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PETITIONER: PROKASH CHANDRA MUKHERJEE & ORS.

       Vs.

RESPONDENT: SARADINDU KUMAR MUKHERJEE & ORS.

DATE OF JUDGMENT04/02/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. RAY, A.N.

CITATION:  1971 AIR 2556            1971 SCR  (3) 666

ACT: Defence  of India Act, 1939 and Rules,  r.  75-A-Requisition and possession by Government-Period, whether could be tacked for purposes of limitation by person to whom possession  was restored. Pleadings-prayer for possession-When can be inferred.

HEADNOTE: The  plaintiff became a co-sharer with the defendant in  the suit  property  in  the  year  1941  as  a  result  of  some conveyances  by  members  of the  defendants’  family.   The property  was in the occupation of military  authorities  by requisition  under the Defence of India Act, 1939,  and  the Rules  made  thereunder, for four years from 1942  to  1946. The defendants were in exclusive possession thereafter  from 1946  to 1955 when the plaintiff filed a suit for  partition and possession of his share. On  the question whether the suit was barred  by  limitation under art. 144 of Limitation Act, 1908, on the plea that  as the  military  authorities  had  taken  possession  of   the property from the defendants and had restored the possession to  them in 1946-the possession of the said authorities  was really under or on behalf of the defendants without  causing any break in the continuity of their possession, HELD  :  The  possession of the Government  was  neither  by permission  of  the defendants nor in the  character  of  an agent  of  the  defendants.   The  orders  of   requisition, relinquishment  of possession and payment,  of  compensation under  the Defence of India Act read with Act and the  Rules how  that the possession was taken by Virtue of  the  powers under   the   Act  and  the  Rules   irrespective   of   any consideration  as  to the rights of the true  owner  or  the occupier who could make a claim to compensation.  Therefore, possession of Government by requisition under rule 75-A can- not  enure  for  the  benefit  of  the  person  who  was  in possession  before, for the purpose of enabling such  person to acquire a prescriptive title. [669 E-F; 670 B-D] Karan Singh v. Bakar Ali Khan, 9 I.A. 99, applied. Bobett  v. South Eastern Railway Co. [1882] 9 Q.B.  424  and Dagdu v. Kalu, 22 Bombay 733, explained.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of 1966. Appeal  by special leave from the judgment and decree  dated June  26,  1964 of the Calcutta High Court  in  Appeal  from Appellate Decree No. 1011 of 1962. S.   V. Gupte and D. N. Mukherjee, for the appellants.- 667 Bishan Narain and P. K. Ghosh, for respondents Nos. 1, 2(c), 2 (d), 2 (f ) and 2 (g). The Judgment of the Court was delivered by- Mitter, J. The main question in this appeal is, whether  the defendants-appellants perfected their title to the  property in respect of which partition was claimed by the  plaintiffs by adverse, possession for the prescriptive-period of twelve years or more. The  relevant  facts are as follows.  The  parties  are  all descendants  of one Durgadas Mukherjee who died  many  years back, leaving six sons and inter alia the property which  is the  subject matter of this litigation, recorded as Dag  No. 444  Khatian No. 72 in Mauja Barasat, District  24  Parganas during the last Cadastral survey.  Of the two plaintiffs the first  Saradindu  is a great grandson of the  said  Durgadas Mukherjee  of  the  branch  of the  youngest  son,  his  co- plaintiff   being  a  grandson  in  another   branch.    The defendants belong to other branches of the said family.  The first plaintiff based his title on several conveyances  from other members of the family as also purchase at an execution sale  of a fractional interest of the members of the  branch of  Bama  Charan, the second son of  Durgadas.   The  second plaintiff  claims by inheritance.  The property consists  of 34  acres  together with two structures  thereon  which  are quite  separate  from  each  other.   One  portion  of   the structures  i.e.  that  to  the  east,  popularly  known  as Bamacharan Babu’s’ Bati is a fairly commodious building with a  separate  municipal number.  The other structure  in  the western  portion  known  as  Baitakhana  Bati  was  and   is admittedly the joint property of the descendants of Durgadas with  a municipal number of its own.  The  plaintiffs  claim that  the  land and the two buildings   are  joint  property while the  whom are appellants before this the said  eastern building  with  the   case of the appellants  was  that  the contesting defendants, some of Court, claim exclusive  title to  land  on  which it stands.  The  eastern  structure  was constructed, by Bama Charan with his own money and that. the co-sharers  of  Bama  Charan, by ekramamas,  gave  up  their interest  in  the land on which the same  stood.   The  High Court agreeing with the finding of the first appellate court found  that  there was no, evidence on record to  show  that Bama Charan had put up the said building with his own  money or that he was the exclusive owner of the said two  storeyed building-  or  that  the  other  co-sharers  gave  up  their ownership  of the subjacent soil and rejected the  exclusive title  sought to be set up with regard thereto.  This  is  a conclusion of fact which does not require further  scrutiny. The High Court also agreed with the lower appellate court in rejecting   the  story  of  permissive  possession  of   the defendants  over the said building set up by the  plaintiffs and came to the conclu 13-918 Sup.  C.I./71 668 sion  that "at all material times the heirs in the  line  of Bama  Charan  including  the  appellants  were  in  separate possession of the eastern two-storeyed building." The  point for consideration before the High Court  was  and before us is, whether by such exclusive possession the heirs

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in the line of Bama Charan including the appellants acquired title by adverse possession to the eastern portion i.e. Bama charan  Babu’s  Bati.  With regard to  the  Baitakhana  Bati there is no dispute about its jointness.  No question can be raised  about  the ’first plaintiff’s having  become  a  co- sharer with the heirs in the line of Bama Charan.in the year 1941  by  private treaties and the auction purchase  of  the shares of three of his sons in execution of an award under a Co-operative  Societies  Act.   By  the  kobalas  the  first plaintiff acquired fractional interest in the shares of some of  the descendants of Bama Charan as also of  the  descend- ants of his brother Shyama Charan.  In the sale  certificate following  the  ;auction purchase there is  a  reference  to "Dalan 3 Privy 2" but there is no express reference to these in  the  koabalas (Ex. 6 series).  In the courts  below  the defendants-appellants   contended  that  the  eastern   two- storeyed  building  was  neither  intended  to  be  nor  was conveyed  under Ex.6 series kobalas and Ex. 9 a),  the  sale certificate.  Both the trial court and the first a ale court :held   that   the  kobalas  and   sale   certificate   were sufficiently  comprehensive  so  as to include  all  or  any structures which stood on the aforesaid plot of land at  the material time and that there was, nothing express or implied in the kobalas to show that the two-storeyed building on the eastern  side  was  intended  to  be  excluded  from   their operation.   The  High Court also found that so far  as  the sale  certificate  was  concerned the  first  plaintiff  had acquired the interest of three sons of Baba Charan. The  point as to adverse possession canvassed by the  appel- lants  arises in the following manner.  Their contention  is that  although  the sale certificate was  obtained  in  1941 inasmuch  as  the suit for partition was filed in  1955  the requisite  period  of  12  years  under  Art.  144  of   the Limitation  Act  of  1908  had  elapsed  in  the   meanwhile resulting  in  the perfection of their  title  by  exclusive separate   possession   of  the  property.   To   this   the plaintiffs’ rejoinder was that the two-storeyed building  in the eastern wing had indisputably been in the occupation  of the military authorities by requisition under the Defence of India  Act and the Rules, 1939 for four years from  1942  to 1946.   It  was argued that there was thus a  break  in  the claim   to  the  prescriptive  title  set  up  and   adverse possession,  if any, was limited to the period between  1946 and  1955.  This was sought to be repelled by the plea  that the  military  authorities  had  taken  possession  of   the property  from the defendants and had restored possession  W them in 1946 and                             669 that  their possession was really under or on behalf of  the defendants  without  causing a break in  the  continuity  of their possession.  An attempt was made to substantiate  this by  reference  to several documents which form part  of  the record.   The order of requisition dated May 28,  1942  made under rule 75-A of the Defence of India Rules issued by  the Collector  of  the District of 24 Parganas’ shows  that  the building  together  with fixtures, fittings etc. was  to  be placed  at the disposal and under the control  of  Brigadier Commander  36  Indian Infantry Brigade, Barrackpore  on  and from 8-2-1942 until six months after the termination of  the war  unless relinquished earlier.  A copy of the notice  was served on Prakash Chandra Mukherjee of Barasat described  as "the owner/occupier" of the said property.’ The notice of an award under s. 19 of the Defence of India Act 1939 addressed to  Prokash  Chandra Mukherjee, another descendant  of  Bama Charan shows that compensation had been adjudged and awarded

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in respect of the property at Rs. 125.  A third notice dated June  24,  1946  sent  out  from  the  office  of  the  Land Acquisition  Collector addressed to Pankaj  Kumar  Mukherjee and  others shows that possession of Cadastral  survey  plot No. 444 Mouza Barasat requisitioned under rule 75-A would be restored to, the addressee on July 2, 1946.  Ex.  D, a  memo forwarding  a cheque for Rs. 2,100 was addressed to  Prokash Chandra  Mukherjee. and others by way of rent  for  terminal compensation  in  respect  of the premises  which  had  been requisitioned. In our view possession by Government or the military  autho- rities of immovable property under rule 75-A of the  Defence of India Rules 1939 cannot be said to be in the character of an  agent  or by virtue of any implied permission  from  the true owner or occupier.  S. 2 of the Act of 1939 under which rules  were made and in particular cl. (xxiv) of sub-s.  (2) of that section empowered the authorities mentioned to  make orders  providing  for the requisitioning of  any  property, movable  or  immovable,  including  the  taking   possession thereof ’and the issue of any orders in respect thereof.  S. 19  (1) of the Act only enjoined upon the Government to  pay compensation in every case of such requisition and under  s. 19-B(1)  Government  was under an obligation,  whenever  any property  requisitioned  under any rule was to  be  released therefrom,  to make such enquiry, if any, as was  considered necessary and specify by order in writing the person to whom possession  was  to be given.  Sub-s. (2)  of  this  section clearly shows that delivery of possession of the property to the  person  specified in an order under sub-s. (1)  was  to operate  as  full  discharge  to  the  Government  from  all liabilities  in  respect  of the property, but  was  not  to prejudice  any  rights in respect thereof  which  any  other person  might be entitled by due process of law  to  enforce against the person to whom possession of the pro- 670 perty  was given.  Rule 75-A enabled the Central  Government of  the Provincial Government to requisition  any  property, movable.   or  immovable,  subject  to  certain   exceptions mentioned therein. The  net result of the Act and the Rules and the  effect  of orders  of requisition and relinquishment of possession  and or  payment’  of  Compensation  must be  taken  to  be  that possession  was taken by virtue of the powers under the  Act and  the rules irrespective of any consideration as  to  the rights  of  the true, owner or the occupier who  could  only make a claim to compensation.  It is further clear that even if possession was taken from A but was made over to B  after relinquishment,  A  could have no cause  of  action  against Government  if relinquishment was in terms of cl. (2) of  S. 19-B(1).   In  other  words  possession-of  Government   was neither by permission nor in the character of, an agent.  If possession  under  the  requisition had been  taken  from  a trespasser  but had been restored to the lawful owner  after the  end of the period of requisition, the trespasser  could not contend that he was wrongfully deprived of possession or that the, period of Government’s occupation should be  added to  the  period of his preceding trespass to enable  him  to claim a prescriptive right by adverse possession. The  High Court relied on the decision of the Judicial  Com- mittee  of  the Privy Council in Karan Singh  v.  Bakar  Ali Khan(1)  in coming to the conclusion that  such  requisition put  an  end to the claim for adverse  possession,  if  any, which  might  have  started  from  an  anterior  date.   The Judicial  Committee held that possession of  the  defendants since  1863 when the Collector had  relinquished  possession

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was not, 12 years’ possession but it was contended on behalf of  the  defendant that he was justified in tacking  to  his possession  the possession of the Collector from 1861.   The Board  found that pending a dispute between the parties  the Collector,  in  order to secure the Government  revenue  had attached  and taken possession of the property and  retained possession  of  it  from 1861 until  October  1863  when  in consequence  of the decree of the civil court  he  delivered possession to the defendant and paid over to him the surplus profits of the estate after deducting the Government revenue and expenses.  As the suit was brought in the year 1874  the period  of 12 years had to commence some time in 1862.   The Board  observed that it must be assumed that "the  Collector properly  took possession for the purpose of protecting  the Government revenue.  It was the duty of the Collector whi1st in  possession  under the attachment, to collect  the  rents from  the ryots, and having paid the Government revenue  and the  expenses of collection to pay over the surplus  to  the real owner.  If the defendant was the real owner the surplus belonged (1) 9 I.A. 99. 671 to  him;  but if, on the other hand, the  infants  were  the right  owners,  then  the surplus  belonged  to  them.   The Collector, by paying over the money to Karan Singh, did  not give Karan Singh a title." Accordingly it was held that  the suit was not barred by limitation. Mr.  Gupte on behalf of the appellants relied on  Halsbury’s Laws  of England (Third Edition, Vol. 24) Art. 484 at  P.253 in  support of his contention that the exclusive  possession of  s  client  was not disturbed by  the  requisition.   The article relied on reads               "The  mere fact that land is taken  under  the               Lands Clauses Consolidation Act, 1845, for the               purposes  of a public undertaking, and is  not               superfluous  land, does not prevent a  person,               who has exclusive possession of such land  for               the  statutory  period, from  acquiring  title               under the statute;" The decision relied on by Mr. Gupte is that of Bobett v. The South Eastern Railway Co. (1). In  our  view neither the above passage  nor  this  judgment helps  the appellants in any way.  One of the points  raised in Bobett’s case was, whether the plaintiff in an action  of trespass and to recover possession of land could be  allowed to  set  up  a plea that inasmuch as he had  been  let  into possession  by  the  defendants  or  that  he  had  been  in possession  to the exclusion of the defendants  without  any tenancy  at all during the time required by the  Statute  of Limitation  for the acquisition of a prescriptive title,  he was  absolutely  entitled  to the land when  ousted  by  the defendants.  It was argued on behalf of the defendants  that even if the plaintiff was a tenant at will for the requisite period  and in exclusive possession of the land the  Statute of  Limitation  did not apply to the case, for the  land  in question was inalienable by the company under s. 127 of  the Lands Clauses Act and therefore could, by the mere aches  of its  officers have vested in the plaintiff contrary  to  the intention of the Legislature which only allowed the  company to  take  possession  of the land for the  purposes  of  the undertaking  and subject to the provisions of its  Acts  and not give it up to others.  There on a consideration of s.  7 of  3  and  4 wm. 4, c. 27 and  other  statutory  provisions Denman, J. arrived at the conclusion:               ".....that the mere fact that the property  in

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             question  was land taken for the  purposes  of               the  undertaking  and  not  superfluous  land,               would  not  prevent the plaintiff  if  he  had               exclusive possession since 1863, either as a (1)  [1882] 9 Q.B. 424. 672               wrongdoer  or as tenant at will in  the  first               instance  from being entitled to the  land  by               virtue of the Statute of Limitations." Put  simply  the  dictum  only meant  that  the  Statute  of Limitation would be applicable to possession of a trespasser notwithstanding  the  provisions of the Lands  Clauses  Act, 1845. The  question  before  us  is  altogether  of  a   different character.    If   the  defendants-appellants   could   have established  that an order under r. 75-A of the  Defence  of India Rules merely enabled the military authorities to  take possession of the land for the period of their need by their permission  or in the character of agents, they  would  have probably  been on firm ground.  But, as already observed  by us, the nature of the order of requisition under r. 75-A  is altogether  different and such possession cannot  enure  for the  benefit of the person who was in possession before  for the purpose of acquisition of a prescriptive, title. The only other decision to which our attention was drawn  is that  of Dagdu v. Kalu(1).  In this case it was  found  that the  plaintiff had been admittedly out of possession of  the lands  since  1881  and the defendant had  been  in  adverse possession  of  them from that time until the date  of  suit October  2,  1895, with the exception of a period  of  three years  during which period he had been dispossessed  by  one Barsu  who  wrongly  alleged  that he was  a  donee  of  the plaintiffs.    On   that  allegation  the   donee   obtained possession  of  the land under the decree of  the  court  of first instance but it was reversed by the High Court and the land  was  as  a  reversal restored  by  the  court  to  the defendant  on 9th April 1895.  It was observed by  the  High Court that (p. 736) :               "The  erroneous action of the Court  of  first               instance  cannot,  we  think,  prejudice   the               defendant, or put him in a worse position that               he  would  have occupied,  had  the  erroneous               decree not been made." This  decision  too,  in  our opinion,  does  not  help  the appellants.  The possession of the defendants was  disturbed by a wrong order of the court which was ultimately put right and the court no doubt acted on the maxim that a litigant is not to be prejudiced by any wrong order of the court. A faint attempt was made to re-agitate the question that the auction  sale of 1941 did not include the  eastern  portion. This in our opinion is concluded by the finding of the  High Court already noted. (1)  22 Bombay 733. 673 The last, point put forward was that the plaintiffs had  not asked for possession in their plaint.  This can be  rejected summarily.  The prayers in the plaint not only include  one, for preliminary decree for partition but for the appointment of a commissioner for effecting partition of the property by separating  the shares of the plaintiffs from those  of  the defendants  in  the suit property.  Clearly  the  plaintiffs were asking for demarcation of’ the portion of the  property which  should  be  theirs  as a  result  of  the  partition. Imbedded in this prayer is a claim for possession. In the result the appeal fails and is dismissed with costs.

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V.P.S.                                    Appeal dismissed. 674