REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   6570         OF 2008 (Arising out of SLP (C) No.2485 of 2007)

P.H. Dayanand … Appellant

Versus

S. Venugopal Naidu & Ors. … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. The short question that arises for consideration in this appeal is as to

whether the  Courts  below were correct  in decreeing the  suit  only on the

premise that defendant No.2-appellant could not prove his title.

3. The basic fact of the matter is not in dispute.  The plaintiff-respondent

No.1 purchased the suit property in the year 1991 from one T. Bayarappa.

Apparently plaintiff-respondent No.2 was in permissive possession thereof.

As despite request he refused to vacate the licensed premises, the suit was

filed.

4. On the other hand, the defence of the appellant before us was that he

had been in lawful possession of the property in his own right.   

Appellant,  inter  alia,  contended  that  the  original  owner  of  the

property, viz., Shri T. Bayrappa had entered into an agreement of sale with

one Shri  Krishnamurthy.  A Power of Attorney was also executed in his

favour.  The said Krishnamurthy has assigned his rights under an agreement

in  favour  of  denfendant  No.1,  (late  Shri  G.  Srinivas)  and  delivered

possession  of  the  property  to  him.   Shri  Srinivas  raised  constructions

thereupon.   Shri  Krishnamurthy  allegedly  as  an  agent  of  T.  Bayrappa

assigned his rights in favour of G. Srinivas on 10.5.1997.   

He  filed  a  suit  for  specific  performance  of  contract.   It  was

furthermore claimed that Shri Srinivasan entered into an agreement with the

petitioner to convey the property for a total consideration of Rs.9,60,000/-.   

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A joint written statement was filed in the said suit by the contesting

defendants.  Admittedly, however, the said suit for specific performance of

contract was withdrawn.  An additional written statement was filed by the

petitioner  claiming  his  title  under  the  aforementioned  agreement  entered

into by and between him and the defendant No.1

5. The learned Trial Court framed a large number of issues.   

Parties adduced their respective evidences on the said issues.   

The suit was decreed and the first appeal filed thereagainst was also

dismissed by the High Court by reason of the impugned judgment.

6. Mr. Nageshwar Rao, learned senior counsel appearing on behalf of

the appellant, in support of the appeal at the outset, drew our attention to the

fact that although plaintiff purported to have purchased the suit property in

the year 1994 but from the records it would appear that he allegedly entered

into an agreement for sale with Shri T. Bayrappa in the year 1991.  The

Power  of  Attorney  was  also  executed  in  his  favour  authorizing  him  to

encumber and alienate the said property.

It was pointed out that from the record it would furthermore appear

that the plaintiff-first respondent filed a writ petition before the High Court

of  Karnataka  alleging  that  Bangalore  Development  Authority  had  been

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making attempts to dispossess him and demolish the structures on the land

when his application for regularization of construction was pending before

the said Authority.    Learned counsel  would contend that  from the said

records, thus, it would appear that the land in question had been acquired by

the Bangalore Development Authority and, thus, the plaintiff having lost his

title,  the  question  of  defendant  No.2’s  being  in  permissive  possession

thereof would not arise and thus, the suit filed by the plaintiff claiming title

over the property could not have been decreed.

7. Mr.  P.V.  Shetty,  learned  counsel  appearing  on  behalf  of  the

respondent, on the other hand, would support the judgment.

8. Both the courts below have concurrently found the contentions of the

plaintiff-respondent  that  he  had purchased  the  property from the rightful

owner  T.  Bayrappa.   Even  according  to  the  appellant,  the  purported

transaction  between  Shri  T.  Bayrappa  and  Shri  Krishnamurthy  and

defendant No.1 did not result in execution of a registered deed of sale in his

favour.   Admittedly,  the defendant  No.1  himself  filed  a  suit  for  specific

performance of the contract against  his vendor.  It  has concurrently been

found by both the courts  that the defendant  No.2 cannot be said to have

acquired any title over the property, particularly when the defendant No.1

himself  withdrew  the  suit  for  specific  performance  of  contract.   It  was

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furthermore  noticed  that  even  the  purported  agreement  for  sale  was  not

produced before the trial court by the defendant No.1.   

10. When questioned, Mr. Nageshwar Rao conceded that there is nothing

on record to show that the Bangalore Development Authority at any point of

time has acquired the property in suit in terms of the provisions of the Land

Acquisition Act, 1894 or otherwise. Admittedly, the plaintiff’s vendor was

in possession of the suit  property.  It is  only through him, the defendant

No.1 and defendant No.2 claimed possession.  As the original owner has

transferred  his  title  in  favour  of  the  plaintiff-respondent,  the  court  was

required to go into the question of inter se claim between the parties on or

over the land in dispute.  Even if plaintiff and his vendor has been in prior

possession, the defendant No.2 who came in permissive possession of the

property through him cannot be said to have acquired a better title than the

plaintiff.   

This aspect of the matter has been considered in Somnath Burman v.

Dr. S.P. Raju & Anr. [(1969) 3 SCC 129] wherein this Court held :

“It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his  title  to  the  suit  property  as  well  as  its possession within twelve years.  According to the appellant, except in a suit under Section 9 of the

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Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property  and  its  possession  within  twelve  years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to  1945  is  a  good  title  against  all  but  the  true owner.  The defendants who are mere trespassers cannot defeat the plaintiff’s lawful possession by ousting  him from the  suit  property.   Possessory title is a good title as against everybody other than the lawful owner.”

11. Mr. Nageshwar Rao, however, drew our attention to a decision of this

Court  in  Ramchandra Sakharam Mahajan v.  Damodar  Trimbak Tanksale

(Dead) & Ors. [(2007) 6 SCC 737], wherein it was held :

“13. The suit is for recovery of possession on the strength of title.  Obviously, the burden is on the plaintiff  to  establish  that  title.  No  doubt  in appreciating the case of title set up by the plaintiff, the court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence  or  the  failure  of  the  defendants  to establish the title set up by them, would not enable the  plaintiff  to  a  decree.  There  cannot  be  any demur to these propositions.”

12. The said decision, thus, itself is an authority for the proposition that

the court is entitled to take into consideration the defence of the defendants.

The sole question which arose for consideration before the Court  therein

was as to which of the parties had a better title.

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13. For the reasons aforementioned, there is no merit in this appeal.  It is

dismissed accordingly.   

As a finding of fact has been arrived at by the courts below that the

appellant had been prolonging the hearing of the suit, he must pay and bear

the costs of the first respondent.  Counsel’s fee assessed at Rs.75,000/-.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; November 7, 2008

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