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PETITIONER: RAI SAHIB DR.  GURDITTAMAL KAPUR

       Vs.

RESPONDENT: MAHANT AMAR DAS CHELA MAHANT RAM SARAN AND ORS.

DATE OF JUDGMENT: 19/03/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. WANCHOO, K.N. SIKRI, S.M.

CITATION:  1965 AIR 1966            1965 SCR  (3) 433

ACT: Adverse  possession-Doubtful whether Akhara, or  its  Mahant was occupancy tenant-Forfeiture of tenancy-Right of Mahant’s successor to sue for possession.

HEADNOTE: The appellant was the owner of the suit land.  Alleging that the 2nd respondent, who was the Mahant of an Akhara, was the occupancy  tenant and that he had allowed his lessee to  dig it  up and rendered it unfit for cultivation, the  appellant evicted the 2nd respondent from a part of the land in  1940, and  from  the  rest  of  it in  1943.   In  1950,  the  2nd respondent  was  removed  from  the  office  of  Mahant,  in proceedings  under  s.  92, C.P.C., and  in  1953,  the  1st respondent  was  appointed in his place.  In  1957  the  1st respondent filed a suit for possession of the land, alleging that the Akhara itself was the occupancy tenant.  The  trial court  decreed  the suit and the High  court  confirmed  the decree. In  the appeal to this Court, the appellant  contended  that the suit was barred by limitation. HELD:     Upon  the  eviction  of  the  2nd  respondent  the occupancy right in the land merged in the right of ownership of  the  appellant.   Apart from  it,  the  actual  physical possession  of  the land having been continuously  with  the appellant to the exclusion of the occupancy tenant,  whether it was the 1st respondent or the Akhara itself, for a period of  more than 12 years before the institution of  the  suit, the occupancy right was extinguished.  If the 2nd respondent represented  the  Akhara  in  the  eviction  proceeding  the decrees  therein  would  bind  the  1st  respondent  as  his successor.   If  the 2nd respondent did  not  represent  the Akhara, the possession of the appellant under those  decrees would  be adverse to the Akhara.  The 2nd respondent as  the Mahant, or the Receiver appointed by the Court In the s.  92 proceedings,  could  have  filed a suit  on  behalf  of  the Akhara, and so, the 1st respondent’s suit after 12 years  of adverse  possession  by the appellant was  barred.  (436D-E; 438F-H] Sudaram Das v. Ram Kirpal, L.R. 77 T.A. 42 and Subbaiya V. Mustapha, L.R. 50 I.A. 295, applied

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Dwijendra  Narain Roy v. Joges Chandra De, A.I.R. 1924  Cal. 600, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 471 of 1963. Appeal  by special leave from the judgment and decree  dated November  9-  1960  of the Punjab High.   Court  in  Regular Second Appeal No. 1627 of 1960. 434 S.   V. Gupte, Solicitor General, B. K. Khanna, R. K.  Garg, D.   P.  Singh, S. C. Agarwal and M.K. Ramamurthi,  for  the appellant. N.C. Chatterjee and M.S. Gupta, for respondent No. 1. P.K. Chatterjee and R.H. Dhebar, for respondent No. 11. The Judgment of the Court was delivered by Mudholkar,  J. The short point which falls to be  considered in this appeal by special leave from a judgment of the  High Court of Punjab dismissing the appellant’s appeal in  limine is  whether  the  suit  for  possession  instituted  by  the plaintiff-respondent  No. 1 is within time.  There  are  ten respondents  to  the  appeal  out  of  whom  only  two,  the plaintiff-respondent  No.  1 Amardas and respondent  No.  11 Union  of  India  are  represented.   While  the  appeal  is contested  by  the first respondent it is supported  by  the Union of India.  The facts which are not disputed before  us are briefly these: The  appellant  has a share of 1221/143 1/2 in the  land  in suit.  The occupancy tenant of this land is Akhara Nirbansar of  Sultanwind  Gate, Amritsar.  The second  respondent  Ram Saran Das was Mahant of this Akhara till the year 1950  when he  was removed by virtue of an order made by a civil  court in  a  suit  under s. 92 of the  Code  of  Civil  Procedure, confirmed in appeal on September 11, 1950.  On December  29, 1953  respondent No. 1 was appointed as Mahant in  place  of respondent No. 2. On  September 15, 1939 the appellant instituted a suit in  a revenue court under ss. 38 and 39 of the Punjab Tenancy  Act (hereafter  referred  to as the Act) for possession  of  141 kanals 8 marlas of land on the ground that he had granted  a sub-lease  thereof for the manufacture of bricks to  someone by  utilising earth dug up from that land.  This,  according to the appellant, was in contravention of the provisions  of s. 39 of the Act and entitled him to eject respondent No. 2. The  Revenue Court held that out of the land  sub-leased  by respondent  No. 2 only a certain portion was dug up  by  the sub-lessee  and,  therefore,  the ejectment  of  the  second respondent was confined to that area of land which had  been dug up.  The date of the ejectment decree was June 3,  1940. The  second  respondent  preferred  an  appeal  before   the Collector  from that decree which was dismissed  on  October 19,   1940.   Shortly  thereafter  the  appellant   obtained possession of the land from which the second respondent  was ordered to be ejected.  The lessee of the second respondent, however,  continued  to  dig up the rest of  the  land  and, therefore,  the appellant instituted a second suit  for  the ejectment of the second respondent therefrom.  The Assistant Collector  who  tried  the  suit granted  a  decree  to  the appellant in respect of the entire land which was left  with the second respondent after he was dispossessed from a  part of  the  land leased to him under the  earlier  decree.   In appeal, however, the Collector modified the order of                             435

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ejectment  by  leaving  out of the land  29  kanals  and  14 marlas.   This  order  was made on May  31,  1943.   Shortly thereafter  the  appellant obtained possession of  the  land with respect to which the Collector had confirmed the  order of ejectment in the appeal. On  March, 18, 1957 the first respondent instituted  a  suit against the appellant and the second respondent.   According to  respondent No. 1 Akhara Nirbansar was not bound  by  the actions  of  Mahant Ram Saran Das,  the  second  respondent, which  were  tantamount  to alienation of  the  land  which, according  to him, were neither for legal necessity nor  for the  benefit  of  the  estate.  He  contended  that  on  the contrary the action of Ram Saran Das in alienating the  land was unauthorised and illegal and because what he did was not for  legal necessity nor for conferring any benefit  on  the estate. The  appellant contested the suit on two main grounds.   The first  was that the land in question was never  attached  to the  Akhara  but  that  Mahant Ram  Saran  Das,  the  second respondent,  was its occupancy tenant and that as  the  sub- lessee  of the land had dug it up and rendered it unfit  for cultivation  the  appellant  as the owner of  the  land  was entitled to eject respondent No. 2 by forfeiting the  lease. He denied that the land was wakf property and contended that the  occupancy  rights  existing in  favour  of  the  second respondent  were extinguished by the orders of  the  revenue courts which still hold good.  The second point was that  as the  appellant was in continuous possession of the  land  in suit  as  owner  in his own right for  more  than  12  years preceding the suit openly and to the exclusion of the second respondent and respondent No. 1 the suit was barred by time. In  his  replication respondent No. 1  reiterated  that  the property  in  suit  belongs to and is owned  by  the  Akhara Nirbansar  as  its  occupancy tenant  and  that  the  second respondent  was  never  its  Occupancy  tenant.   Therefore, according to him, there was no question of extinguishment of occupancy  rights in consequence of the two decrees made  by the  revenue  courts.  He contended that the action  of  the second  respondent  in leasing out the land for  digging  up earth  was a transfer which, not being for  legal  necessity nor  for  the  benefit  of  the  estate,  was  unauthorised. According  to  him the mere fact that the appellant  was  in possession  of  the  land for more than 12  years  makes  no difference  to  the  suit  and that  the  land  being  trust property a suit for its recovery could be brought within  12 years  from the date of "death, resignation or  removal"  of the manager of such a property.  He added that there was  no question  of  the appellant being in possession in  his  own right  of  the land for more than 12 years.   The  suit  was decreed  by the trial court and its decision was  unheld  in appeal  by the second Additional District  Judge,  Amritsar. The appellant’s second appeal was dismissed in limine by the High Court. 436 Upon the view which we take on the question of limitation it has become unnecessary to decide the other points. The learned Selicitor General who appears for the  appellant relies  strongly upon the averments of the appellant in  his written statement that he is occupying the land in suit  for a  period of over 12 years from the date of the  institution of  the  suit  as  owner in his own  right  and  not  as  an occupancy tenant and that even if his occupation is regarded to  be that of an occupancy tenant as alleged by  the  first respondent,  he has acquired the proprietary rights in  this property  by  operation of statute.  The  Solicitor  General

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relies  on  the  further averments to the  effect  that  the original  occupancy  tenant  of  the  land  was  the  second respondent  and  not  the Akhara  and  also  contended  that whether  it was one or the other made no  difference.   For, the  tenant’s  occupancy  rights were  extinguished  by  the decrees passed in the ejectment suits and consequently there was no cause of action for the present suit.  As pointed out by  the learned Solicitor General, respondent No. 1  in  his replication has not disputed the fact that the appellant was in possession for more than 12 years before the  institution of the suit and that the only way in which he tried to  meet it  was by saying that this fact made no difference  to  his case. It  seems to us clear that upon the eviction  of  respondent No. 2 from a part of the land in the year 1940 and the  rest of  it in the year 1943 the occupancy right with respect  to the land merged in the right of ownership of the  appellant. Apart  from  that  it  is clear  that  the  actual  physical possession  of  the land having been continuously  with  the appellant to the exclusion of the occupancy tenant,  whether it  was respondent No. 1 or the Akhara itself. for a  period more  than 12 years before the institution of the suit  that right was extinguished. Mr.  Gupta, learned counsel for respondent No.  1,  however, sought  to  meet  this position by urging  that  the  second respondent’s act amounted to an alienation, that it was  not established  that  it  was for  legal  necessity  and  that, therefore,  respondent No. 1 as the successor of  respondent No.  2  to  the office of Mahantship  of  the  Akhara  could institute  a suit within 12 years of his succession  to  the office.   This succession to his office must,  according  to him,  be deemed to have occurred when upon the dismissal  in the  year 1950 of the appeal preferred by respondent  No.  2 against  the decision of the trial court removing  him  from Mahantship;  later  the  respondent No. 1  was  appointed  a Mahant.   That  was on December 12, 1953.  The  suit  having been  filed  within  12 years of that  date,  so  Mr.  Gupta contends, must be held to be within time.  The simple answer to  this contention is that what happened in this  case  was the forfeiture of the occupancy tenancy by the appellant  as landlord.   In  no sense can this be regarded  as,  or  even likened  to  alienation,  which is a voluntary  act  of  the alienor in favour of the alienee.  The appellant is thus not an alienee from the respondent No. 2 Ram Saran Das.                             437 Mr. N. C. Chatterjee who also appeared for the first respon- dent  raised a novel contention.  According to him,  adverse possession against the Akhara, which was the real  occupancy tenant,  could  not  commence  till  respondent  No.  1  was appointed as Mahant because during the interval there was no person  who was competent to institute a suit on  behalf  of the  Akhara  for the possession of the lands  of  which  the appellant  was  in adverse possession.  In  support  of  the contention  he  has  placed reliance upon  the  decision  in Dwijendra Narain Roy v. Joges Chandra De(1).  In  particular learned  counsel has relied upon the following  observations of  Mookerjee J., who delivered the judgment of  the  Court. They are:               "The substance of the matter is that time runs               when the cause of action accrues, and a  cause               of action accrues, when there is in  existence               a  person who can sue and another who  can  be               sued......... The cause of action arises  when               and  only  when the aggrieved  party  has  the               right  to  apply to the proper  tribunals  for

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             relief.  The statute (of limitation) does  not               attach to a claim for which there is as yet no               right  of  action and does not run  against  a               right  for  which there  is  no  corresponding               remedy   or  for  which  judgment  cannot   be               obtained.   Consequently  the  true  test   to               determine  when a cause of action has  accrued               is to ascertain the time when plaintiff  could               first   have  maintained  his  action   to   a               successful result." (P. 609).               He  further brought to our notice  that  these               observations  have  received the  approval  of               this  Court in F. Lakshmi Reddy v. L.  Lakshmi               Reddy(2),  at p. 206.  In the case which  came               up  before this Court the facts which are  set               out in the head note were as follows:               "V  died an infant in 1927 and H,  an  agnatic               relation filed a suit for the recovery of  the               properties  belonging to V which were  in  the               possession  of  third parties, on  the  ground               that  he  was the sole  nearest  male  magnate               entitled  to all the properties.   During  the               pendency of the suit a Receiver was  appointed               for  the  properties in February,  1928.   The               suit having been decreed H obtained possession               of the properties from the Receiver on January               20,  1930,  and after his death in  1936,  his               nephew, the appellant, got into possession  as               H’s heir.  On October 23, 1941 the  respondent               brought the present suit for the recovery of a               onethird  share  of the  properties  from  the               appellant  on  the  footing that  he  and  his               brother  were  agnatic relations of V  of  the               same  degree  as H, that all  the  three  were               equal  co-heirs of V and that H  obtained  the               decree  and got into possession on  behalf  of               all the co-heirs.  The appellant resisted  the               suit  and contended that the  respondent  lost               his  right by the adverse possession of H  and               his  successor and that for this  purpose  not               only the period from               (1) A.I.R. 1924 Cal. 600.               (2) [1957] S.C.R. 195.               438               January 20, 1930 to October 23, 1941 was to be               counted  but  also the prior period  when  the               Receiver  was in possession of the  properties               during the pendency of H’s suit.  It was found               that the respondent’s case that H obtained the               decree and got possession from the Receiver on               behalf of the other co-heirs was not true." The  facts of that case were different and it was  on  these facts that this Court held that the respondent did not  lose his  right by adverse possession.  It is in the  context  of these facts that the learned Judges cited with approval  the observations  of  Mookerjee  J.,  which  we  have  set  out. Assuming these observations are sound, it cannot be said  in the  case before us that at any point of time there  was  no person  who was competent to institute a suit on  behalf  of the Akhara.  Respondent No. 2 was still the Mahant and could well  have instituted a suit on behalf of the Akhara  if  in fact  there  was  any  cause of  action  for  such  a  suit. Further, in the course of the suit the possession was with a Receiver  who had been appointed by the court and  was  thus competent in law to institute a suit.

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We  may point out that a Mahant of an Akhara represents  the Akhara  and  has both the right to institute a suit  on  its behalf  as also the duty to defend one brought  against  it. The  law on the subject has been stated very clearly at  pp. 274  and  275  in Mukherjea’s Hindu  Law  of  Religious  and Charitable  Trust, 2nd, ed.  It is pointed out that  in  the case of an execution sale of debutter property it is not the date  of death of the incumbent of the Mutt but the date  of effective possession as a result of the sale from which  the commencement  of the adverse possession of the purchaser  is to  be  computed  for  the  purposes  of  art.  144  of  the Limitation Act.  This is in fact what the Privy Council  has laid down in Sudarsan Das v. Ram Kirpal (1).  A similar view has  been  taken  by  the  Privy  Council  in  Subbaiya   v. Mustapha(2).   What  has been said in this case  would  also apply to a case such as the present.  Thus if respondent No. 2  could be said to have represented the Akhara in  the  two earlier   suits,  decrees  made  in  them  would  bind   the respondent No. 1 as he is successor in office of  respondent No.  2.  On  the  other hand if respondent  No.  2  did  not represent the Akhara, the possession of the appellant  under the decree passed in these suits would clearly be adverse to the  Akhara upon the view taken in the two decisions of  the Privy Council just referred to.  The first respondent’s suit having  been  instituted after the appellant  has  completed more than 12 years of adverse possession must, therefore  be held  to be barred by time.  For these  reasons  disagreeing with the courts below we set aside the decrees of the courts below and instead dismiss the suit of respondent No. 1  with costs in all the courts. Appeal allowed. (1) L.  R. 77 I.A. 42. (2)  L.R. 50 I.A. 295. 439