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PETITIONER: CHANDRABHAGABAI & ORS.

       Vs.

RESPONDENT: RAMAKRISHNA & ORS.

DATE OF JUDGMENT:       29/07/1998

BENCH: S.B. MAJMUDAR, M. JJAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J      In this  Appeal by  way of  special leave, the heirs of original Plaintiff  No. 1  and the remaining Plaintiff Nos.2 to 8,  have brought  in challenge  the  judgment  and  order rendered by the High Court of Bombay dismissing their Second Appeal and  confirming the decree of is missal of their suit by the  Trial Court  and as confirmed by the First Appellate Court.  In   order  to   highlight  the  grievances  of  the appellants in  the present proceedings, it will be necessary to note a few relevant introductory facts. BACKGROUND FACTS:      We shall  refer to the appellants as Plaintiffs and the respondents as Defendants for the sake of convenience in the later part  of this judgment. The Plaintiffs filed a Regular Civil Suit  No. 246  of 1970  in the  Court of the 4th Joint Civil Judge,  Junior Division,  Nagpur for possession of the suit property,  which, according to them, consisted of three rooms in their house situated at Circle No. 13/19, Tandapeth in nagpur  city. Their  case was that for brother along with Ramkrishna,  s/o   Suryabhan  and  one  Shankar,  s/o.  Soma mortgaged the  house including the suit three rooms with one Maroti Laxman  and Narayan  Vithobaji, who  formed  a  joint Hindu  family   along  with   other  members.  The  original mortgagees  filed   a  Civil  Suit  No.  19-A  of  1935  for recovering the  mortgage debt  by sale of suit house and for final decree  for sale. The plaintiffs’ further case is that on 4th  April, 1938 the mortgaged house was auctioned and it was purchased  by Narayan,  one of  the decree  holders.  On confirmation of  the sale,  a sale-certificate (Exh. 32) was issued in  favour of Narayan. The sale-certificate dated 6th July, 1938  (Exh. 32)  is at  page 49  of  the  paper  book. Narayan is stated to have taken possession of the suit house through Court  on 22nd  December, 1938.  It is  then alleged that Narayan  had rented  out a portion of the said house to Suryabhan in  1939 on a monthly rent of Rs.9/- . The portion of the  house which  was stated  to have  been rented out to Suryabhan, however, was not described in the schedule to the plaint, though  it was  stated  to  be  described  as  such. According to  the plaintiffs’, Narayan’s name was mutated in

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the municipal records and it was he who was paying the taxes and exercising  all the  rights of ownership. It was alleged that Suryabhan  failed to  pay the  rent and  hence, Narayan obtained  permission   of  the   House  Rent  Controller  on 20.7.1959 (Rev.  Case No.  688/A-71 (2)  of 58-59  under the provisions of  the Central Provinces and Berar Regulation of Letting of  Accommodation Act, 1946 (hereinafter referred to as ’the  Act’) read with Central Provinces and Berar Letting of Housing and Rent Control Order, 1949. it may be stated at this juncture  that earlier  though the Rent Controller took the view  that Suryabhan  was tenant of Narayan, application for permission  to evict  him  was  rejected  in  the  first instance. However,  the Addl.  Collector, Nagpur  in  appeal while agreeing  with the  view of  the Rent  Controller that there was  a relationship  of landlord  and  tenant  between Narayan  and  Suryabhan,  allowed  the  appeal  and  granted permission to  Narayan to terminate the tenancy of Suryabhan by his  decision dated  29th April, 1960. This can be called the first  set of proceedings. On the basis of the aforesaid permission, Narayan  issued notice of termination of tenancy and filed a Civil Suit No. 120 of 1966 for possession of the suit property  consisting of  three rooms. The filing of the said suit may be treated as second set of proceedings.      In the  second set of proceedings, though initially the Trial Court  decreed the  suit, in Civil Appeal 162 of 1967, the suit  was dismissed  on the  ground that  there  was  no relationship of  landlord and  tenant  between  Narayan  and Suryabhan. The  said appellate  decision was rendered by the 4th Extra  Assistant Judge on 16th August, 1969. Thereafter, the plaintiffs  have filed  the Suit  No. 246  of 1970  from which the present proceedings arise on the strength of title for possession, accepting the finding of the Appellate Court rendered in  Civil Appeal  No. 162  of 1967  on 16th August, 1969, as  aforesaid. This  suit of  1970 can  be treated  as third set of proceedings.      In  the   present  suit,   two   questions   fell   for consideration of the Trial Court:      i)  Whether   the  plaintiffs   had      proved  their  title  to  the  suit      rooms;      ii) If  yes, whether the defendants      were in  adverse possession  of the      suit property.      After  permitting   the  contesting   parties  to  lead evidence in  support of  their respective  cases, the  Trial Court came  to the conclusion that the Plaintiffs had failed to  establish   their  title   to  the   suit  property.  An alternative finding  was also  rendered on evidence that the defendants  had   proved  adverse  possession  in  the  suit property. Consequently, the suit was dismissed on 30.3.1970. The  appellants,  unsuccessfully  contested  the  matter  in appeal which  came to  e  dismissed  by  the  learned  Extra Session  Judge  on  6th  September,  1973.  Thereafter,  the plaintiffs approached  the High Court in Second Appeal 68 of 1974. The  said second  appeal was  dismissed on 28th April, 1987. That is how the appellants plaintiffs are before us by way of this appeal on special leave. RIVAL CONTENTIONS:      Shri U.  U. Lalit,  learned counsel for the appellants, vehemently  contended  before  us  that  the  courts  below, including the  Trial Court,  had committed a patent error in not suing  the plaintiffs on the ground that they had failed to prove  ownership of  the suit property. He submitted that the sale certificate (Exh. 32) clearly mentioned the name of the place  where the  property is  situated along  with  its

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certificate number.  Not only  that, even  the boundaries of the  suit   property  were   also  mentioned   in  the  sale certificate issued  by the  competent authority in execution of the  court decree  wherein the  plaintiffs’  predecessor, Narayan was  held  to  be  the  auction  purchaser  of  this property. In  this connection, in support of his submission, the learned  counsel also  sought to rely upon the reasoning adopted by  the Rent  Controller as well as by the appellate authority under  the Rent  Control  Order  for  showing  the defendants’  predecessor-in-title.   Suryabhan  had  clearly admitted  in   the   assessment   proceedings   before   the municipality that  he was  a tenant  of  Narayan  and  hence landlord-tenant relationship  was held  proved and  the said finding was  binding on  the Civil  Court which subsequently entertained the  plaintiffs’ suit  No. 120  of 1966.  As the Appellate Court  in Civil Appeal No. 120 of 1966 went behind the said findings and held that there was no relationship of landlord and  tenant  between  Narayan  and  Suryabhan,  its decision on  this point  was without  jurisdiction and could not  act   as  res  judicata.  On  the  basis  of  the  said contention, it  was further  submitted that hence it must be held that  Narayan  was  the  owner  of  the  suit  property occupied by  Suryabhan and  equally the  claim of  Suryabhan that he was in adverse possession of the property would also not survive  as even  assuming that  Suryabhan had  put up a hostile title  at the  earliest  in  1959  in  rent  control litigation, as  the first  suit was filed on the strength of the title  in 1970,  12 years of hostile possession prior to this suit  was not  established. Consequently, the plaintiff was  entitled  to  succeed  also  on  the  ground  that  the defendant’s  predecessor   Suryabhan  had   not  established adverse possession of 12 years and more prior to the date of the suit.      The learned  counsel, appearing  for the  respondents - Shri A.  K.   Sanghi, submitted  that all  the  courts  have concurrently held  that the plaintiffs have not been able to show that  the suit  premises were  purchased by  them in  a Court auction  and that  they formed the sale property which was covered by the sale certificate (Exh. 32), Consequently, the plaintiffs’  suit on  title was rightly dismissed by the Courts below.  He further  submitted that the question about landlord  and   tenant  relationship   between  narayan  and Suryabhan stood  finally concluded  against Narayan  by  the decision of  the Appellate Authority in Civil Appeal No. 162 of 1967.  That the  question of  jurisdiction of  the  Civil Court to  decide this  question do novo despite the contrary decision of  the Rent  Control Authorities  was also decided against Narayan  in Civil  Appeal No.  162 of  1967 and that decision had  become final.  Consequently, right  or  wrong, that decision  operated  against  narayan.  It  was  further submitted that  there was  no question  of any  admission of Suryabhan in  favour of  Narayan in  assessment  proceedings before the  municipal authorities  as Suryabhan’s’ statement was not  legally proved  on the  record of the present case. Therefore, the  only document  which remained for supporting the plaintiffs’  case was auction sale certificate (Exh. 32) which did  not connect  Narayan’s title to the suit premises and consequently both on title as well as on the question of the adverse  possession, the  finding reached  by the courts below and as confirmed by the High Court, have remained well sustained  on  record.  It  has  been  found  on  fact  that Suryabhan remained  in possession  as owner of this property since last  more than  30 years  prior to  the filing of the suit in  1970 and  consequently, the  plaintiffs’  suit  was required to  be dismissed  and was  rightly dismissed by the

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Trial Court  and that  decree of  dismissal was  rightly not interfered by  the First  Appellate Court  as well as by the High Court.      In  view   of  the  aforesaid  rival  contentions,  the following points arise for our consideration:      (1) Whether  the  plaintiffs’  have      been able  to prove  their title to      the suit premises;      (2) Whether the finding of the Rent      Control Authorities  was binding on      the Civil  Court in  Civil Suit No.      120 of  1966  which  was  filed  by      Narayan pursuant  to the permission      obtained  by   him  from  the  rent      control appellate authority;      (3)  Whether   Suryabhan   was   in      adverse  possession   of  the  suit      property.      We  shall deal with these points seriatim. Point No. 1 ---------------      So far as the question of plaintiffs’ title to the suit property is  concerned, it  has to  be kept in view that the only evidence  on which  plaintiffs  could  rely  was  slae- certificate (Exh. 32). When we turn to the said certificate, we find  that the  property which  was the subject matter of the sale certificate is described as the House More Division No. 3 Serial  No. 13/19, Landa Peth Tah, District Nagpur. It was sold  to  Narayan  in  court  auction.  Of  course,  the boundaries of  the said  property were also mentioned in the certificate but  the exact  number of  the property  is  not mentioned therein.  The location  of the house purchased  by Narayan is indicated to be one in Division No. 3 Serial  No. 13/19 in locality of Landa Peth Tah in Nagpur town. However, the question is whether this is the same house in which suit property is  situated as  the plaintiffs  have staked  their claim  for  these  three  rooms  on  the  strength  of  this certificate. The Trial Court as well as the Appellate Court, on facts  have found  that the auction certificate (Exh. 32) does not  clearly connect  the property  covered by the said certificate (Exh.  32) with the suit rooms. Reliance is also placed on  one feature  of the  case namely, that the plaint has recited that in the schedule attached to the plaint, the description of the suit property is given. But that schedule is conspicuously  absent and not traceable on the record. It is also  found that  the so called statement of predecessor- in-interest  in   title  of   present  defendants’   namely, Suryabhan before  the  municipal  authorities  is  also  not proved on record. Consequently, the only evidence to support the case of the plaintiffs is furnished by sale- certificate (Exh. 32)  and when  that document  does not clearly connect property covered by the certificate with the suit rooms, the finding reached  by the  Trial Court and as confirmed by the Appellate Court as a final court of fact that the plaintiffs failed to establish their title to the suit premises, cannot be said  to be  in any way illegal. It remained a finding of fact based  on  relevant  evidence  which  was  rightly  not interfered with by the High court on Second Appeal. It must, therefore, be held that in this third set of proceedings the plaintiffs failed  to establish  their  title  to  the  suit rooms. This point for determination will have to be answered against  the  appellants  accordingly.  Once  the  aforesaid decision is  reached on  point no.  1, nothing further would survive in this appeal. However, the learned counsel for the appellant had  raised further  contentions  covered  by  the

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remaining two points. In fairness to him, therefore, we deem it fit to deal with them on merits. Point No. 2      It is  true that  in the  first set  of proceedings the Rent Controller as well as the appellate authority under the Act have  held that  there was  relationship of landlord and tenant between  Narayan and  Suryabhan. There  was also some force in  the contention  of the  learned  counsel  for  the appellants that  once the Rent Control Authorities held that there was  relationship of  landlord and  tenant between the contesting parties, the title of Narayan can be said to have been impliedly  accepted and  held in  his favour  by  these authorities. However,  the real  question is whether despite such a  finding reached  by the rent control authorities, in the consequential  suit filed by the plaintiff Narayan after terminating the  tenancy of the defendants under Section 106 of the  Transfer of  property Act,  i.e. the  second set  of proceedings, the  Civil  Court  could  go  beyond  the  said finding and  could reach  the contrary finding to the effect that there  was  no  relationship  of  landlord  and  tenant between Narayan  and Suryabhan. However, we are not required to examine  the said  contention which  seeks to rely on the decision of  this Court  rendered in  the  case  of  Pralhad Lanchad Chavan  vs.  Iqbal  Hussain  Inayat  Hussain  Badri, 1996(5) SCC,  428, wherein  it was  held that  once the Rent Controller grants  permission to  the landlord  to determine the lease  by giving  notice under Section 106 on the ground specifying therein,  in the subsequent proceeding before the Civil Court  the decision  of the  Rent Controller about the ground on which such permission is granted could not be gone behind. However,  on the  peculiar facts of this case, it is not necessary  for us  to consider  this contention  in  the present third  set of proceedings for the simple reason that in appeal  against the  decision of  the Trial  Court in the second set  of proceedings  being Civil  Appeal No.  162  of 1967, this  very contention was unsuccessfully canvassed for consideration of  the Civil  Court which  framed point no. 1 for determination as under:      (1)   is it open for the appellants      to  contend   that  they   are  not      tenants of the plaintiffs, in spite      of the decision against them by the      appellate  authority  of  the  Rent      Control Court?      Learned appellate  Judge, after  hearing  the  parties, came to  the conclusion that despite the finding of the Rent Control Authorities  that there was relationship of landlord and tenant  between Narayan  and Suryabhan, the Civil Court, in proceeding  pursuant to  the notice  issued under Section 106   of the  Transfer of  Property Act could reconsider the question  and   it  was   still  open   for  the  appellants (predecessor-in-interest  of  the  present  respondents)  to raise the  contention that  they  are  not  tenants  of  the plaintiffs in  the suit  premises and  that decision  of the Rent  Controller   was  not  binding  on  the  Civil  Court. Unfortunately  for  the  appellants  the  aforesaid  adverse decision rendered  about jurisdiction  of the civil court in Civil appeal No.  162 of 1967 has remained final between the parties as  the plaintiffs did not think it fit to challenge the same  higher up.  On the contrary, the said decision was accepted and  on that  basis and in the light of the finding reached in  Civil appeal  No.  162 of 1967 that there was no landlord and  tenant relation between Narayan and Suryabhan, the present  suit which  is third  set of  proceedings,  was filed by Narayan and other plaintiffs treating Suryabhan and

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others as  persons remaining  in unauthorised  occupation of the suit  rooms. In  other words, plaintiffs themselves gave ago by  to their  case about  tenancy of  the defendants and tried to rely only upon their title to the suit property and sought eviction  on the  strength  of  their  title  in  the present proceedings.  Consequently, on  point no. 2, it must be held  on the  facts of  this case that the finding of the 4th Extra  Asst. Judge  in Civil  appeal No.  162 of 1967 to the  effect   that  there   was  no   landlord  and   tenant relationship between  Narayan  and  Suryabhan  has  remained binding between the parties and being res judicata cannot be reopened in the present proceedings. Point No. 2 is answered in the negative as aforesaid. Point No. 3:      So far  as  the  plea  of  adverse  possession  of  the defendants is  concerned, it  has been  found by  the  Trial Court as  well as  the first  Appellate Court that Suryabhan was not  a tenant  of the  suit  house  and  as  he  was  in continuous possession  of the  suit premises for a period of 30 years  and more  prior to  the date  of the  suit. He had occupied the  same in his own right and consequently, he had become the  owner of  this property  by  adverse  possession against the  plaintiffs, especially,  Narayan.  Efforts made by learned counsel for the appellant-plaintiffs to show that Suryabhan had admitted that Narayan was the landlord both in 1942 when Narayan sought to insert his name in the municipal records as  owner and also in 1958 when Suryabhan is alleged to have made an endorsement on the application of Narayan to the municipality  that he  was a tenant of the suit property since  250   years  cannot  be  of  any  assistance  to  the appellants  for   the  simple  reason  that  none  of  these documents stand  proved on the record of the present case as Suryabhan since  deceased who  is said  to have given such a statement on  endorsement before  municipal authorities  was not available for being confronted with the same for proving it and  that statement  was even  otherwise not  tried to be proved by  the plaintiffs  under Section  32 of  the  Indian Evidence Act. The so called statement was not legally proved in the  present case.  The  courts  below  were,  therefore, justified in taking the view that the plaintiffs cannot base their  case   on  the  so  called  statement  of  Suryabhan. Consequently, it has to be held that Suryabhan had perfected his title  to the  suit rooms  by staying  for more  than 30 years prior  to the  suit as  owners thereof  and  being  in adverse possession  against Narayan. This finding reached by the courts  below and  as confirmed  by the  High Court also remains well sustained on the record of this case. This fact therefore, is  answered in  the affirmative in favour of the respondents and against the appellants.      As the  result of  our  conclusions  on  the  aforesaid points,  the  result  is  that  this  appeal  fails  and  is dismissed. In  the facts  and circumstances.  of  the  case, there will be no order as to costs.