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PETITIONER: SOMNATH BARMAN

       Vs.

RESPONDENT: DR.  S. P. RAJU & ANR.

DATE OF JUDGMENT: 16/10/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C.

CITATION:  1970 AIR  846            1970 SCR  (2) 869  1969 SCC  (3) 129

ACT: Specific Relief Act (1 of 1877), s. 9- suit for  possession, filed  more  than 6 months  after  dispossession-Plaintiff’s possession  proved but not title-Whether plaintiff  entitled to decree for possession.

HEADNOTE: In  a  suit for possession of immovable  property  filed  in 1949,  it was found that the plaintiff had  not  established his title to the property, but it was proved that he was  in possession  from  1930  to  1945  and  that  the   defendant trespassed on the property in 1946. On  the  question  whether  a  decree  could  be  passed  in plaintiffs favour, HELD : Possessory title is a good title as against everybody other  than  the lawful owner.  Therefore, in an  action  of ejectment  against  a wrong doer, Prior  possession  of  the plaintiff  is  sufficient  title even if the  suit  was  not brought within 6 months of dispossession as required by’s. 9 of   the   Specific  Relief  Act,   1877.    The   wrongdoer (trespasser) cannot successfully resist the suit by  showing that  the  title  and right to possession  are  in  a  third person. [874 B-D] Ismail Ariff v. Mohamed Ghouse, I.L.R, 20 I.A. 99, applied. Narayana Row v. Dharmachar, I.L.R. XXVI Mad.  514,krishnarav Yashwant and Ors. v. Vasudev Apaji Ghotikar (deceased) by  I rs.  I.L.R. 8 Bom. 371, Singh v. Ramji Das & Ors, I.L.R.  36 All.  51,  Wali Ahmad Khan & Ors. v. Ajudhia  Kandli  I.L.R. XIII  All. 537, and Subodh Gopal Bose v. Province  of  Bihar and Ors, A.I.R. 1950 Pat. 222, approved. Debi Churn Boldo v. Issur Chunder Manjee, I.L.R. TX Cal.  39 Ertaza  Hossein & Anr. v. Bany Mistry I.L.R. IX  Cal.  130, Purmeshur Chowdhry & Ors. v. Brijo Lal Chowdhry, I.L.R. XVII Cal.  256  and  Nisa, Chand Gaita  and  Ors..  v.  Kanchiram Baqani, I.L.R. XXVI Cal. 579, overruled.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2342  of 1966.

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Appeal  front the judgment and decree dated October 8,  1963 of the Andhra Pradesh High Court in C.C.C. Appeal No. 47  of 1959. H.   R. Gokhale, K. R. Chaudhitri and G. Kaushalya, for  the appellant. M.   C.  Citagla,  R. V. Pillai and  Subodh  Markandya,  for respondent No. 1. M.   C.  Bhandare and K. Rajendra Chaudhuri, for  respondent No. 2. 870 The Judgment of die Court was delivered by Hegde, J. This appeal has been brought by the 1st  defendant in  O.S. No. 210 of 1,958 on the file of the 1st  Additional Judge, City Civil Court, Hyderabad.  That was a suit brought by  the 1st respondent-plaintiff for possession of the  suit property.  That suit was dismissed by the trial court but in appeal the High Court of Andhra Pradesh reversed the  decree of  the  trial court and decreed the  plaintiff’s  suit  for possession.   Thereupon this appeal has been  brought  after obtaining  a certificate under Art. 1 3 3 ( 1 ) (a)  of  the Constitution. The  subject  matter  of  the suit is a  piece  of  land  in Himayatnagar measuring 2856 sq. yards.  The plaintiffs  case is  that he purchased this land from one Jamsheer Khan  with other  plots  in the vicinity under two  sale  deeds  marked Exhs.   P-2 and P-3; thereafter he was in possession of  the same.   When  he  was in possession,  the  second  defendant trespassed into the said property and took possession of the same,  thereafter  he  illegally sold the same  to  the  1st defendant.   The defendants denied the  plaint  allegations. They  denied  that the plaintiff had any title to  the  suit property  or  that he was in possession of the same  at  any time.   On  the  other hand they  pleaded  that  the  second defendant  who had acquired title to the suit  property  by adverse possession had sold the same to the 1st defendant in the year 1946. The  trial court came to the conclusion that  the  plaintiff has not established his title to the suit property.  It also held  that the plaintiff has not satisfactorily proved  that he  was in possession of the suit property at any time.   In view of those findings it thought that it was not  necessary to  go into the defendants’ plea of adverse possession.   In the result it dismissed the plaintiff’s suit.  In appeal the High  Court agreed with the trial court that  the  plaintiff has not proved his title to the suit properly.  It  rejected the  plea of the defendants that they have  perfected  their title  to  the  suit property by  adverse  possession.   But differing  from  the trial court it came to  the  conclusion that  the  plaintiff  was put into possession  of  the  suit property by his vendor Jamsheer Khan Sahab in about the year 1930  and  he was in possession of the same till  about  the year 1945, when the second defendant trespassed on the  same and took possession of it. In view of the concurrent finding reached by the trial court and  the  High Court that the plaintiff has not  proved  his title,  that question was not reopened in this  Court.   The finding  of  the  High Court that the  defendants  have  not established  their pleas of title by adverse possession  was challenged  though feebly.  It was contended before us  that the plaintiff who based his suit on 871 title  and prior possession having failed to  establish  his title,  his  suit has to fail.  Further the finding  of  the High Court that the plaintiff was in possession of the  said property between 1930 to J945 was also assailed before us.

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The appellant claims that he came into the possession of the suit  property on the strength of the sale deed executed  by the  second defendant in his favour on 1-10-1946   The  suit from  Which this appeal arises was initially  instituted  on the original side of the High Court of Hyderabad in the year 1949.  Therefore to establish his claim of title by  adverse possession,  the 1st defendant must primarily depend on  the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold  the same to him.  Though the second defendant filed a -written statement.  supporting  the case of the  1st  defendant  and though  he  was  present  at the  time  of  hearing  several occasions, he was not examined as a witness in this case  to support  the plea of adverse possession put forward  by  the defendants.   No  explanation is forthcoming  for  his  non- examination. This circumstance goes a long way to  discredit the  defendant’s  plea  of  adverse  possession.   The   1st defendant’s  evidence  as regards adverse possession  is  of very  little  significance  as his  knowledge  of  the  suit property  prior  to the date he purchased the same  is  very little.  The only other evidence relied on in support of the plea of adverse possession is that of D.W.2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant.  The lease deed said to have been executed by  him is marked as Exh.D/ 1. It is not explained  how  the 1st  defendant came into possession of Exh.D/l.  Though  the suit  was  filed as far back as 1949, Exh.D/1  was  produced into  court  for  the  first time  in  the  year  1960.   No explanation  has  been given for this  inordinate  delay  in producing  Exh.D/1,  (an unregistered  document)  in  court. According to D.W.2, the 1st defendant knew about this  docu- ment  as far back as 1950.  Under these  circumstances,  the High Court was fully justified in rejecting the testimony of D.W.2 and not relying on Exh.D/l. The other evidence adduced by  the  1st  defendant  relating to  the  plea  of  adverse possession was not commended for our acceptance.   Therefore we need not consider the same.  Hence we agree with the High Court  that  the defendants have failed to  establish  their plea of adverse possession. Now  coming  to  the evidence  relating  to  the  plaintiffs possession of the suit property from the year 1930 to  1945, we  have firstly the oral testimony of the  plaintiff.   The High Court has accepted the plaintiff’s evidence as  credit- worthy.   The  plaintiff is a responsible person.   He  held important offices both under the 872 State Government as well as under the United Nations.  Prima facie  his evidence is worthy of acceptance.  This would  be particularly so in view of the non-examination of the second defendant.  The question before the trial court and the High Court  was  whether the plaintiff was in possession  of  the suit  property  between 1930 to 1945 or whether  the  second defendant was in possession of the same during that period ? On  this  aspect,  the evidence is really  one  sided.   The evidence  of the plaintiff that he came into  possession  of the suit property under Exhs.P-2 and P-3 is supported by the recitals  in those documents.  In considering  the  question whether  Jamsheer Khan, the vendor under Exhs.P-2  and  P-3, had put the plaintiff- into possession of the suit property, the fact that Jamsheer Khan had no title to the same is  not very  material.   There  is  no reason  to  think  that  the recitals contained in Exhs.  P-2 and P-3 as to the  delivery of  possession  are false recitals.   There  is  documentary evidence  to show that the plaintiff paid the "Nazul" for  ’ the  properties  purchased by him under Exhs.  P-2  and  P-3

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after his purchase.  It is true that those documents do  not show  how  much  ’Nazul’ was paid in  respect  of  the  suit property but the second defendant has produced no  documents to show that he had paid any ’Nazul’ in respect of the  suit property.   Ex.   P-4  is a stamped  revenue  receipt  on  a printed  form  executed in favour of the  plaintiff  by  the Maqtadar  on  August  16, 1939 for Rs.  331/14/4  pies.   It relates  to  the lands which belonged to Jamsheer  Khan  and situate  at Narayanguda.  Evidently that recital  refers  to the lands covered by Exts.  P-2 and P-3.  It recites that  a sum  of Rs. 331/14/4 Ps. was received from the plaintiff  as ’Nazul’ for the period from 15th Aban 1338 Fasli to the  end of  the  Aban 1346 Fasli at the rate of Rs. 41/4/5  Ps.  per year.   The sale under Exhs.  P-2 and P-3 was made in  1930. Evidently the ’Nazul’ in respect of those properties was  in arrears till 1939.  The ’Nazul’ due under Exhs.  P-2 and P-3 comes to Rs. 41/- and odd per year as seen from Exh.  P-6. Ex.  P-5  is  a  letter dated  11-12-1937  received  by  the plaintiff  from Mr. J. D. M. Dean (P.W.2), First  Divisional Engineer, Hyderabad City.  It relates to the construction of a  road  from Musheerabad to Bashir Bagh.   It  states  that under  the  Ferman dated 29th Shaban 56  Hijri,  H.E.H.  The Nizam  was pleased to accord sanction to the acquisition  of 20  per cent of the land without any, compensation  for  the construction  of road, from the owners of the land and  that for  the  excess land required, compensation will  be  paid. That  letter further mentions that total area of the  I  and belonging  to the plaintiff was 7,815 sq. yds. out of  which 2,112  sq.  yds. were required for the construction  of  the road.   Out of that 1,563 sq. yds. being the 20 per cent  of the 873 entire area was to be taken without any compensation and the value  of  the remaining 549 sq.  Yds. will be paid  to  the plaintiff.That  letter further informed the  plaintiff  that the  value  of the additional area which  might  finally  be determined  after  the  marking- may be  obtained  from  the department.  It is established that road from Musheerabad to Bashir Bagh was laid not only across the plot covered  under P.3  but  also across the site purchased under Ex.   P-2  in which the suit land is situate.  That was obvious because if the road did not touch any portion of Exh.  P-2, the  entire area of the land belonging to plaintiff would have been only 5,114  sq. yds. and not 7,815 sq. yds. as mentioned in  Exh. P-5.  It also establishes that the plaintiff was  recognised by  the  City Improvement Board as the  person  entitled  to compensation  in  respect of that  land.   Evidence  further discloses  that  the  plaintiff- was  paid  compensation  in respect of the land taken from him in excess of 20 per  cent referred to earlier.  The oral evidence. adduced in the case coupled   with  Exh.   P.2,  P.4  and   P.5   satisfactorily establishes the fact that the plaintiff was in possession of the suit property till about 1945. In  addition to the evidence referred to earlier,  the  High Court  has also relied on two other documents namely  Exts. D-8 and D-9, but those documents were produced as additional evidence in the High Court.  Their connection with the  suit property  is not satisfactorily established.   Therefore  we have  excluded them from consideration.  If we bear in  mind the  fact  that  the question for decision  is  whether  the plaintiff or the 2nd defendant was in possession of the suit property between the years 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiff’s case.  As seen earlier, the defendants have  not produced any reliable evidence to support their case.  Hence

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we agree with e High Court that the plaintiff has  succeeded in  establishing that he was in possession of the suit  pro- perty prior to 1945. 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 ,is well as its possession within  12  years. According  to the appellant, except in a suit under S. 9  of the  Specific Relief Act, the plaintiff, for  succeeding  in the  suit,  has to prove both existing title  to  tile  suit property and its possession within 12 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 874 other  than  the lawful owner. In Ismail’ Ariff  v.  Mohamed Ghouse(l),  the  Judicial Committee came to  the  conclusion that a person having possessory title can get a  declaration that he was the owner of the land in suit and an  injunction restraining   the  defendant  from  interfering   with   his possession.  Therein it was observed that the, possession of the  plaintiff was a sufficient evidence of title  as  owner against the defendant. In  Narayana  Row v. Dharmachar (2)  a bench of  the  Madras High  Court consisting of Bhashyam Ayyangar and  Moore,  JJ. held  that  possession is, under the Indian,  as  under  the English  law,  good title against all but  the  true  owner. Section  9  of  the  Specific  Relief  Act  is  in  no   way inconsistent with the position that as against a wrong doer- ,  prior  possession  of  the plaintiff,  in  an  action  of ejectment, is sufficient title, even if the suit be  brought more  than  six  months  after  the  act  of   dispossession complained  of and that the wrong-doer  cannot  successfully resist  the  suit  by showing that the title  and  right  to possession  are in a third person.  The same view was  taken by the Bombay High, Court in Krishnarav Yashvant and Ors. v. Vasudev  Apaji Ghotikat (deceased) by s.(3). That  was  also the view taken by the A Allahabad High Court-see Umrao Singh v.  Ramji  Das  and ors. (4); Wali Ahmad Khan  and  Ors.  v. Ahjudhia  Khandu(5).   In subodh Gopal Bose v.  Province  of Bihar  and Ors.(6) the Patna High Court adhered to the  view taken by the Madras, Bombay and Allahabad High Courts.   The contrary view taken by the Calcutta High Court in Debi Churn Boldo  v. Issur- Chunder Manjee(7), Ertaza Hossein and  Anr. v. Bany Mistry(8) Puremeshur Chowdhry and Ors. v. Brijo Lall Chowdhry(9)  and  Nisa  Chana Goita and  Ors.  v.  Kanchiram Bagani  (10),  in  our opinion does not  lay  down  the  law correctly. In  the result this appeal fails and the same  is  dismissed with  costs.   We  see no reason to  accept  any  additional evidence in trials Court.  Hence C.1\4.P. No. 3-588 of  1968 is dismissed but no costs. V. P. S.                 Appeal dismissed. (1)  I.L.R.201.A.99.     (2)  ILR XXVI Mad. 514 (3)  ILR 8, Bom. 371, (4)  ILR 36 All. 51. (5)  ILR XIII All 537. (6)  AIR 1950 Pat. 222. (7)  ILR IX Cal. 39. (8)  ILR IX Cal. 130. (9)  ILR XVII Cal. 256. (10) ILR XXVI Cal. 579.

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