REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1367  OF 2009 (Arising out of SLP (C) No.20957 of 2004)

Kausalyabai & Akkabai (Dead) By LRs. … Appellants

Versus

Harishchandra Munnalal Gupta … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Defendant  in a suit  for recovery of possession filed by her brother

(Respondent)  is  before  us  challenging  the  legality  and/or  validity  of  the

judgment and order dated 29.6.2004 passed by a learned Single Judge of the

High Court  of  Judicature  at  Bombay,  Nagpur  Bench,  Nagpur  in  Second

Appeal  No.13  of  2001  dismissing  an  appeal  preferred  by  the  appellant

herein  against  a  judgment  and  order  dated  7.12.2000  whereby  and

whereunder the judgment and order dated 25.01.1995 passed by the learned

Trial Judge was reversed.

3. Original  parties  to  the  suit  were  brothers  and  sisters.   They  had

another  brother,  Dr.  D.C.  Gupta.   The  property  in  suit  is  said  to  be  an

ancestral  property.  Appellant  became a widow in  1945.   She,  therefore,

came to stay with her parents.  Father of the original parties died in 1947.

Respondent  and  his  brother,  therefore,  became  owner  of  the  properties.

Plaintiff-respondent  was  a  Constable.   He  had  been  occupying  a

Government accommodation.  Allegedly, he allowed his sister to stay in his

house, inter alia,  on the condition that she would vacate the same on his

retirement.

4. Plaintiff in his plaint alleged that the defendant was a licensee, which

was revoked by a notice dated 3.5.1982.  As despite the same, the defendant

did not vacate the licenced premises, the suit was filed.   

Plaintiff, inter alia, contended that he had been granted a permanent

lease  by  an  order  passed  by  Nayab  Tehslidar  on  30.11.1979.   Plaintiff,

however, did not implead his brother or his heirs or legal representatives in

the said suit.  Defendant-appellant, however, contended that she had been in

possession of the premises in suit even before her husband’s death and has

allegedly been  exercising  all  rights  of  ownership  in  the  property  in  suit

2

including payment of all rates and taxes.  The suit was filed on 9.6.1982.

Allegedly, in the proceedings before the Nayab Tehsildar, the defendant was

not  a  party.   She  came  to  know  about  the  proceedings  before  the  said

authority in respect of grant of permanent lease on 4.5.1982.  She filed a

review application on 20.8.1982.  The said review petition was dismissed.

An appeal was preferred thereagainst and the learned Additional Collector

being the appellate authority by an order dated 20.6.1986 allowed the said

appeal  and  remitted  the  matter  back  to  the  original  authority  in  terms

whereof,  the  review  application  revived.   By  reason  of  an  order  dated

19.1.1991,  Collector,  Buldhana  revoked  the  said  grant  in  favour  of  the

plaintiff upon setting aside the order dated 30.11.1979.  Plaintiff preferred

an  appeal  thereagainst.   By  reason  of  an  order  dated  25.1.1995,  the

Additional  Commissioner,  Amravati  Division,  Amravati  allowed the  said

appeal in part directing the Collector to await final decision of a competent

court whose decision is final and take action accordingly.

5. The defendant sought leave for amendment of her written statement

inserting paragraphs 8(A) and 9(A) which are in the following terms :

“8(A)Without prejudice to any above contentions it is submitted that this defendant is in possession of  the  suit  plot  openly,  continuously,  peacefully and without any interruption as owner of the suit plot and showing hostile attitude towards all since last  more  than  30  years  and  therefore  this

3

defendant has acquired title by adverse possession. That the plaintiff has no title to the suit property and  he  failed  to  establish  the  same.   Therefore, instant suit not at all maintainable and cannot lie. That the electric meter in the suit house is in the name of  this  defendant  since  beginning and this defendant has paid the charges for the same.  That the taxes of the suit plot were also borne by this defendant.  It is submitted that, this defendant has acquired the title of the suit plot by way of adverse possession and therefore, the plaintiff has no locus standi to file the present suit against him.  The suit is also bad for non-joinder of necessary party and hence  the  suit  of  the  plaintiff  deserves  to  be dismissed with costs.

9(A)  Without  prejudice  to  the  contents  made above,  alternatively,  it  is  submitted  that  the plaintiff has no locus to grant alleged licence and further even if the story put forth by the plaintiff is taken as it is in relations with property in question five  on  licence  then  the  Civil  Court  has  no jurisdiction to entertain and try present suit as the property  in  question  comes  within  the  amended provision of Central Provinces and Barer letting of Houses  and Rent Control  Order  1949 and hence unless  and  until  permission  to  that  effect  is  not obtained from the competent authority for issuing quit  notice  and  legally  the  alleged  lease  is  not terminated,  no suit  for possession can be against the defendant.”

6. The suit was dismissed by the learned trial Court by a judgment dated

16.7.1985.  Plaintiff  preferred an appeal thereagainst.  The First  Appellate

Court, however, was of the view that the learned Trial Judge was not correct

4

in dismissing the suit as the plaintiff had derived title over the suit land and

the defendant had no title therefor.  

It  was furthermore opined that  the plea of  adverse possession  was

also not available to the defendant. A Second Appeal preferred thereagainst,

as noticed hereinbefore, has been dismissed in limine.

7. Mr.  Manish  Pitale,  learned  counsel  appearing  on  behalf  of  the

appellant,  would  contend  that  despite  the  fact  that  several  substantial

questions  of  law  arose  for  consideration  before  the  High  Court,  it

erroneously  dismissed  the  appeal  in  limine,  inasmuch  as  the  subsequent

events,  namely,  that  the  order  passed  by  the  Nayab  Tehsildar  dated

20.12.1979 ceased to have any force, was not taken into consideration.

8. The learned counsel appearing on behalf of the respondent, however,

would support the impugned judgment.

9. Plaintiff-Respondent in the suit  proceeded on the basis that  he had

title over the property in suit by reason of the grant of permanent lease in

terms  of  the  order  dated  30.11.1979  passed  by  the  Nayab  Tehslidar.

However, the said order having regard to the subsequent event must be held

to  have  not  attained  finality.   If  the  contention  of  the  appellant  that  the

property belonged to her father, and the same devolved on plaintiff and his

5

brother in equal shares, is correct, the subsequent events which have taken

place, in our opinion, should have been taken into consideration by the High

Court.  If the other brother of the plaintiff had equal share in the property,

who is now dead, and whose heirs and legal representatives are said to be

residing in the same premises,  the  High Court  may have to  consider  the

effect  of  their  non-impleadment  in  the  suit.   Plaintiff,  as  noticed

hereinbefore, filed the suit only in terms of the order of grant of permanent

lease on or about 30.11.1979.  If that has not attained finality by reason of

the  subsequent  events  and  awaiting  the  decision  of  the  Civil  Court,  the

effect thereof must be taken into consideration by the High Court.

10. For the reasons aforementioned, the impugned judgment is set aside

and the matter is remitted to the High Court for consideration of the matter

afresh upon formulating substantial questions of law.

11. The  appeal  is  allowed  with  the  aforementioned  observations.   No

costs.  

………………………….J.         [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

6

New Delhi;

March 3, 2009

7