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Hasmukh D. Desai and Co. Vs. Bhimbhai Ranchhodji Vashi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR644
AppellantHasmukh D. Desai and Co.
RespondentBhimbhai Ranchhodji Vashi
Cases ReferredCollector of Bombay v. Municipal Corporation of
Excerpt:
- - 8. the trial court held that the appellants had failed to prove that they had become owners by adverse possession. the trial court also held that the appellants had failed to prove that the tin sheet shed over the land was constructed by them in the year 1962. similar findings are recorded by the common judgment in both the suits. having failed in both the suits, the appellants have preferred these two appeals in the high court. it is difficult to hold that by these observations the learned chief justice intended to lay down the proposition that an admission on a question of fact made by a party in the course of a proceeding has in another proceeding no value whatever and cannot be regarded as a good piece of evidence relying on which the opposing party may contend that the claim.....r.a. mehta, j.1. these two appeals between the same parties arise from two cross suits which were heard together and disposed of by one common judgment by the trial court. the question is whether the appellants have become owners of the suit property by adverse possession. if they are right, their civil suit no. 307 of 1979 for declaration and injunction should have been decreed and special civil suit no. 20/80 filed against them by the respondent for possession of the suit property should have been dismissed.the record and proceedings of both the suits were called for, the relevant documents and evidence have been referred to at the time of hearing for admission of these appeals.2. the facts are not much in dispute. the respondent. is the owner of the suit land in ward no. 6 of per.....
Judgment:

R.A. Mehta, J.

1. These two appeals between the same parties arise from two cross suits which were heard together and disposed of by one common judgment by the trial court. The question is whether the appellants have become owners of the suit property by adverse possession. If they are right, their Civil Suit No. 307 of 1979 for declaration and injunction should have been decreed and Special Civil Suit No. 20/80 filed against them by the respondent for possession of the suit property should have been dismissed.

The Record and Proceedings of both the suits were called for, the relevant documents and evidence have been referred to at the time of hearing for admission of these appeals.

2. The facts are not much in dispute. The respondent. is the owner of the suit land in ward No. 6 of per Falia, Navsari. Adjoining to this open land there was also his land with Tabela (garage) bearing municipal No. 6/17. The respondent had filed Civil Suit No. 105/69 against the present appellants for recovery of possession of the property bearing municipal No. 6/17 a Tabela admeasuring 48' x 16' which was let at an yearly rent of Rs. 400/- in the year 1962. The respondent (Plaintiff in that suit) had alleged that the present appellants-tenants had been unauthorisedly using the present suit land which was adjoining to the leased land and thereby they had committed nuisance and annoyance by encroachment, (para 4 of ex. 41). The appellants had filed a written statement in that suit which is at ex. 42. In para 6 of the written statement, the appellants stated that the description of the suit property was not correct in the plaint. It was denied that there was open land of the plaintiff south to the leased property. It was stated that not only the land with the Tabela but also the open land was taken by them on rent from the plaintiff and the defendants-appellants were in possession of the entire land as tenants of the plaintiff. Ultimately the suit was settled and consent terms were filed which are at ex. 40 in the present proceedings. The consent terms in para 1 recite that the defendants (the present appellants) admit the suit of the plaintiff because all the reasons stated therein were correct and the defendants (appellants) have given up all the contentions taken in the written statement and no contention survived. By para 2 of the consent terms dt. 30th April 1970 it was provided that the defendants (appellants) shall hand over peaceful and vacant possession of the suit premises to the plaintiff. The court after satisfying itself about the lawfulness of the compromise passed an order for drawing decree in terms of the compromise and accordingly decree was passed which is at ex. 41.

3. Prior to that suit, a notice dt. 28th February 1969 (ex. 43) was given. Therein also the allegation was made that the appellants had committed nuisance and annoyance by encroaching upon and unauthorisedly using the adjoining open land not leased to them. The appellants in their reply dt. 25th March 1969 (ex. 44) contended that the open land was also held by them as tenants of the respondent and it is part of the same lease.

4. As the possession was not handed over in 1977 as per the consent decree Execution Application No. 5/78 was filed. Therein also the present appellants had filed reply (ex. 108) dt. 1st July 1978 and affidavit ex. 109 dt. 27th November 1978. In para 4 of the reply it was stated that the consent decree was in respect of the land bearing municipal No. 6/17 and since it was only for part of the demised premises, the consent decree was not legal on the ground that it was a part of tenanted premises and it was contended that the entire property consisting of municipal No. 6/17 and the adjoining open land was taken by the defendants-judgment debtors on lease from the plaintiff. In para 8 it was contended that since the consent decree was in respect of municipal No. 6/17 only and since that was the only property of which the possession was claimed in that suit and since there was an allegation that on the adjoining open land trespass was committed by the defendants and there was no prayer for possession of that land. the decree should not be executed. It was further contended that in addition to the property bearing municipal No. 6/17 covered by the consent decree, the defendants were in possession as legal tenants of the judgment-creditors in respect of the other adjoining land. In the affidavit (ex. 109) also it is stated on oath that apart from the land bearing municipal No. 6/17 the adjoining land on the south was continuing in their possession as lawful tenant of the same and since the consent decree was confined to a part (6/17) only the same was illegal and it was further stated that the entire property was held by them as tenants and, therefore, the plaintiff was not entitled to sue and obtain a decree for only a part, namely (6/17 only) and since the notice terminating the tenancy was also given in respect of 6/17 only the tenancy could not have been terminated piecemeal and the suit and the consent decree were not legal and the decree was not executable. In para 2 also it is again reiterated on oath that the entire property was taken by the judgment-debtors at a time as lawful tenants of the respondent. In para 7 also the same statement about being tenants of the judgment-creditor in respect of this land is repeated and the contention was that the decree was not executable.

5. The executing court held that the consent terms provided for delivery of possession of the suit property and the description of the suit property was the tenanted property bearing municipal No. 6717 and, therefore, the executing court could execute the decree in respect of that land only and accordingly overruling the objections against the executability, the judgment-creditors were given possession of only the leased portion bearing municipal No. 6/17.

6. Thereafter the present appellants filed Civil Suit No. 307/79 for a declaration that they had become owners by adverse possession in respect of the land adjoining to 6/17 and for an injunction restraining the respondent from disturbing their possession.

7. The respondent also filed Special Civil Suit No. 20/80 for recovery of possession of the remaining land which was not leased by them and which remained in possession of the present appellants. In both the suits the same question arose - whether the appellants had become owners by adverse possession.

8. The trial court held that the appellants had failed to prove that they had become owners by adverse possession. The trial court also held that the appellants had failed to prove that the tin sheet shed over the land was constructed by them in the year 1962. Similar findings are recorded by the common judgment in both the suits. Having failed in both the suits, the appellants have preferred these two appeals in the High Court.

9. The Learned Counsel for the appellants has submitted that on his own showing the respondent has consistently stated that appellants were trespassers right from the beginning and they had unauthorisedly occupied the suit land and, therefore to his knowledge and without any obstruction the appellants have openly, peacefully and continuously since more than 12 years remained in possession of the suit land, and, therefore, the trial court was in error in not decreeing in their favour. The Learned Counsel for the appellants has also submitted that the reliance placed by the trial court on the so called admission in the previous suit was not admissible at all in the subsequent proceedings; in any case the so called contention of tenancy was withdrawn by the consent purshis. Moreover, the so called contention or admission has been proved to be false, therefore, even if it was treated as an admission and admissible one, it was not conclusive of the averments made therein and considering all the evidence and admissions of both sides the adverse possession is proved. In support of these contentions the Learned Counsel for the appellants has referred to several rulings.

10. Since more reliance is placed on the evidence in the nature of admissions and since the Learned Counsel has addressed us at length, we would first consider the arguments in that respect. The Learned Counsel for the appellants very strongly relied on the Division Bench judgment in the case of Rambai Shrinivas v. Government of Bombay AIR 1941 Bombay 144, wherein it is held that admissions made by a person concerning the subject-matter in dispute in the court in a proceedings, cannot have any evidentiary value in adjudging upon the truth or otherwise of the claim made by that person in a subsequent proceeding concerning the same subject-matter. Relying on this, the Learned Counsel for the appellants submitted that the so called admissions in the written statement (ex. 42) and for that matter in the reply and the affidavit in execution (ex. 108 and ex. 109) in earlier litigation were inadmissible in evidence in the present suits, and the trial court has erred in basing its findings and conclusions on that.

11. The above judgment was subsequently considered by another Division Bench of the Bombay High Court in the case of Dattadava Shripati Mohite v. Shankar Ishwara Mohite and Anr. AIR 1960 Bombay 153. The Division Bench observed that the earlier Division Bench had not laid down such a proposition as canvassed by the present appellants and the Division Bench took the opportunity of stating that the observations made in that case were often misunderstood. It was observed that the earlier Division Bench merely laid down:

that an admission made by a party in a pleading in a civil proceeding will be regarded as binding upon him in that proceeding and he will not be permitted to go back upon it in the course of that proceeding; but the admission cannot be regarded as conclusive and binding upon him in any other proceeding and it is open to him to show that that admission made in the earlier proceeding was in fact not true.

It was further observed as under:

It is difficult to hold that by these observations the learned Chief Justice intended to lay down the proposition that an admission on a question of fact made by a party in the course of a proceeding has in another proceeding no value whatever and cannot be regarded as a good piece of evidence relying on which the opposing party may contend that the claim made in the subsequent proceeding is unjustifiable in the light of the admissions made in the earlier proceeding. In our view Rambai's case 43 Bom. LR 232 (AIR 1941 Bom. 144) is not an authority in support of the view that the court is not even entitled to consider admissions solemnly made by a party in the course of proceedings in other suits relating to the same subject matter.

12. The Supreme Court had also an occasion to consider both these judgments in the case of Basant Singh v. Janki Singh and Ors. : [1967]1SCR1 . The Supreme Court observed that the observations in Rambai's case were commented upon and explained by the Bombay High Court in D.S. Mohite v. S.I. Mohite (supra) and the Supreme Court held that:

An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of Section 17 of the Evidence Act, 1872, and may be proved against him in other litigations.

and after referring to Phipson on Evidence and the English Law and a decision of House of Lords, the Supreme Court stated the Indian law in the following words:

Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.

Thus there is very clear pronouncement of the Supreme Court that admissions by a party in a previous proceeding may be used against him in other suits but such admissions cannot be regarded as conclusive and it is open to the party to show that it is not true.

13. The Learned Counsel for the appellants submitted that the decision in Rambai's case (supra) would be binding to this Division Bench and if another Division Bench has taken a different view or even. If the Supreme Court has taken different view, it would not be proper for any Division Bench to say so and the matter is required to be admitted and referred to Full Bench. In this connection he relied on the observations in the case reported. at 1983 Guj. Law Herald 273. However, we do not feel that there is any necessary for us to refer the matter to any larger bench. The first Division Bench Judgment of Rambai's case was explained by another Division Bench of the same High Court prior to 1st May 1960 found the Supreme Court has made a clear pronouncement after referring to both these judgments and we would be bound to follow the law declared by the Supreme Court.

14. There is another Supreme Court judgment in the case of Nagubai Ammal and Ors. v. B. Shama Rao and Ors. AIR 1965 SC 593. Therein also it has been held that an admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made and it can be shown to be erroneous or untrue.

15. In the case of Bat Bahadur Singh and Ors. v. Raghubir Prasad and Ors. : AIR1927All385 , also it has been held that admissions are of no evidential value once they are proved untrue.

16. The Learned Counsel for the appellants has then submitted that even if the admission is admissible it is open to the person making admission to prove that it is not true and in the facts of the present case, it has been proved not to be true. In the earlier proceeding he had claimed to be tenant of the respondent in respect of the present suit land, he had withdrawn that contention by the compromise purshis and it has been proved that he is not a tenant of the present suit land and, therefore, that admission is not true and, therefore, no reliance could be placed on that. On the other hand it is to be appreciated that admission is not merely that he is tenant of the suit land. The admission is that he was tenant of the suit land and the respondent was the landlord and the relationship between them was that of tenant and landlord in respect of the suit land. Therefore, there was not only claim of tenancy, which is found to be false, but there was admission about the title of the respondent and such admission has not been proved to be false. In fact at no point of time the title of the respondent was disputed. In the reply ex. 44 dt. 25th March 1969 to the earlier suit notice the appellants had claimed that they were tenants of the respondent in respect of the adjoining open land also. The same admission of the title and ownership of the respondent is contained in the written statement which is at ex. 42. In the written statement the denial was that the appellants were trespassers but there was no denial that the respondent was the owner of the present suit land. On the contrary that was admitted. That was in fact common case of both the sides that the respondent is the owner of both the parts of that land. Exhs. 108 and 109 - the reply and the affidavit filed by the present appellants in the execution proceedings, also contain the admission of the title and ownership of the respondent. Again tenancy in respect of present suit land is claimed and it is stated that the appellants were tenants of the respondent in respect of the present suit land also. Thus as late as 27th November 1978 the appellants have stated on oath that the respondent was their landlord and they were tenants in respect of the present suit land.

17. Article 65 in the Schedule to the Limitation Act would be relevant article of limitation. It provides that suit for possession of immoveable property shall be filed within 12 years from the time when the possession of the defendant becomes adverse to the plaintiff. Therefore, we shall have to find as to when the possession of the appellants became adverse to the respondent.

18. On the concept of adverse possession considerable light is thrown by decided cases. In P. Lakshmi Reddy v. L Lakshmi Reddy : 1995(5)SCALE509 the Supreme Court has observed in para 4 as follows:

Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec claim nec precario. (See Secretary of State for India v. Debendra Lal Khan . The possession required must be adequate in continuity, in publicity and in extent to show it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna 27 Ind. App. 136 at P. 140 (PC).... The co heir in possession cannot render his possession adverse to the other co heir not in possession merely by a secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v Appuhomy, 1912 AC 230). It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

Thus the principal elements of adverse possession are (i) actual possession; and (ii) open hostile animus to hold adversely to the competitor and the Supreme Court also approved the following observations from Angell on Limitation in para 7 of the judgment:

It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession. Consonant with this principle the commencement of adverse possession. in favour of a person, implies that that person is in actual possession, at the time with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.

Therefore, it is not enough that a person has been in actual possession of the property for a length of time. It has also to be seen that as to when such possession became adverse to the competitor by open hostile animus of the person holding it adversely.

19. In a recent case of Gava Parshad Dikshit v. Dr. Nirmal Chander and Anr. : [1984]2SCR287 , the Supreme Court has observed as follows:

We find ourselves wholly in agreement with the view taken by the High Court that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title.' It also observed that mere continuance of unauthorised possession even for a period of more than 12 years is not enough and in absence of the assertion of hostile title there could not be any claim of adverse possession.

20. The Learned Counsel for the appellants also referred to the case of Maharaja Srischandra Nandy and Ors. v. Baijnath Jugal Kishore and submitted that the fact of adverse possession need not be shown to have been brought to the knowledge of the competitor and animus to possess adversely can be gathered from the facts and circumstances of the case. In that case the earlier Privy Council case of Secretary of State v. Debendra Lal Khan and Radhamoni Dehi v. Collector of Khulna 27 Cal. 943 were referred to and quoted with approval:

the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. The classical requirement is that the possession should be nec vi nec claim nec precario.... It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running out, if exercises due vigilance to be aware of what is happening.

The Learned Counsel for the appellants therefore submitted that merely because the respondent was not vigilant and did not care to know about the adverse nature of the possession by the appellants, it cannot be said that the appellants were not in adverse possession. He further submitted that it was a common case that the appellants were in unauthorised possession right from the beginning and even at the time of the earlier suit in 1969 and continuously thereafter also. In support he read paragraphs 13, 15 and 20 of the deposition of Bhimbhai himself (ex. 149). However, it is to be noted that for animus to possess adversely to the competitor is an essential element and such animus and actual possession should be adequate in continuity, in publicity and in extent to show that this possession is adverse to the competitor. When the appellants admitted the title of the respondent, they did not claim adversely to the respondent merely because the claim of tenancy failed, it cannot be said that possession became adverse from the beginning because there was no intention to possess adversely to the title of the respondent.

21. In the case of Alii Babiandothers v. Krishna Sahuandothers : AIR1950Ori250 , it was held that where there has been a compromise decree and admission of title of the plaintiff and acceptance of the character of permissive possession of the defendant, it is obvious that adverseness of possession is terminated and that the continuance of the possession after the decree is prima facie only permissive. The Learned Counsel for the appellants tried to distinguish this case by submitting that there was not only admission of the title but also there was an agreement to deliver up possession. However, that would not make any difference to the question of animus to hold adversely. In para 4, the Orissa High Court observed that even if it is assumed that the plaintiff did not actually surrender possession, there is still a clear break in the nature of the plaintiff's possession by reason of their admission of the defendant's title and the agreement to deliver up possession, and adverso possession in order to confer a title must be continuous for the full period of l2 years. In the concurring judgment, another learned Judge, Jagannadhadas, J. in para 15 referred to the case of Subbayya Pandara v. Mohmed Mustafa AIR 1923 PC 175 where in it was held that a mere declaration about the title of the plaintiff in a decree against the defendant who was in actual adverse possession by the date of the suit and who continued in possession in spite of the declaration, does not interrupt adverse possession, but on the other hand it emphasizes the fact that possession was adverse. The learned Judge of the Orissa High Court held that this principle can have no application where the defendant him self by the compromise in the decree admits the title of the plaintiff and undertakes to give up possession treating himself as a person holding permissive possession. In the Privy Council case the declaration was on contest and therefore there was no change in the animus of the possessing party: but where there has been a compromise and admission of title of the plaintiff and acceptance of the character of permissive possession of the defendant, it is obvious that adverseness of possession has been terminated and that the continuance of the possession after the decree is prima facie only permissive, In the present case also not only that there is no evidence of adverse possession and any animus or intention to possess adversely prior to 1969 there is a definite admission in 1969 and 1978 not to claim adversely to the competitor, but the animus is only to hold and claim possession as tenant of the respondent.

22. A case very similar on facts to the present case is the case of Ramachandra Manohar v. Vasant Narayan and Ors. AIR 1955 Nagpur221.Para7of the judgment which is relevant for our purpose reads as under:

The Learned Counsel for the appellant then contended that the appellant was in adverse possession of the property over since the year 1926, that he had perfected his title to the house and that therefore he is entitled to a decree on that ground. We cannot accept the argument. The appellant had admitted the title of Narayan and Shanker in the suit of 1926. This suit ultimately terminated on 6-9-1932 when Ganpatsa's appeal was dismissed by the late Court of the Judicial Commissioner. Thus, at any rate till that date the appellant's possession cannot be regarded as adverse to Narayan and Shanker. It must, in the light of his admission of their title, be regarded as on their behalf and not independent. When such is the case, it follows that his continued possession of the property must also be deemed to be in the same capacity unless it is established that he, to the knowledge of Narayan and Shanker, ceased to hold possession on their behalf and assumed possession in his own right and on his own behalf. There is no evidence to prove this. The Learned Counsel stated that the appellant's name continued to be shown in the municipal records, that he paid the municipal taxes and that he repaired the house subsequent to 1932. Even if all these assertions are correct, we fail to see how they can lead to the inference that the character of the appellant's possession changed to the knowledge of Narayan and Shanker. We must, therefore, hold that the appellant had not perfected his title by adverse possession.

23. In the present case also the appellants have admitted the title of the respondent in the suit of 1969 and also in the execution proceedings in 1978 and also in the earlier reply to the notice prior to the suit of 1969. In the light of these admissions of the title of the respondent, the possession of the appellants cannot be regarded as adverse to the respondent and the claim of adverse possession has been made for the first time in the present suit in 1979. As seen earlier even in the affidavit on oath filed by the appellants as late as 1978, the claim is made of tenancy admitting the title of the respondent landlord.

24. The Learned Counsel for the appellants relied on the judgment ,in the case of Collector of Bombay v. Municipal Corporation of the city of Bombay and Ors. AIR 1951 Bombay 469. In that case the Municipal Corporation of the city of Bombay had acquired possession of the land in pursuance of a grant of land free of land revenue and free of rent and continued in possession continuously and openly. Ultimately it was found that no formal grant was executed as required by law and, therefore, no effectual grant passing the title in the land to the Corporation. However, since the Corporation had no legal title but nevertheless only possession of the land under colour of an invalid grant of land in perpetuity and free from rent for the purpose of market, such possession not being referable to any legal title it was prima facie held to be adverse to the legal title of the Government as the owner of the land from the very moment the predecessor in title of the Corporation took possession of the land under invalid grant. This possession had continued openly as of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent was just as much an integral part or an inseverable incident of the title so acquired as was the obligation to hold the land for the purposes of a market and for no other purpose. This judgment is of no assistance to the appellants to show animus to hold adversely to the competitor.

25. In view t the aforesaid discussion we find that the appellants have utterly failed to prove any animus to hold adversely to the respondent competitor till 1978. In 1969 in the reply to the notice (ex. 44) and in the written statement in Civil Suit No. 105/69 (ex. 42) and in the reply (ex. 108) dt. 1st July 1978 in the Darkhast and the affidavit (ex. 109) dt. 27th November 1978 were clear admissions of the title of the respondent and no animus whatsoever to hold adversely to the respondent and, therefore, the appellants have utterly failed to prove their case and the learned trial Judge was justified in holding against the present appellants in both the suits, and, therefore, judgments and decrees in both the suits are required to be confirmed. In the result both these appeals fail and are dismissed at the admission stage.


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