Full Judgment Text
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CASE NO.:
Appeal (civil) 6345 of 2000
PETITIONER:
M/s Kamakshi Builders
RESPONDENT:
M/s Ambedkar Educational Society & Ors
DATE OF JUDGMENT: 18/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. This appeal is directed against the judgment and order dated
31.12.1999 passed by the High Court of Andhra Pradesh, allowing the
appeal from a judgment and decree dated 05.09.1998 passed by the IV
Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 161 of 1989.
2. Respondent No. 3 herein was the owner of the property which is
situated at Bagh Lingampalli, Hyderabad. It was let out to Respondent No.
1, where an educational institution was being run on a monthly rent of
Rs.1,200/- by a deed of lease dated 16.05.1973. The period of lease was
initially for 11 months, which expired in 1975. Respondent No. 1, however,
did not surrender the tenancy or deliver vacant possession of the tenanted
premises to Respondent No.3. It tendered rents till December 1976. No
rent, however, was demanded by Respondent No. 3 from Respondent No.1.
Several constructions were raised by it from time to time.
3. Respondent No. 3, however, entered into a development agreement
with the managing partner of the appellant and other persons on 01.04.1986.
A deed of partnership was executed on 21.04.1986. Disputes and
differences having arisen between the partners, the same were referred to an
arbitrator. An arbitration award was passed on 22.11.1987, in terms whereof
a sum of Rs.4,00,000/- was awarded in favour of Respondent No. 3. The
said award was made the rule of court in terms of Section 14(2) of the
Arbitration Act, 1940 by an order dated 29.02.1988. Allegedly, by reason of
the said award, the appellant became the owner of the property. Respondent
No. 1 was called upon to pay rents in respect of the suit property by a notice
dated 22.11.1987. The tenancy was terminated by a notice dated
30.10.1988. On or about 08.12.1988, Respondent No. 1, in reply to the said
notice, asked the appellant to furnish the particulars in regard to the
ownership of the suit property. It, however, not claimed therein that it had
acquired any ownership by reason of a purported oral gift made by
Respondent No. 3 herein, as appears to be the case now. As it failed to
vacate the premises, a suit for recovery of possession and arrears of rents
and also for damages for wrongful use and occupation of the property was
filed by the appellant. In the written statement filed in the suit, it was, inter
alia, contended that Respondent No. 3 herein made an oral gift in its favour
on or about 01.10.1975. In the alternative, it was contended that it had
acquired an indefeasible title in respect of the property in question by
adverse possession. Respondent No. 3 in its written statement supported the
case of the appellant, inter alia, denying and disputing the claim of
Respondent No. 1 herein that he made an oral gift in its favour.
4. In the suit, inter alia, the following issues were framed :
"I. Whether the oral gift by the third defendant in
favour of first defendant is true and valid and
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binding on the plaintiff ?
II. Whether the documents relied upon by the plaintiff
are brought into existence in between the plaintiff
and third defendant in the circumstances alleged in
W.S. ?"
5. Respondent No. 1 admittedly did not examine himself. The suit of the
appellant was decreed. The learned Trial Judge opined :
i) The burden was on Respondent No. 1 to prove the oral gift.
ii) There was no reason for it not to disclose thereabout in its reply to the
notice issued by the appellant.
iii) No declaration was filed by Respondent No. 1 before the Urban Land
Ceiling Authority in the year 1976.
iv) A purported letter written by Respondent No. 3 confirming the oral
gift had not been produced.
v) Although constructions were raised by it on the suit premises, in none
of the applications, the right to make constructions was based on the
ownership of the property derived by reason of the oral gift.
vi) No disclosure was made in regard to the ownership of the property, in
the return filed by it before the Registrar under the Societies
Registration Act.
vii) No resolution had been passed by the Governing Body accepting
alleged oral gift.
viii) No special quota or any reservation in the institution run by
Respondent No. 1-Society for Muslims, having been made, the plea
of oral gift cannot be believed.
ix) No display on any board was made mentioning that the property was
gifted to Respondent No.1-Society.
x) No mutation was effected pursuant to or in furtherance of the alleged
oral gift on 01.10.1975.
xi) The witnesses of the purported oral gift being DW-2, DW-3 and DW-
4, being the Chairman of the Respondent No.1-society, his P.A. and a
Chartered Accountant and friend of DW-2 respectively, no reliance
can be placed upon their evidence.
xii) Plea of purported oral gift was made for the first time only in the
written statement.
xiii) No gift tax was paid in respect of the said purported gift either by
Respondent No. 3 or by Respondent No.1.
xiv) Had Respondent No. 1 any intention to make any gift, ordinarily it
would have been presumed to do so in favour of the minority Muslim
Societies.
xv) No explanation had been offered by Respondent No. 1 as to why it
paid rent upto October 1976.
xvi) In none of the letters addressed by Respondent No. 1 to the
University Grants Commission, Osmania University, Urban Land
Ceiling Authority, Registrar of Cooperative Societies, Municipal
Corporation of Hyderabad, the factum of the alleged deed of gift was
disclosed.
xvii) The purported reply sent to the notice marked as Ex. A4 had not
been disclosed.
xviii) For proving the oral gift Respondent No. 1 should have examined
Respondent No.3.
xix) Respondent No. 1 had not been able to show that it had acquired title
by adverse possession.
6. The High Court, however, by reason of the impugned judgment
reversed the said judgment holding :
i) There was no reason as to why there was no demand to pay rent
from Respondent No.1 for a period of ten years.
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ii) No explanation was offered as to why Respondent No. 1was asked
to deliver vacant possession of the property only in the year 1987
and a suit was filed only in the year 1989.
iii) As Respondent No. 1 constructed a large number of structures on the
schedule property upon obtaining necessary permission from the
Municipal Corporation, Hyderabad and has been paying taxes
thereupon and having informed thereabout to various authorities like
University Grants Commission, Osmania University, Government of
Andhra Pradesh, no explanation was offered from Respondent No. 3
as to why he had been keeping silence for the period upto his entering
into agreement with the appellant as a partner and allowing an award
to be passed by the learned Arbitrator.
iv) Acquiescence on the part of Respondent No. 3 would give rise to a
presumption that Respondent No. 1 had been allowed to raise
construction, which must have been done pursuant to the oral gift of
the property.
v) The reasoning of the trial court that donor being a Muslim would not
have gifted it to an institution belonging to other community cannot
be accepted. It was not necessary for Respondent No. 1 to inform
about the said oral gift to various authorities including the University
Grants Commission.
vi) The findings of the learned Trial Judge disbelieving the case of
Respondent No. 1 are based on surmises and conjectures.
vii) Non-examination of Respondent No. 3 would give rise to an adverse
inference as burden of proof lay to show lay on him to show that he
had not made any oral gift having regard to his conduct apart from the
oral testimony that Respondent No.1 has paid rent to Respondent No.
3 till 1976.
viii) No materials was produced to show that in fact such rent was tendered
after 1975.
7. As regards the claim of Respondent No. 1 that it had perfected its title
by adverse possession, it was held that although a tenant cannot claim
adverse possession so long as he continues to be a tenant, but once his
tenancy is determined, his possession would be adverse to that of the owner.
8. Appellant is, thus, before us.
9. Mr. Dushyant A. Dave, learned Senior Counsel appearing on behalf of
the appellant, would submit :
i) The High Court committed a serious error in passing the impugned
judgment insofar as it failed to take into consideration that
Respondent No. 3 being admittedly the owner of the property, the
burden lay on Respondent No. 1 who had alleged an oral gift was
made in its favour, and it having failed to prove the same, assuming
that Respondent No. 3 did not demand rent or did not take step
therefor, Respondent No. 1 cannot be said to have proved its case.
ii) The question of Respondent No. 1 acquiring any title by adverse
possession would not arise, as at all material point of time, it was a
tenant.
10. Mr. K. Parasaran, learned Senior Counsel appearing on behalf of
Respondent No. 1, would, on the other hand, submit :
i) The burden of proof lay heavily on Appellant to prove the oral gift
was made by examining the donor i.e. Respondent No. 3 in the suit
and in any event, as it was incumbent on him to examine himself
inasmuch he having supported the case of the appellant must also be
held to be plaintiff.
ii) Although DW-2, one of the attestors of the oral gift in his cross-
examination stated that he had written a letter of thanks to Respondent
No.3 for his generous donation, non-production thereof would not
give rise to an adverse inference, inasmuch as had the Respondent No.
3 gone into the witness box, a suggestion would have been put to him
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in regard thereto.
iii) The learned Trial Judge committed a serious error in opining that
Respondent No. 1 should have displayed the factum of oral gift on
any board, such a conduct, Mr. Parasaran would contend, is very
artificial and unnatural.
iv) Although, no application for mutating the name of Respondent No. 1
was filed, the same was not sufficient to negative the gift, particularly
in the context of other surrounding circumstances.
v) The learned Judge applied different standards by making observation
that Respondent No. 1 had not made any declaration before the Urban
Land Ceiling Authorities about the gift and no minutes thereabout had
been produced, as the appellant or Respondent No. 3 should have
produced records of declaration before the Urban Land Ceiling
Authorities, particularly having regard to the fact that the burden of
proof in that behalf was on the appellant as it filed a suit for
ejectment.
vi) Assumption of the learned Trial Judge that Respondent No. 3 being a
Muslim would have gifted the property to some minority institution is
based on conjectures.
vii) The Trial Court has also committed a serious error in drawing adverse
inference against Respondent No. 1 for not issuing any letter to the
University Grants Commission, Osmania University, Urban Land
Ceiling Authorities, Registrar of Cooperative Society, Municipal
Corporation of Hyderabad, as there was no occasion therefor.
11. The learned counsel would contend that having regard to the
provisions contained in Article 67 of the Limitation Act, the suit was barred
by limitation. The deed of lease, being for a period of 11 months, expired
on 16.07.1974 and limitation would be deemed to run from the said date.
12. In this connection, our attention has also been drawn to the evidence
of PW-1, who was the Managing Partner of the appellant, which reads thus :
"Just one or two months prior to execution of
A.10, I came into contact with D.3. I do not remember
the persons who introduced D.3 to me\005I came to know
through D.3 that D.1 is tenant. On the date D.3 was
introduced to me, he informed that D. 1 is not paying the
rents for the last 10 years\005"
13. As it was known to the said witness that Respondent No. 1 had not
been paying rents even before the partnership deed was entered into, the
appellant would be presumed to have no knowledge that Respondent No. 1
had been in possession of the property in assertion of his title by not paying
rents. As Respondent No. 1 was in possession for a period of more than 12
years, it must be held to have acquired title by prescription.
14. Respondent No. 3 was admittedly the owner of the property. As his
ownership had not been disputed, the burden was on Respondent No. 1 to
prove his title. It has, as noticed hereinbefore, claimed title : (i) by reason of
an oral gift; and (ii) by adverse possession.
15. The case that the oral gift was made on 01.10.1975 was specifically
made out. The witnesses to the said oral gift were members of the
Governing Council, his Personal Assistant and a Chartered Accountant, who
admittedly was a friend of DW-2.
16. It is expected of a person who has obtained title by reason of an oral
gift; Hiba although permissible in law, but a heavy burden lay on him to
prove the same. Respondent No. 1 is an educational society. It was running
an institution on the suit property. It was, therefore, expected of it that it
would insist on execution of a registered deed of gift.
17. It may be true that, as a defendant, it was not required to examine
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Respondent No. 3 herein , who had been siding with the plaintiff by calling
him as a witness by getting summons to depose in the court. There cannot
be any doubt whatsoever that only by reason of the fact that Respondent No.
3 did not get himself examined for one reason or the other, the same would
mean that Respondent No. 1 discharged its burden. The learned Trial Judge
did not place reliance on depositions of the witnesses examined on behalf of
the Respondents to prove oral gift as they were interested persons. The High
Court did not deal with the matter. The learned Trial Judge analysed the
evidences brought on record by the parties. So far as the appreciation of
evidence based on oral evidence is concerned, the learned Trial Judge
having had the occasion to notice the demeanour of the witnesses, was the
best judge to arrive at a finding in regard to their reliability or
trustworthiness. The High Court did not deal with the matter, ordinarily it
could not have even done so [See Raj bir Kaur and Another v. S. Chokesiri
& Co. (1988) 1 SCS 19].
18. It may be true, as has been contended by Mr. Parasaran, that conduct
of the parties would be relevant, but what would be more relevant is the
conduct of a party, who from his status of a tenant acquires the status of the
owner of the property. Acquisition of such ownership by way of gift and,
thus, wholly without consideration, is not expected of a society registered
under the Societies Registration Act. Not only that it was acknowledged
such donation to the donor by issuing an appropriate letter in that behalf
(which is said to have been done). DW-2 although stated before the court
that such a letter had been written, the same had not been proved.
19. Mr. Parasaran himself has relied upon a decision of this Court in
Gopal Krishnaji Ketkar v. Mamomed Haji Latif & Others [1968 (3) SCR
862] wherein this Court laid down the law in the following terms :
"\005Even if the burden of proof does not lie on a party,
the Court may draw an adverse inference, if he withholds
important documents in his possession which can throw
light on the facts at issue. It is, in or opinion, a sound
practice for those desiring to rely upon a certain state of
facts to withhold from the Court the best evidence which
is in their possession which could throw light upon the
issues in controversy and to rely upon the abstract
doctrine of onus of proof\005:
20. The said decision has been noticed by this Court in subsequent
decisions in Punit Rai v. Dinesh Chaudhary [(2003) 8 SCC 204] and
Citibank N.A. etc. v. Standard Chartered Bank and Others etc. [(2004) 1
SCC 12]
21. As the said letter has not been produced, the inference which could be
drawn therefrom is that either DW-2 did not tell the truth that such a letter
was written and/or an adverse inference could be drawn that had the said
letter been produced, the same would have gone against the interest of
Respondent No. 1. In making an oral gift by an owner of the property in
favour of his tenant apart from it being wholly unlikely, actual delivery of
possession is imperative. There is nothing on record to show that at any
point of time, Respondent No. 3 had delivered the possession of the
premises in question to Respondent No. 1. Respondent No. 1 being a tenant,
continued to be a tenant. Its status as a lessee on its own showing merged
into a higher status. At what point of time such status was changed been a
relevant fact. It was within the special knowledge of Respondent No. 3 The
onus lay heavily on him to prove the same. It failed to discharge its burden.
22. The learned Trial Judge cannot be said to have committed any error in
noticing the fact that Respondent No. 1 on its own showing did not file any
application for mutation of its name before the Revenue authorities. It, even
did not take any step to let others know about its change of status, be it the
revenue department, or be it other authorities with which it was dealing,
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namely, the University Grants Commission, Government of Andhra Pradesh,
Osmania University, or even Municipal Corporation of Hyderabad. An
application for mutation of one’s name in the revenue records by the parties
although would not by itself confer any title, but then a presumption in
regard to the nature of possession can be drawn in that behalf. Had such an
application been filed by Respondent No. 1 before the concerned authorities,
at least it could have been shown that it had claimed possession on its own
right, not as a tenant.
23. The High Court although noticed the lease came to an end in the year
1975 and if from the said date or at least from the date of purported oral gift
allegedly made in its favour by Respondent No.1. Any change in the nature
of its position occurred, it was expected of it to accept the same by its
conduct. Why it would pay rent to Respondent No. 3 till October 1976 has
not been explained.
24. Acquiescence on the part of Respondent No. 1, as has been noticed by
the High Court, did not confer any title on Respondent No. 1. Conduct may
be a relevant fact, so as to apply the procedural law like estoppel, waiver or
acquiescence, but thereby no title can be conferred.
25. It is now well-settled that time creates title.
26. Acquisition of a title is an inference of law arising out of certain set of
facts. If in law, a person does not acquire title, the same cannot be vested
only by reason of acquiescence or estoppel on the part of other.
27. It may be true that Respondent No. 1 had constructed some buildings;
but it did so at its own risk. If it though that despite its status of a tenant, it
would raise certain constructions, it must have taken a grave risk. There is
nothing on record to show that such permission was granted. Although
Respondent No. 1 claimed its right, it did not produce any document in that
behalf. No application for seeking such permission having been filed, an
adverse inference in that behalf must be drawn.
28. It may be true that Respondent No. 3 herein should have examined
himself and the learned Trial Judge committed a serious error in drawing an
adverse inference in that behalf as against Respondent No. 1. It was,
however, so done keeping in view the fact that Respondent No. 3 was
evidently not interested in the property in view of the fact that it had suffered
a decree. For all intent and purport, even if the submission of Mr. Parasaran
is accepted that the appellant is claiming is claiming only by reason of an
award, he has transferred the property in his favour. He received a valuable
consideration in terms of the award. We are not concerned with the validity
thereof. Non-examination of Respondent No. 3 indisputably would give rise
to a presumption, as has been held by this Court in Sardar Gurbaksh Singh v.
Gurdial Singh [AIR 1927 PC 23], Martand Pandharinath Chaudhari v.
Radhabai Krishnarao Deshmukh [AIR 1931 Bombay 97], and The
Ramanathapuram Market Committee, Virudhunagar v. East India Corpn.
Ltd., Madurai [AIR 1976 Madras 323] and Vidhyadhar v. Manikrao and
Anr. [(1999) 3 SCC 573], but by reason of presumption alone, the burden is
not discharged. A title is not created.
29. A claim of title by prescription by Respondent No. 1 again is not
tenable. It based its claim on a title. It had, therefore, prima facie, no
animus possidendi.
30. Reliance placed by Mr. Parasaran on Article 67 of the Limitation Act
is also not apposite. It is a special provision. It would apply in a case where
a tenant has ceased to be a tenant in terms of the provisions of the Andhra
Pradesh (Rent and Eviction Control) Act. A tenant continues to be a tenant
despite termination of tenancy. Article 67 would not be attracted in a case
where a tenant remains a statutory tenant. In a case of this nature, Article 65
would apply. As the claim of Respondent No. 1 was based on a title, the
onus was on him to prove the same. Respondent No. 1 failed to discharge
the same and, therefore, the learned Trial Judge, in our opinion, has
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committed no error in passing a decree in favour of the plaintiff.
31. In Smt. Shakuntala S. Tiwari v. Hem Chand M. Singhania [(1987) 3
SCC 211], whereupon Mr. Parasaran placed strong reliance, this Court was
considering a case where termination of tenancy in terms of Sections 12 and
13 of the Bombay Rent Act stood admitted. The question of applicability of
Articles 66 and 67 of the Limitation Act was considered from that end. It
was held:-
"12. If that is so then on the strict grammatical
meaning Article 67 of the Limitation Act would be
applicable. This is indubitably a suit by the landlord
against the tenant to recover possession from the
tenant. Therefore the suit clearly comes within
Article 67 of the Limitation Act. The suit was filed
because the tenancy was determined by the
combined effect of the operation of Sections 12 and
13 of the Bombay Rent Act. In this connection, the
terms of Sections 12 and 13 of the Bombay Rent Act
may be referred to. At the most it would be within
Article 66 of the Limitation Act if we hold that
forfeiture has been incurred by the appellant in view
of the breach of the conditions mentioned in Section
13 of the Bombay Rent Act and on lifting of the
embargo against eviction of tenant in two. Article
66 or Article 67 would be applicable to the facts of
this case; there is no scope of the application of
Article 113 of the Limitation Act in any view of the
matter. Sections 12 and 13 of the Bombay Rent Act
co-exist and must be harmonized to effect the
purpose and intent of the legislature for the purpose
of eviction of the tenant. In that view of the matter
Article 113 of the Limitation Act has no scope of
application. Large number of authorities were cited.
In the view we have taken on the construction of the
provisions of Articles 67 and 66 of the Limitation
Act and the nature of the cause of action in this case
in the light of Sections 12 and 13 of the Bombay
Rent Act, we are of the opinion that the period of
limitation in this case would be 12 years. There is
no dispute that if the period of limitation be 12
years, the suit was not barred."
32. The said decision has no application in the facts and circumstances of
the present case as there is nothing to show that after the expiry of period
envisaged in the lease and despite the fact that the respondent itself had been
paying/tendering monthly rent, there had been final determination of the
tenancy pursuant whereto the respondent was required to hand over the
vacant possession to the landlord. Nothing has been brought on record to
show that the landlord has served any notice directing the tenant to handover
vacant possession upon valid termination of the lease.
33. In Devasahayam (Dead) By Lrs. v. P. Savithramma and Others
[(2005) 7 SCC 653], whereto our attention has again been drawn, this Court
came to the conclusion that the civil court had no jurisdiction to try the suit
covered by the rent control legislation. No such contention had, however,
been raised. The question which as to whether the Civil Court would have
jurisdiction to determine a matter must fall for consideration of the trial
court. An issue in that regard should have been framed. In this case, the
respondents have raised a plea of title in itself, the question in regard to the
jurisdiction of the Civil Court has not been raised, presumably in view of the
fact, that ultimately the civil court was bound to determine the question
whether the defendant/respondent No. 3 made an oral gift or not being a
complicated question, could not have gone into in a suit under the Rent
Control Act. In any event, such a question having not been raised, we are of
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the opinion that the same should not be permitted to be raised before us for
the first time.
34. The plea in regard to lack of jurisdiction of the Civil Court has been
raised for the first time in the Written Submissions filed by the respondents
and not even by the learned counsel while making oral submission.
35. In Sohan Singh and Ors. v. General Manager, Ordnance Factory,
Khamaria, Jablapur and Ors. [AIR 1981 SC 1862], this Court noted the
following in this regard :
"We think that the view taken by the High Court on the
facts of this case is not correct because the jurisdiction of
the labour court was not challenged by the respondents in
that court."
36. In Nagubai Ammal and Others v. B. Shama Rao and Others [AIR
1956 SC 593], this Court made a distinction between a proceeding which is
collusive and one which is fraudulent. Respondents have never questioned
the validity of the Award and the decree. No issue was framed in that
behalf. It is not a case where the suit can be dismissed on the ground of
there being a collusive proceeding between defendant No. 3 and plaintiff.
37. For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. No costs.