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Sheshrao Parashram Vs. Yeshwant Ambusha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberAppeal No. 1 of 1964
Judge
Reported inAIR1969Bom429; (1969)71BOMLR727; 1969MhLJ356
ActsLimitation Act, 1908 - Schedule - Articles 142 and 144; Transfer of Property Act, 1882 - Sections 116
AppellantSheshrao Parashram
RespondentYeshwant Ambusha and ors.
Appellant AdvocateV.R. Padhye, Adv.
Respondent AdvocateC.P. Kalele and ;S.V. Natu, Advs.
Excerpt:
possession - suit for possession--suit on basis of possessory title--suit against dispossessing trespasser whether maintainable.;a suit for possession of immovable property on the basis of a possessory title by a person who was in peaceful possession of the property and who was dispossessed by a trespasser without any title is maintainable against the trespasser. ;lallu yeshwant v. rao jagdish [1968] mh.l.j. 496, s.c. and nair service society v. k.c. alexander [1968] a.i.r. s.c. 1165, referred to. - - 2 raised an additional plea that he was a transferee for value in good faith from an ostensible owner and he thus claimed protection under section 41 of the transfer of property act. 1, who had forcibly ousted him from possession and who had no better title to the field. in that appeal it..........no. 2 was in possession of the field, the plaintiff, who is one of the sons of ambusa, filed a suit for possession. his case was that contemporaneous with the sale-deed there was an agreement of reconveyance which was entered into by sadashioswami with the deceased gunusa and that gunusa had all along been trying to get a reconveyance in his favour. it was contended that the transaction was really a loan transaction. an effort was made to obtain a reconveyance by publishing a notice on 14-4-1941 in a local newspaper named uday, and accordingly he attended the office of the sub-registrar at amrawati on 30-4-1974 awaiting the real owner to come there in pursuance of the advertisement to execute the document of reconveyance. none, however, turned up/ however, according to the plaintiff,.....
Judgment:

Chandurkar, J.

1. The only question of law which arises in this Letters Patent appeal is whether a suit for possession on the basis of a possessory title by a person who was in the peaceful possession of the property and who was dispossessed by a trespasser without any title is maintainable against the trespasser.

2. Field survey number 9/1B area 3 Acres and 13 gunthas, of mouza Khanapur najik, Rahamapur in Amrawati district originally belonged to the Gunusa Anusa. He executed a sale-deed Ex. P-8 in respect of this field in favour of one Sadashioswami for an ostensible consideration of Rs. 177/-. On 1st May 1940 he executed of Sadashioswami ( Gunusa ?) which entitled him to cultivate the field on lease for the year 1940-41. Possession of the field thus continued to remain with Ganusa. It is not disputed that even after the expiry of this lease the field continued to remain in possession of Ganusa. Sadashioswami who was celibate Sanyasi died about 6 months after the date of the sale-deed and Gunusa also died in July 1942. After Gunusa the field came in possession of his son Ambusa, Ambusa died in March 1943. Ambusa had 5 sons. Plaintiff Yeshwant is one of them. The field, however, actually remained in the cultivation of Ambusa's another son Khushal, who is defendant No. 4. While Khushal was in possession of the field sometime in June 1948 he was dispossessed by defendant No. 1 Vishwanath, who claimed ownership of the field in two capacities. His main claim was as a Chela of deceased Sadashioswami and he claimed to have ascended his Gadi sometime in November 1947. His alternative claim was that he was an heir to Sadashioswami being the son of the sister or Sadashioswami.

3. After the defendant no. 1 dispossessed Khushal, he sold the field to one Parashram Balkrishan by a registered sale-deed dated 12th February 1949 and handed over possession to the purchaser. Parashram also parted with the field having sold it away by a sale-deed dated 24th January 1952 to the defendant no. 2, who is the appellant in this appeal, for a consideration of Rs. 2,996-14-0. While thus defendant no. 2 was in possession of the field, the plaintiff, who is one of the sons of Ambusa, filed a suit for possession. His case was that contemporaneous with the sale-deed there was an agreement of reconveyance which was entered into by Sadashioswami with the deceased Gunusa and that Gunusa had all along been trying to get a reconveyance in his favour. It was contended that the transaction was really a loan transaction. An effort was made to obtain a reconveyance by publishing a notice on 14-4-1941 in a local newspaper named Uday, and accordingly he attended the office of the Sub-Registrar at Amrawati on 30-4-1974 awaiting the real owner to come there in pursuance of the advertisement to execute the document of reconveyance. None, however, turned up/ However, according to the plaintiff, the ownership of the field continued with Gunusa and thereafter with his heirs. A relief on possession was thus claimed. the pleading of the plaintiff in paragraph 8 of the plaint was as follows:

'The plaintiff hence sues for possession of the field on the basis of his prior possession till the date of his dispossession ... ..... .....'

The sale by Gunusa of Sadashiowami was also challenged on the ground of want of legal necessity and it was alleged that it was not binding on Ambusa who had half share in the field. The price of the field was alleged to be Rs. 1000/- at the time of the sale.

4. The defence of the contesting defendants was that they denied the alleged agreement of reconveyance and title was claimed in the defendant no. 1 in two alternative capacities as already stated. The right of the plaintiff to file the suit was challenged on the ground that he had no subsisting title. It was also alleged that the plaintiff having allowed the claim to get a reconveyance to be bared by limitation the suit was liable to be dismissed. The defendant no. 2 raised an additional plea that he was a transferee for value in good faith from an ostensible owner and he thus claimed protection under Section 41 of the Transfer of Property Act.

5. The trial Court and the first appellate Court concurrently found that there was an agreement of reconveyance entered into by Sadashioswami by which he agreed to reconvey the field to Gunusa within a period of one year on payment of Rs. 177/-. The claim put forth by the defendant no. 1, that he was either a Chela, or that he was entitled to succeed to the property of Sadashioswami by virtue of his being sister's son was found against him. The plea raised by defendant no. 2, appellant Sheshrao, that he was a bona fide transferee for consideration was, therefore, protected under Section 41 of the Transfer of Property Act, was also negatived and it was found Act, was also negatived and it was found concurrently that the transferee had taken no steps to make any enquiry on the basis of which such a plea could be sustained. The Courts of fact decreed the claim of the plaintiff and held that the plaintiff was entitled to file a suit claiming possession on the basis of possessory title from the defendant no. 1, who had forcibly ousted him from possession and who had no better title to the field.

6. Against the judgment of the first appellate Court, the defendant no. 2 filed an appeal. In that appeal it was contended before the learned single Judge that the plaintiff's suit was not maintainable because the plaintiff had failed to prove any subsisting title and also that he was in possession within 12 years from the date of the suit. Another contention which was raised in second appeal was that the plaintiff's suit was barred by time, because the plaintiff had allowed his remedy for specific performance of the agreement of reconveyance contained in the Kararnama to be barred by time. The learned single Judge held that the suit as framed was not one for specific performance of an agreement of reconveyance, and therefore, the provision of Article 113 of the Limitation Act, 1908, did not bat the suit of the plaintiff.

7. The more substantial contention which was raised before the learned single judge was whether merely by virtue of the fact that a person was in lawful possession of the property he could file a suit against a trespasser, without any title, who had dispossessed him. On this question the learned Judge after reviewing a number of authorities, held that the defendant no. 2 had no title whatsoever, that he was a trespasser, that the title of the plaintiff on the basis of possession of Ganusa, his son Ambusa and Khushal from 7th June 1933 to June 1948 was clearly established ,and that such title was sufficient to fulfill the requirements of Article 142 of the Limitation Act. The learned single Judge also held that the suit having been filed on 26-9-1956 the plaintiff's possession within a period of 12 years from the date of dispossession which was in June 1948 was proved. It was held that the possession of Khushal could at least he held to be on behalf of all the sons of Ambusa who were co-owners of the field. The learned Judge also confirmed the findings of facts recorded by the first appellate Court that Vishwanath had failed to establish that he was a Chela of Sadashiowami, or that he was the son of sister of Sadashioswami. The learned Judge confirmed the finding that Sheshrao had not taken any steps to ascertain that his transferor had no power to make the transfer to him and that he had not acted in good faith as required by the provisions of Section 41 of the Transfer of Property Act. The appeal was, therefore, dismissed by the learned Judge. On leave under Clause 15 of the Letters Patent being granted by the learned Judge the appellant has filed this Letters Patent appeal.

8. In this appeal the learned counsel for the appellant fairly accepted the findings of fact that defendant no. 1 had failed to establish any title to the property. But the contention which he raised was that this was a dispute between two trespassers, namely, the defendant no. 1 and the plaintiff. According to him, the plaintiff had no kind of title to be in possession of the property after the expiry of the lease in favour of Gunusa executed by Sadashioswami and he must, therefore, also be taken to be a trespasser. The contention was that in such a case merely on the basis of prior possession a suit for restoration of possession on dispossession by a trespasser cannot be maintainable. According to the learned counsel, there was an additional factor in this case, namely, that the original owner Sadashiowami was dead and with the finding that the defendant no. 1 had no title to the property, the property was really without any owner against whom lawful possession of Gunusa and his heirs, namely, Khushal and the plaintiff, could not be said to be lawful possession to which they would be entitled to be restored.

9. We are unable to accept this contention. It is now well settled that the possession of a tenant after the expiry of the lease in his favour is juridical possession and is protected by law. If an authority for the proposition is needed it is to be found in a recent decision in Lallu Yeshwant Singh v. Rao Jagdish Singh 1968 MLJ 496 = AIR 1968 SC 620. In this decision their Lordships of the Supreme Court, while dealing with the nature of possession of a tenant after his lease stands terminated, have observed as follows:-

'Under the Indian Law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. A lessor is not entitled to use for to throw out the lessee.'

It will thus appear that after the lease in favour of Gunusa had terminated by efflux of time his possession and the possession of his heirs thereafter was a lawful and juridical possession which was protected by law. At the same time the defendant no. 1, who dispossessed Khushal, who was one of the con-owners being the heir of Ganusa, had no title to the property. He was, therefore, a trespasser who was not entitled to oust the person in lawful and juridical possession, much less dispossess him by use of force.

10. The question whether merely on the basis of a lawful prior possession the person, who was in such possession and has been dispossessed by another who has no right to dispossess or who has no right to be in possession can file a suit for possession has now been decided by the Supreme Court in a recent decision in Nair Service Society Ltd v. K. C. Alexander, : [1968]3SCR163 . The plaintiff in that case who had been in possession of land was dispossessed by the defendant and in a suit for possession filed by the plaintiff the question was whether the plaintiff could maintain a suit for possession (apart from a possessory suit under the Travancore Laws analogous to Section 9 of the Indian Specific Relief Act) without proof of title basing himself mainly on his prior possession. The High Court found in favour of the plaintiff. In appeal before the Supreme Court the same contention was raised that a suit for ejectment cannot lie without title and that a prior trespasser cannot maintain the suit against the later trespasser. The plaintiff's suit was held to be maintainable. While deciding the contention of the defendant their Lordships after observing that Section 8 of the Specific Relief Act did not prohibit a suit based on prior possession filed after the period of six months prescribed by Section 9 of the Specific Relief Act have approved the decision in Mustapha Sahib v. Santha Pillai, (1900) ILR 23 Mad 179 in which Subramania Ayyar J. observes:

'The rule in question is so firmly established as to render a lengthened discussion about it quite superfluous. Asher v. Whitlock (1865) 1 QB 1 and the rulings of the Judicial Committee in Mt. Sunder v. Mt. Parbati (1888) 16 Ind App 186 (PC) and Ismail Ariff v. Mahomed Ghous, (1893) 20 Ind App 99 (PC) not to mention numerous other decisions here and in England to the same effect, are clear authorities in support of the view stated above . . . . . Section 9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well-recognised doctrine expressed in Pollock and Wright on possession thus:-

Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner's title.'

Their Lordships of the Supreme Court with reference to these observations have observed in paragraph 13 of the judgment as follows:

'We entirely agree with the statement of the law in the Madras case from which we have extracted the observations of the learned Judges ... ..... .....'

After quoting these observations their Lordships have further observed in paragraph 14 as follows:

'The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bat a suit on prior possession within 12 years and 'title need not be proved unless the defendant can prove one'. The present amended Articles 64 and 65 bring out his difference .Article 64 enables a suit within 12 years from dispossession, for possession of immoveable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property on any interest therein based on title. The amendment is not remedial but declaratory of the law' (Underlining (herein ' ') is ours.)

The positions is further summarised in Paragraph 18 of the judgment after making a reference to two English decisions in (1865) 1 QB 1 and Burling v. Read (1848) 11 QB 904 and their Lordships have stated:

'The effect of the two cases is that between tow claimants, neither of whom has title in himself the plaintiff if dispossessed is entitled to recover possession subject of course to the law of limitation. If he proves that he was dispossessed within 12 years he can maintain his action.'

Thus it is clear that a suit for possession on the basis of a possessory title of the plaintiff who has been disposed by a person without any title is maintainable and the plaintiff is entitled to claim possession form the trespasser. Gunusa and after him his heirs were entitled to be in juridical possession in spite of the expiry of lease and in fact were in such juridical and lawful possession, they were not liable to be ousted by the defendant no, 1, who was a trespasser. The present suit was, therefore, maintainable and was rightly decreed because the suit admittedly is brought within 12 years from the date of dispossession, and it has been found on facts that the plaintiff was in possession with in the period of 12 years from the date of suit.

11. The contention, that the possession of Gunusa and his heirs could not be lawful because of the death of Sadashioswami, must also be rejected. Merely because the defendant failed to establish that he was the heir of Sadashioswami it could not be held that Sadashioswami did not have any other natural or religious heir and even assuming it to be so we fail to see how it can affect the nature of the possession of Gunusa and his heirs. The Question whether he had any religious or natural heir does not arise in this nor was the question as to who will become the owner of Sadashioswami's property in the absence of any such heir ever raised in these proceedings. It suffices, therefore, to say that the absence of any natural or religious or apparent heir of Sadashioswami coming forth to claim the property in suit cannot make unlawful the possession of Gunusa and his heirs, which was otherwise lawful.

12. The result, therefore, is that there is no reason to interfere with the judgment of the learned single Judge. The appeal, therefore, fails and is dismissed with costs.

13. Appeal dismissed.


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