Full Judgment Text
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PETITIONER:
RAI SAHIB DR. GURDITTAMAL KAPUR
Vs.
RESPONDENT:
MAHANT AMAR DAS CHELA MAHANT RAM SARAN AND ORS.
DATE OF JUDGMENT:
19/03/1965
BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
WANCHOO, K.N.
SIKRI, S.M.
CITATION:
1965 AIR 1966 1965 SCR (3) 433
ACT:
Adverse possession-Doubtful whether Akhara, or its Mahant
was occupancy tenant-Forfeiture of tenancy-Right of Mahant’s
successor to sue for possession.
HEADNOTE:
The appellant was the owner of the suit land. Alleging that
the 2nd respondent, who was the Mahant of an Akhara, was the
occupancy tenant and that he had allowed his lessee to dig
it up and rendered it unfit for cultivation, the appellant
evicted the 2nd respondent from a part of the land in 1940,
and from the rest of it in 1943. In 1950, the 2nd
respondent was removed from the office of Mahant, in
proceedings under s. 92, C.P.C., and in 1953, the 1st
respondent was appointed in his place. In 1957 the 1st
respondent filed a suit for possession of the land, alleging
that the Akhara itself was the occupancy tenant. The trial
court decreed the suit and the High court confirmed the
decree.
In the appeal to this Court, the appellant contended that
the suit was barred by limitation.
HELD: Upon the eviction of the 2nd respondent the
occupancy right in the land merged in the right of ownership
of the appellant. Apart from it, the actual physical
possession of the land having been continuously with the
appellant to the exclusion of the occupancy tenant, whether
it was the 1st respondent or the Akhara itself, for a period
of more than 12 years before the institution of the suit,
the occupancy right was extinguished. If the 2nd respondent
represented the Akhara in the eviction proceeding the
decrees therein would bind the 1st respondent as his
successor. If the 2nd respondent did not represent the
Akhara, the possession of the appellant under those decrees
would be adverse to the Akhara. The 2nd respondent as the
Mahant, or the Receiver appointed by the Court In the s. 92
proceedings, could have filed a suit on behalf of the
Akhara, and so, the 1st respondent’s suit after 12 years of
adverse possession by the appellant was barred. (436D-E;
438F-H]
Sudaram Das v. Ram Kirpal, L.R. 77 T.A. 42 and Subbaiya V.
Mustapha, L.R. 50 I.A. 295, applied
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Dwijendra Narain Roy v. Joges Chandra De, A.I.R. 1924 Cal.
600, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 471 of 1963.
Appeal by special leave from the judgment and decree dated
November 9- 1960 of the Punjab High. Court in Regular
Second
Appeal No. 1627 of 1960.
434
S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg,
D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the
appellant.
N.C. Chatterjee and M.S. Gupta, for respondent No. 1.
P.K. Chatterjee and R.H. Dhebar, for respondent No. 11.
The Judgment of the Court was delivered by
Mudholkar, J. The short point which falls to be considered
in this appeal by special leave from a judgment of the High
Court of Punjab dismissing the appellant’s appeal in limine
is whether the suit for possession instituted by the
plaintiff-respondent No. 1 is within time. There are ten
respondents to the appeal out of whom only two, the
plaintiff-respondent No. 1 Amardas and respondent No. 11
Union of India are represented. While the appeal is
contested by the first respondent it is supported by the
Union of India. The facts which are not disputed before us
are briefly these:
The appellant has a share of 1221/143 1/2 in the land in
suit. The occupancy tenant of this land is Akhara Nirbansar
of Sultanwind Gate, Amritsar. The second respondent Ram
Saran Das was Mahant of this Akhara till the year 1950 when
he was removed by virtue of an order made by a civil court
in a suit under s. 92 of the Code of Civil Procedure,
confirmed in appeal on September 11, 1950. On December 29,
1953 respondent No. 1 was appointed as Mahant in place of
respondent No. 2.
On September 15, 1939 the appellant instituted a suit in a
revenue court under ss. 38 and 39 of the Punjab Tenancy Act
(hereafter referred to as the Act) for possession of 141
kanals 8 marlas of land on the ground that he had granted a
sub-lease thereof for the manufacture of bricks to someone
by utilising earth dug up from that land. This, according
to the appellant, was in contravention of the provisions of
s. 39 of the Act and entitled him to eject respondent No. 2.
The Revenue Court held that out of the land sub-leased by
respondent No. 2 only a certain portion was dug up by the
sub-lessee and, therefore, the ejectment of the second
respondent was confined to that area of land which had been
dug up. The date of the ejectment decree was June 3, 1940.
The second respondent preferred an appeal before the
Collector from that decree which was dismissed on October
19, 1940. Shortly thereafter the appellant obtained
possession of the land from which the second respondent was
ordered to be ejected. The lessee of the second respondent,
however, continued to dig up the rest of the land and,
therefore, the appellant instituted a second suit for the
ejectment of the second respondent therefrom. The Assistant
Collector who tried the suit granted a decree to the
appellant in respect of the entire land which was left with
the second respondent after he was dispossessed from a part
of the land leased to him under the earlier decree. In
appeal, however, the Collector modified the order of
435
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ejectment by leaving out of the land 29 kanals and 14
marlas. This order was made on May 31, 1943. Shortly
thereafter the appellant obtained possession of the land
with respect to which the Collector had confirmed the order
of ejectment in the appeal.
On March, 18, 1957 the first respondent instituted a suit
against the appellant and the second respondent. According
to respondent No. 1 Akhara Nirbansar was not bound by the
actions of Mahant Ram Saran Das, the second respondent,
which were tantamount to alienation of the land which,
according to him, were neither for legal necessity nor for
the benefit of the estate. He contended that on the
contrary the action of Ram Saran Das in alienating the land
was unauthorised and illegal and because what he did was not
for legal necessity nor for conferring any benefit on the
estate.
The appellant contested the suit on two main grounds. The
first was that the land in question was never attached to
the Akhara but that Mahant Ram Saran Das, the second
respondent, was its occupancy tenant and that as the sub-
lessee of the land had dug it up and rendered it unfit for
cultivation the appellant as the owner of the land was
entitled to eject respondent No. 2 by forfeiting the lease.
He denied that the land was wakf property and contended that
the occupancy rights existing in favour of the second
respondent were extinguished by the orders of the revenue
courts which still hold good. The second point was that as
the appellant was in continuous possession of the land in
suit as owner in his own right for more than 12 years
preceding the suit openly and to the exclusion of the second
respondent and respondent No. 1 the suit was barred by time.
In his replication respondent No. 1 reiterated that the
property in suit belongs to and is owned by the Akhara
Nirbansar as its occupancy tenant and that the second
respondent was never its Occupancy tenant. Therefore,
according to him, there was no question of extinguishment of
occupancy rights in consequence of the two decrees made by
the revenue courts. He contended that the action of the
second respondent in leasing out the land for digging up
earth was a transfer which, not being for legal necessity
nor for the benefit of the estate, was unauthorised.
According to him the mere fact that the appellant was in
possession of the land for more than 12 years makes no
difference to the suit and that the land being trust
property a suit for its recovery could be brought within 12
years from the date of "death, resignation or removal" of
the manager of such a property. He added that there was no
question of the appellant being in possession in his own
right of the land for more than 12 years. The suit was
decreed by the trial court and its decision was unheld in
appeal by the second Additional District Judge, Amritsar.
The appellant’s second appeal was dismissed in limine by the
High Court.
436
Upon the view which we take on the question of limitation it
has become unnecessary to decide the other points.
The learned Selicitor General who appears for the appellant
relies strongly upon the averments of the appellant in his
written statement that he is occupying the land in suit for
a period of over 12 years from the date of the institution
of the suit as owner in his own right and not as an
occupancy tenant and that even if his occupation is regarded
to be that of an occupancy tenant as alleged by the first
respondent, he has acquired the proprietary rights in this
property by operation of statute. The Solicitor General
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relies on the further averments to the effect that the
original occupancy tenant of the land was the second
respondent and not the Akhara and also contended that
whether it was one or the other made no difference. For,
the tenant’s occupancy rights were extinguished by the
decrees passed in the ejectment suits and consequently there
was no cause of action for the present suit. As pointed out
by the learned Solicitor General, respondent No. 1 in his
replication has not disputed the fact that the appellant was
in possession for more than 12 years before the institution
of the suit and that the only way in which he tried to meet
it was by saying that this fact made no difference to his
case.
It seems to us clear that upon the eviction of respondent
No. 2 from a part of the land in the year 1940 and the rest
of it in the year 1943 the occupancy right with respect to
the land merged in the right of ownership of the appellant.
Apart from that it is clear that the actual physical
possession of the land having been continuously with the
appellant to the exclusion of the occupancy tenant, whether
it was respondent No. 1 or the Akhara itself. for a period
more than 12 years before the institution of the suit that
right was extinguished.
Mr. Gupta, learned counsel for respondent No. 1, however,
sought to meet this position by urging that the second
respondent’s act amounted to an alienation, that it was not
established that it was for legal necessity and that,
therefore, respondent No. 1 as the successor of respondent
No. 2 to the office of Mahantship of the Akhara could
institute a suit within 12 years of his succession to the
office. This succession to his office must, according to
him, be deemed to have occurred when upon the dismissal in
the year 1950 of the appeal preferred by respondent No. 2
against the decision of the trial court removing him from
Mahantship; later the respondent No. 1 was appointed a
Mahant. That was on December 12, 1953. The suit having
been filed within 12 years of that date, so Mr. Gupta
contends, must be held to be within time. The simple answer
to this contention is that what happened in this case was
the forfeiture of the occupancy tenancy by the appellant as
landlord. In no sense can this be regarded as, or even
likened to alienation, which is a voluntary act of the
alienor in favour of the alienee. The appellant is thus not
an alienee from the respondent No. 2 Ram Saran Das.
437
Mr. N. C. Chatterjee who also appeared for the first respon-
dent raised a novel contention. According to him, adverse
possession against the Akhara, which was the real occupancy
tenant, could not commence till respondent No. 1 was
appointed as Mahant because during the interval there was no
person who was competent to institute a suit on behalf of
the Akhara for the possession of the lands of which the
appellant was in adverse possession. In support of the
contention he has placed reliance upon the decision in
Dwijendra Narain Roy v. Joges Chandra De(1). In particular
learned counsel has relied upon the following observations
of Mookerjee J., who delivered the judgment of the Court.
They are:
"The substance of the matter is that time runs
when the cause of action accrues, and a cause
of action accrues, when there is in existence
a person who can sue and another who can be
sued......... The cause of action arises when
and only when the aggrieved party has the
right to apply to the proper tribunals for
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relief. The statute (of limitation) does not
attach to a claim for which there is as yet no
right of action and does not run against a
right for which there is no corresponding
remedy or for which judgment cannot be
obtained. Consequently the true test to
determine when a cause of action has accrued
is to ascertain the time when plaintiff could
first have maintained his action to a
successful result." (P. 609).
He further brought to our notice that these
observations have received the approval of
this Court in F. Lakshmi Reddy v. L. Lakshmi
Reddy(2), at p. 206. In the case which came
up before this Court the facts which are set
out in the head note were as follows:
"V died an infant in 1927 and H, an agnatic
relation filed a suit for the recovery of the
properties belonging to V which were in the
possession of third parties, on the ground
that he was the sole nearest male magnate
entitled to all the properties. During the
pendency of the suit a Receiver was appointed
for the properties in February, 1928. The
suit having been decreed H obtained possession
of the properties from the Receiver on January
20, 1930, and after his death in 1936, his
nephew, the appellant, got into possession as
H’s heir. On October 23, 1941 the respondent
brought the present suit for the recovery of a
onethird share of the properties from the
appellant on the footing that he and his
brother were agnatic relations of V of the
same degree as H, that all the three were
equal co-heirs of V and that H obtained the
decree and got into possession on behalf of
all the co-heirs. The appellant resisted the
suit and contended that the respondent lost
his right by the adverse possession of H and
his successor and that for this purpose not
only the period from
(1) A.I.R. 1924 Cal. 600.
(2) [1957] S.C.R. 195.
438
January 20, 1930 to October 23, 1941 was to be
counted but also the prior period when the
Receiver was in possession of the properties
during the pendency of H’s suit. It was found
that the respondent’s case that H obtained the
decree and got possession from the Receiver on
behalf of the other co-heirs was not true."
The facts of that case were different and it was on these
facts that this Court held that the respondent did not lose
his right by adverse possession. It is in the context of
these facts that the learned Judges cited with approval the
observations of Mookerjee J., which we have set out.
Assuming these observations are sound, it cannot be said in
the case before us that at any point of time there was no
person who was competent to institute a suit on behalf of
the Akhara. Respondent No. 2 was still the Mahant and could
well have instituted a suit on behalf of the Akhara if in
fact there was any cause of action for such a suit.
Further, in the course of the suit the possession was with a
Receiver who had been appointed by the court and was thus
competent in law to institute a suit.
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We may point out that a Mahant of an Akhara represents the
Akhara and has both the right to institute a suit on its
behalf as also the duty to defend one brought against it.
The law on the subject has been stated very clearly at pp.
274 and 275 in Mukherjea’s Hindu Law of Religious and
Charitable Trust, 2nd, ed. It is pointed out that in the
case of an execution sale of debutter property it is not the
date of death of the incumbent of the Mutt but the date of
effective possession as a result of the sale from which the
commencement of the adverse possession of the purchaser is
to be computed for the purposes of art. 144 of the
Limitation Act. This is in fact what the Privy Council has
laid down in Sudarsan Das v. Ram Kirpal (1). A similar view
has been taken by the Privy Council in Subbaiya v.
Mustapha(2). What has been said in this case would also
apply to a case such as the present. Thus if respondent No.
2 could be said to have represented the Akhara in the two
earlier suits, decrees made in them would bind the
respondent No. 1 as he is successor in office of respondent
No. 2. On the other hand if respondent No. 2 did not
represent the Akhara, the possession of the appellant under
the decree passed in these suits would clearly be adverse to
the Akhara upon the view taken in the two decisions of the
Privy Council just referred to. The first respondent’s suit
having been instituted after the appellant has completed
more than 12 years of adverse possession must, therefore be
held to be barred by time. For these reasons disagreeing
with the courts below we set aside the decrees of the courts
below and instead dismiss the suit of respondent No. 1 with
costs in all the courts.
Appeal allowed.
(1) L. R. 77 I.A. 42.
(2) L.R. 50 I.A. 295.
439