barred by limitation.

Re: Point (i)

7.      Section 105 of Transfer of Property Act, 1882 defines lease as  follows : "A lease of immovable property is a transfer of a right to enjoy  such property, made for a certain time, express or implied or in  perpetuity, in consideration of a price paid or promises or of  money, a share of crops, service or any other thing of value, to be  rendered periodically or on specified occasions to the transferor by  the transferee, who accepts the transfer on such terms.

Lessor, Lessee, Premium and Rent defined - The transferor is  called the Lessor, the transferee is called the Lessee, the price is  called the Premium, and the money, share, service or other thing to  be so rendered is called the Rent."   

Thus the essential ingredients of a lease are : (a) There should be a  transfer of a right to enjoy an immovable property; (b) Such transfer  may be for a certain term or in perpetuity; (c) The transfer should be in

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consideration of a premium or rent; (d) The transfer should be a bilateral  transaction, the transferee accepting the terms of transfer.  

8.      In this case the plaintiff claims that the suit land was leased in  perpetuity by the General Officer Commanding, Madras District,  Bangalore under Ex.P1 dated 30.9.1921. Condition II provides that the  lessee can erect buildings on the schedule land only in accordance with  the plan with the written permission of the General Officer  Commanding or by any of his principal staff officers. Condition III  provides that the land shall not be used for any purpose other than that  specified in the lessee’s application. Condition III (A) provides that no  rent is payable in respect of the lease. Condition IV provides whenever  it is intended to transfer the leasehold interest by sale, gift, mortgage or  exchange, the lessee or the intending transferor shall give the lessor one  month’s notice in writing before the transfer is completed; and the lessor  shall have the power to veto on any such transfer within one month. It  further provides that if notice of such intended transfer was not given or  if such transfer was made after the same has been vetoed, the transfer  shall be void. Condition V provides that every person, on whom the  lessee’s interest in the land or the buildings erected on the land may  devolve by transfer, by succession or by operation of law, shall send to  the lessor within one month from the date of such devolution, a report in  writing of that fact together with such particulars as may be required.  Condition VII provides that so long as the lessee observes the conditions  to be observed by him, he may subject to condition IX, hold the land for  ever without interruption. Condition IX provides that the lessor may  resume the land or any portion thereof at any time after giving one  month’s notice in writing and on payment of compensation for the  buildings erected on the land, upon proper authority; and if there is any  dispute as to the amount of such compensation, the same shall be  referred to a Committee of Arbitration and the lessee shall be bound by  the decision of such Committee of Arbitration.  

9.      To decide the duration of the lease, the deed has to be read as a  whole. The deed dated 30.9.1921 does not specify any duration, but  permits the lessee to hold the land forever subject to the right of the  lessor to resume the land by giving one month’s notice. There is no grant  in perpetuity. The right of the lessor to resume the land by giving a  month’s notice, is unconditional at the absolute will and discretion of the  lessor, whenever he desires. These terms indicate that though the  instrument was termed as a lease, it only granted permissive occupation  terminable at the will of the owner, and therefore, at best a tenancy at  will. The absolute discretion to resume the land at any time without  assigning any reason, and absence of any express grant in perpetuity and  absence of any consideration, militates against the instrument being  construed as a lease in perpetuity. The learned counsel for appellant  submitted that courts have taken the view that existence of a mere  provision for forfeiture for non-payment of rent or other specified  breach, in a deed granting permanent lease, will not make the lease non- permanent. Such line of decisions, may not assist the appellant as a  provision for determination of the lease for a specified breach, is in no  way comparable to reservation of an absolute right to resume at will  without assigning any reason, in a lease without consideration. We,  therefore, affirm the finding that Ex.P1 is not a lease in perpetuity. We,  however, desist from examining the further question whether the lease  itself was invalid for want of consideration, as such a contention was not  raised in the written statement nor urged before the trial court or High  Court.   

Re : Point (ii)          10.     The plaintiff has produced the original registered sale certificate  dated 29.8.1941 executed by the Official Receiver, Civil Station,  Bangalore. The said deed certifies that Bhowrilal (father of plaintiff)  was the highest bidder at an auction sale held on 22.8.1941, in respect of

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the right, title, interest of the insolvent Anraj Sankla, namely the  leasehold right in the property described in the schedule to the certificate  (suit property), that his bid of Rs.8,350 was accepted and the sale was  confirmed by the District Judge, Civil and Military Station, Bangalore  on 25.8.1941. The sale certificate declared Bhowrilal to be the owner of  the leasehold right in respect of the suit property. When a property is  sold by public auction in pursuance of an order of the court and the bid  is accepted and the sale is confirmed by the court in favour of the  purchaser, the sale becomes absolute and the title vests in the purchaser.  A sale certificate is issued to the purchaser only when the sale becomes  absolute. The sale certificate is merely the evidence of such title. It is  well settled that when an auction purchaser derives title on confirmation  of sale in his favour, and a sale certificate is issued evidencing such sale  and title, no further deed of transfer from the court is contemplated or  required. In this case, the sale certificate itself was registered, though  such a sale certificate issued by a court or an officer authorized by the  court, does not require registration. Section 17(2)(xii) of the Registration  Act, 1908 specifically provides that a certificate of sale granted to any  purchaser of any property sold by a public auction by a civil or revenue  officer does not fall under the category of non testamentary documents  which require registration under sub-section (b) and (c) of section 17(1)  of the said Act. We therefore hold that the High Court committed a  serious error in holding that the sale certificate did not convey any right,  title or interest to plaintiff’s father for want of a registered deed of  transfer.  

Re : Point (iii)

11.     Condition IV of the lease deed provides that a transfer of the lease  by way of sale, gift, mortgage or exchange shall be void if intimation  thereof is not given to the lessee. Condition V requires a report in  writing to be sent to the lessor by the transferee of lessee’s interest by  succession or operation of law. Condition IV deals with transfers inter  vivos (transfer from one living or juristic person to another living or  juristic person) and Condition V deals with devolution by succession or  by operation of law including auction sales confirmed by court. Only  transfers in violation of Condition IV are void. No penal consequence is  specified for failure to comply with Condition V. Therefore, it is not  possible to hold that the auction sale of the leasehold right in favour of  Bhowrilal was void for want of notice to the lessor.

Re : Points (iv) and (v)

12.     In this case the plaintiff approached the Civil Court with a  specific case that he was the owner of the suit property and that he was  illegally dispossessed by the defendants in September 1975 and sought a  declaration of title as absolute owner and for delivery of possession.  He  also contended that as the suit was filed within 12 years from the date of  dispossession, the suit was within time.  The plaintiff admitted in the  plaint that the suit property was leased to M/s S. Giridharilal & Son and  his father purchased only the leasehold right in a court auction in 1941.  Therefore, the trial court rightly found that the plaintiff did not establish  ownership to the suit property and therefore, did not grant the relief of  declaration of title.  That finding attained finality as the Plaintiff did not  choose to challenge the rejection of the prayer for declaration of title.  Therefore, the only question that remained for consideration was  whether the plaintiff has made out any case for the relief of possession.   Plaintiff’s specific case is that in September 1975 during emergency  period, he was forcibly dispossessed.  Obviously, therefore, he will be  entitled to a decree for possession only if he establishes that he was  forcibly dispossessed from lawful possession and such dispossession  was within 12 years prior to the date of the suit (21.8.1987).   

13.     The plaintiff who was examined as PW1 stated that in September,  1975, fourth defendant forcibly dispossessed him from the suit property

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without any notice. No other witness was examined to corroborate his  testimony. No other evidence was let in to show that he was in  possession of the suit property in September, 1975 or that he was  illegally dispossessed. In his cross-examination, he admitted that he was  never in personal possession and that his tenant was in possession.  There was also no evidence in regard to the measurement of the alleged  structures. The evidence of plaintiff shows that neither he nor his alleged  tenant gave any complaint regarding the forcible dispossession. In fact,  no document was produced to show that any tenant of plaintiff was in  possession in 1975. The documentary evidence produced by the plaintiff  himself, however, tell a different story regarding dispossession.    

14.     Ex.P10 dated 6.3.1976 is a letter from plaintiff to fourth  defendant. In that letter, he makes a vague allegation that the defendants  were trying to commit acts of trespass and take forcible possession of  the property.  The said letter was sent nearly six months after September  1975. If he had already been  dispossessed from the suit property in  September 1975, the tenor of the letter would have been completely  different. Be that as it may.  

15.     Ex.P16 dated 27.4.1977, is a letter written by the plaintiff’s  advocate. It states that plaintiff had already furnished necessary  documents and therefore the fourth defendant should take immediate  steps to resolve the question of compensation.  This document does not  speak about forcible dispossession at all.  In Ex.P23 dated 21.2.1979,  Ex.P26 dated 30.1.1980 and Ex.P31 dated 9.3.1981, all referring to the  subject "resumption of defence land (suit property)", plaintiff requests  the defendants to take immediate steps to resolve the question of  compensation.  These letters clearly show that the suit land was already  resumed by the defendants in terms of the lease and that plaintiff was  seeking only compensation and nothing more. In fact, the plaintiff  specifically stated thus in Ex.P31 dated 9.3.1981 :  

"I have already expressed that I have no objection for the  resumption of the land in question provided suitable compensation  for the property created on the land is paid to me."

Again in Ex.P34 dated 11.5.1981 and Ex.P35 dated 16.11.1981, the  plaintiff, with reference to the subject of resumption of the suit land,  requested that compensation be paid to him at the earliest. Alternatively,  he requested that resumption may be cancelled.  

16.     It is thus seen from 1975, when the plaintiff alleges that he was  forcibly dispossessed from the suit property, till 1981 there is no  whisper in any of the letters written by the plaintiff (either personally or  through counsel) about any forcible dispossession in September, 1975.   On the other hand, all the letters specifically refer to resumption of the  land by defendants and seek only compensation. It can be inferred from  these letters that the suit property had been resumed long prior to  September, 1975 in accordance with the terms of the lease deed, that  from about 1976-1977, plaintiff attempted to get some compensation for  the structures, that as the records did not show any authorized structures,  the defence department sought documents and clarifications and plaintiff  furnished some documents to claim compensation. Having failed in his  claim for compensation and being tempted by the steady rise in property  values in the area, the plaintiff has apparently put forth a case of forcible  dispossession in September, 1975.  

17.     Significantly, in the notice dated 8.5.1984 (Exhibit P.40) sent  through counsel under Section 80 CPC, the plaintiff for the first time  alleged that in the year 1975 the military authorities unauthorizedly and  illegally and forcibly dispossessed him from the property.  The month or  date of alleged dispossession is not mentioned. The subsequent notice  dated 13.4.1987 (Exhibit P.42) makes an improvement as it is alleged

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therein that the forcible dispossession was in the year September, 1975.  This was reiterated in the plaint. But the detailed correspondence  consisting of several letters and representations by Plaintiff from 1976 to  1981 do not refer to forcible dispossession but, on the other hand, refers  to resumption of possession by the Defence Department in terms of the  lease and to the claim of plaintiff for payment of compensation for the  structures. It is, therefore, clear that the case of plaintiff that he was  forcibly dispossessed from the suit land in September, 1975 is an  afterthought to grab defence land. As plaintiff has failed to prove  forcible dispossession and the documents disclose that the land was  resumed in terms of the lease dated 30.9.1921 without any protest from  the plaintiff, he is not entitled to the relief of possession, even if such  dispossession was within twelve years before the date of suit. Apart  from merits, the claim for possession is also clearly barred by limitation  as the suit was filed on 21.8.1987 and plaintiff was lawfully  dispossessed several years prior to 1975.  

18.     If at all there is any dispute or issue was pending, that was  relating to the claim for compensation and plaintiff had to seek  arbitration in that behalf by establishing that structures were lawfully put  up with the permission of the lessor and the nature and extent of such  structures. But no such request was made for arbitration. No such relief  is claimed in the plaint. At all events by 1987, there was no surviving  claim for compensation and no request could even be made for reference  to arbitration. The plaintiff - appellant is not therefore entitled to any  relief.

Conclusion  

19.     Though the judgment of the High Court may be erroneous in  regard to certain issues of fact, we find that the final decision of the  High Court to dismiss the suit was correct and just and does not call for  interference.  We, therefore, affirm the decision of the High Court  dismissing the suit.  

20.     The appeal is, accordingly, dismissed. Parties to bear their  respective costs.