# Plaintiff v. Smt. Rukmini Devi and others

- **Citation:** (2007) 3 ILRA 858
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-07
- **Case number:** Second Appeal No.492 of 1980
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-smt-rukmini-devi-and-others-41101
- **Pages:** 11

## Headnote

Code of Civil Procedure-Section 100Second Appeal-Suit for possession-on
payment of Rs.2205/-towards cost of
Construction-defendant
denied
and
pleaded as co-owner and not as tenantalternatively if the cost of construction
of Rs.6505 and paid-dismissal of suit in
1940-can
defendant
claim
adverse
possession-'No'-plea of Res-judicata also
denied-suit
decreed
on
payment
of
Rs.6505 with 12% simple interest.

Held: Para 21

The-litigation initiated in the year 1927
has not ended as yet. Taking into
account the admissions made by the
defendant first set in Original Suit No.1
of 1949 decided on 11th August, 1952,
the Court find that a sum of Rs.6505 and
7 ana 6 paisa with simple interest at the
rate of 12% per annum would be the fair
and
reasonable
cost
with
interest
compensating the capital expenses. The
Court is not taking into consideration
any improvement as no such plea was
taken by the defendant nor any evidence
was led by the defendant to prove the
same. The constructions must be old but
then no such argument was advanced by
learned counsel for the appellant to
reduce the cost of constructions claimed
by the defendant-respondent.
Case law discussed:
1977 Alld.-469, 1995 (4) SCC-496, 2004 (2)
AWC-1685, 1977 AIR (All.) 458, 2004 (2)
JCLR-755, 1993 PCJ (SC)-1198, 1997 ACJ
(SC), 1990 (4) SCC-706, 1994 (6) SCC-591,
2006 (7) SCC-570

## Text

858 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2007

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Second Appeal No.492 of 1980

Brij Gopal Binnani (since deceased

...Plaintiff-Appellant
Versus
Smt. Rukmini Devi and others

 ...Defendants-Respondents

Counsel for the Appellant:
Sri Yasharth
Sri Pankaj Lal
Sri Gyan Prakash

Counsel for the Respondents:
Sri V.K.S. Chaudhary, Sri Ranjeet Saxena,
Sri M.K. Gupta, Sri V.K. Goel, Sri Kundan
Rai, Sri Deepak Chaudhary, Sri Ajai Kumar
Singh, Sri Deepak Singh

Code of Civil Procedure-Section 100Second Appeal-Suit for possession-on
payment of Rs.2205/-towards cost of
Construction-defendant
denied
and
pleaded as co-owner and not as tenantalternatively if the cost of construction
of Rs.6505 and paid-dismissal of suit in
1940-can
defendant
claim
adverse
possession-'No'-plea of Res-judicata also
denied-suit
decreed
on
payment
of
Rs.6505 with 12% simple interest.

Held: Para 21

The-litigation initiated in the year 1927
has not ended as yet. Taking into
account the admissions made by the
defendant first set in Original Suit No.1
of 1949 decided on 11th August, 1952,
the Court find that a sum of Rs.6505 and
7 ana 6 paisa with simple interest at the
rate of 12% per annum would be the fair
and
reasonable
cost
with
interest
compensating the capital expenses. The
Court is not taking into consideration
any improvement as no such plea was
taken by the defendant nor any evidence
was led by the defendant to prove the
same. The constructions must be old but
then no such argument was advanced by
learned counsel for the appellant to
reduce the cost of constructions claimed
by the defendant-respondent.
Case law discussed:
1977 Alld.-469, 1995 (4) SCC-496, 2004 (2)
AWC-1685, 1977 AIR (All.) 458, 2004 (2)
JCLR-755, 1993 PCJ (SC)-1198, 1997 ACJ
(SC), 1990 (4) SCC-706, 1994 (6) SCC-591,
2006 (7) SCC-570

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The order dated 4.8.2006
dismissing the second appeal for want of
prosecution was recalled on 17.4.2007.
On
the same day the substitution
application of Shri Satyendra son of Shri
Sri Gopal Binnani, appellant No.l/l was
allowed, and Shri Babu Gopal Binnani
son of Late Shri Brij Gopal Binnani
respondent No.4 was transposed as
appellant on the ground, that he had
succeeded to the estate of his father. The
parties were heard and the judgment was
reserved.

2. This second appeal arises out of
judgment and decree dated 31.7.1978
decreeing the suit filed by late Shri Brij
Gopal Binnani, the plaintiff-appellant for
possession over the property in suit on
payment of Rs.2054.13 towards costs of
constructions or such amount as the Court
determines. The Civil Appeal No.354 of
1978 filed by Smt. Rukmini Devi &
others, the defendants against the decree
was allowed by the District Judge,
Azamgarh
on
17.10.1979
with
the
findings that the defendant 1st set
appellants have perfected their rights by
adverse possession.
3 All] Brij Gopal Binnani V. Smt. Rukmini Devi and others
859
3. Shri Brij Gopal Binnani-the
plaintiff appellant filed the suit for
possession with the pleadings that the
land in suit adjoins the Dharmshala and
was acquired on lease by late Shri Gopi
Krishna as Karta of the family from one
Shri Mahadev Prasad. The deed of
agreement was executed on 6.9.1902.
Late Shri Brij Gopal Binnani and Late
Shri Babu Gopal Binnani are descendants
of
Late
Shri
Gopi
Krishna.
The
Dharmshala was constructed by Late Shri
Gopi Krishna in the western portion of the
land. He made some other constructions
on the remaining land. Smt. Rukmini
Devi and others, the defendant 1st set and
respondents entered into possession of the
'Ahata and Bara' as tenants. In 1927 a Suit
No.1102 was filed by Late Shri Brij
Gopal Binnani against the defendants for
ejectment in which. The predecessor of
Smt. Rukmini Devi denied that they were
tenants and asserted that they were in
possession of the land with the permission
of Late Shri Gopi Krishna, with the
condition that whenever Late Shri Gopi
Krishna
wanted
to
take
back
the
possession, he would pay the licensee the
amount, which has been spent on the
constructions. The suit was withdrawn
Shri Suraj Karan Binnani-defendant No.2
filed another suit No.1 of 1949 against
Rukmini Devi and others for possession
and for arrears of rent, in which it was
held that Smt. Rukmini Devi & others
were merely licencees. This suit was
dismissed. The appeal was dismissed by
the High Court.

4. In the written statement it was
stated that the land in suit adjoining
Dharmshala, was a waqf (dedicated)
property. Late Shri Gopi Krishna was
Mutawalli and Manager of Dharmshala
and after his death the plaintiff became
the Mutawal1i and Manager. There was a
family settlement, by which both Shri Brij
Gopal Binnani and Shri Babu Gopal
Binnani
became
Mutawallis
and
Managers. In the alternative it was
pleaded that if the property is not found to
be the Waqf property, the respondents
were joint owners of it.

5. Shri Gopal Binnani, the plaintiff
admitted
that
the
Dharmshala
was
constructed by Late Shri Gopi Krishna
and that defendants had also made
constructions as licencee. The filing of the
suit in 1927 and 1949 was also admitted.
The parties to the suit then joined issues
on the question whether the property in
suit was waqf property dedicated to 'Shri
Laxminarain Ji Shankar Ji' and if so
whether the suit could only be filed in the
name or the deity and not by the
Mutawalli in their personal capacity:
whether the constructions were made after
getting permission, and in view of Section
60 of the Easement Act the license could
no longer be revoked; the suit filed in
1927 was withdrawn with liberty to file a
fresh suit on the condition that respondent
No.1 would pay the costs, which were not
paid and thus suit is not maintainable. The
defendants then contended that they have
perfected their title by adverse possession,
and that the suit could be filed within
three years of October 20th, 1949 when in
the proceedings under Section 145 CrPC,
the defendants were found to be in
possession. The suit was barred by Art. 47
of the Limitation Act.

6. The Trial Court decreed the suit
with the finding that the Dharmshala was
never dedicated to Shri Laxminarain Ji
Shankar Ji. The license granted to the
defendant could be revoked and that suit
was not barred by limitation. The
860 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
appellate Court relied upon Ex.A-20, a
registered deed of agreement dated
10.5.1913, amongst the members of the
family of Shri Gopi Kishan. In para 7 of
this document it is mentioned that the
Dharmshala and some other property is
waqf in the name of Shri Thakurji, and
that whatever property, if any, belongs to
Dharmshala is also waqf property, and
that waqf is in favour of Shri Tahkurji,
which is an idol and jurisdic person. The
Ex.12 is an award of an Arbitrator given
in Suit No.32 1945 dated 21st August,
1952. In this award it is mentioned that
the property belongs to Thakurji. The
appellate Court thus set aside the findings
of the Trial Court that the property was
owned by the plaintiff, and found that
Thakurji, the deity was the owner. The
suit as such should have been filed by the
deity, and not by the plaintiff in individual
capacity. On the issue whether the suit
could be filed by one of the co-sharers
after revoking the license, the appellate
Court relied upon Hafiz Ali Khan Vs.
Mohammad Ishaq, AIR 1977 Alld. 469
in which it was held that license should be
revoked by all the co-sharers but that
anyone of them can revoke it if he acted
for himself, and for all others.

7. The appellate Court found that
though the notice was given only on
behalf of Shri Brij Gopal Binnani, the
institution
of
the
suit
amounts
to
revocation of license and that the suit was
for the benefit of both the co-sharers. On
the plea of limitation, after the order in
1942 under Section 145 CrPC, the
appellate Court observed that proceedings
under Section 145 CrPC were in favour of
Durga Prasad, predecessor in interest of
the defendant. These proceedings were in
respect of property situate in north of the
Dharmshala whereas suit property is
situate in north-east of the Dharmshala.
The suit in respect of entire property as
such cannot be held to be barred by
Section 47 of the Limitation Act. It was
then held that dismissal of the earlier suit
could not have started the period of
adverse possession as in earlier suit the
occupants were treated as tenants. The
appellate Court allowed the appeal with
findings that license has come to an end.
The license was revoked with the filing of
the suit. It was firstly revoked in 1927 by
filing a suit and thereafter in 1949. There
is no license in favour of Durga Prasad.
The possession of Durga Prasad from that
date must necessarily be adverse to the
interest of the plaintiff-respondents, and
consequently the appellate Court found
that the defendant-appellant had perfected
their right of adverse possession much
before the suit was instituted.

8. Shri V.K. Gael learned counsel
for the plaintiff-appellant submits that
once license was admitted, no further
defence with regard to ownership could
be accepted. The appellate Court has not
considered the documents relied upon by
the trial Court. He submits that the
licensee cannot claim adverse possession.
Shri Goel has relied upon the judgment in
(1) Ramsewak and ors. V s. Smt. Raj
Pati & Ors. (2004) 2 AWC 1685 that the
findings recorded without considering the
relevant evidence have to be treated as
perverse; (2) Ram Prasad Pandey Vs.
Jagmohan Lal Shukla. (1977) AIR (All)
458 that the licensee cannot defend the
suit on the ground that some one else is
owner of the property: (3) Chandra Pal
& Ors. Vs. Ram Lal. (2004) 2 JCLR
755 (All) that when the defendant was in
permissive possession, the suit would not
be barred by limitation; (4) State of
Punjab Vs. Brig Sukhjit Singh, (1993)
3 All] Brij Gopal Binnani V. Smt. Rukmini Devi and others
861
ACJ (SC) 1198 for the proposition that
possession of the licensee, however, long
remains permissive possession and can
never be treated as adverse possession and
(5)
A.S.
Vidyasagar
Vs.
S.
Karunanandam, (1997) ACJ (SC) 1491
for the same proposition.

9. Shri M.K. Gupta on the other
hand submits that the license was firstly
revoked by filing a suit in 1927 and then
in 1949 and thereafter since no suit was
filed for ejectment, the limitation would
be confined to 12 years under Section 47
of the Limitation Act and that the suit was
barred by time. He has further relied upon
the finding of the appellate Court that the
property was endowed property and suit
was not maintainable at the instance of
the plaintiff alone.

The second appeal was admitted on
19.3.1980 without framing any question
of law.

Having heard learned counsel for the
parties, the following substantial question
of law arise for consideration in this
second appeal:-

1. Whether the plaintiff could have
filed the suit in an individual
capacity in respect of the property,
which was held to be a property
dedicated to the Idol?
2. Whether the license was revoked in
1927, and in any case in 1947, by
filing a suit for eviction and that the
limitation of perfecting ownership
rights by adverse possession began
from the date when the suits were
dismissed?

10. The suit giving rise to this
second appeal was filed by Late Shri Brij
Gopal Binnani both in individual capacity
and Mutawalli of Dharmshala Vaka
Mauja Palhani Muttasil Railway Station,
Azamgarh with allegation that Babu Gopi
Kishan had acquired the property from
Shri Mahadeo Prasad Athavaria by
registered document dated 6th September,
1902. He constructed Dharmshala on the
western portion of the land and in the
remaining
land
he
made
some
constructions on the eastern and northern
portion, which was in the shape of
courtyard of Dharmshala. Late Durga
Prasad occupied the land as tenant. In Suit
No.110 of 1927 for his eviction Shri
Durga Prasad denied the tenancy and
further license with the condition that
whenever Babu Gopi Kishan require the
land, he would vacate the same after
receiving the cost of construction made by
him. The suit was withdrawn. Thereafter
Babu Suraj Karan Binnani, the grand son
of Babu Gopi Kishan filed Suit No.1 of
1949 for eviction and arrears of rent in
which Shri Durga Prasad again denied his
tenancy and stated that he is licensee and
had made his own constructions. This suit
was dismissed on the ground that the
plaintiff had not claimed possession over
the constructions. The appeal against the
judgment was dismissed by the High
Court on 3.9.1962. The findings that the
defendant late Durga Prasad was licensee
and as condition of license he could be
evicted after paying cost of construction
made by him have thus become final and
operate as resjudicata between them. In
the present suit the petitioner prayed for
decree for eviction on the building and
land and Bara after payment of Rs.2064
and 13 Ana and 9 Pai or whatever the cost
of construction is determined by the
Court. By an amendment para 7A and 7B
were added to the effect that the property
in dispute is Dharmshala of which Late
862 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Shri Gopi Kishan was founder. There was
a settlement in the family by arbitration
by which the property fell to the share of
plaintiff. In case the property is in dispute
or found as non waqf property as was
decided in Suit No. 1 of 1949 the plaintiff
is along with defendant No.3 is the owner
of the property in dispute.

11. The defendant did not file any
deed of endowment nor the date of which
the properties were dedicated to Shri
Laxmi Narain Ji and Shri Shanker Ji has
been given. The mere fact that land
pertains to Dharmshala could not be a
ground to hold the property to be
dedicated to Shri Laxmi Narain Ji and
Shri Shanker .Ii. The existence of
Dharmshala does not prove endowment.
There has to be a dedication to the deity
proved by evidence. The Trial Court and
the Appellate Court rightly found that the
Dharmshala and the property in dispute
were not dedicated to Shri Laxmi Narain
Ji and Shri Shanker Ji and that late Shri
Brij Gopal Binnani could file suit for
eviction of defendant Nos.1 and 2.

12. The defendant Nos.1 and 2 in the
suit were admitted to the land as licensee
with conditions attached to their license.
The suit filed in the year 1927 for eviction
was withdrawn and that the suit filed in
the year 1949 was dismissed on the
ground that the plaintiff did not offer to
pay the cost of constructions and was thus
not entitled to decree of possession. The
Trial Court found that once the possession
was permissive, the defendant will not
perfect any right by adverse possession
and were entitled to a decree on payment
of Rs.2064 and 13 anas 9 pai, which was
cost of construction. This amount was
worked out on the basis of demand by the
defendant in the written statement filed in
Suit No.110 of 1927 in which it has
alleged that he has spent a sum of
Rs.2064 only. His demand of Rs.50,000/-
for cost of construct ion was not found to
be justified. The first appellate court
allowed the Civil Appeal No.354 of 1978
with the findings that late Shri Gopal Das
Binnani was not the only co-sharer and
could not have given notice for revocation
of license. The proceedings under Section
145 CrPC were in respect of the property
situate in the north of Dharmshala
whereas the suit property is situate in
north-east of the Dharmshala and thus the
suit in respect of entire property is barred
by Section 47 of the Limitation Act. The
license had come to an end on its
revocation as made in the suit filed in the
year 1927 and thereafter in 1949 and after
which there was no licence in favour of
Shri Durga Prasad and that his possession,
thereafter, was adverse to the plaintiffrespondents.
The
defendants
had
perfected
their
rights
by
adverse
possession much before the suit was
instituted.

13. In order to appreciate the plea
that the defendant Shri Durga Prasad did
not
perfect
his
rights
by
adverse
possession it is necessary to refer to the
previous litigation between the parties.
The Suit No.110 filed in the year 1927
was withdrawn. In the second suit namely
Original Suit No.1 of 1949 filed in the
Court of Addl. Civil Judge, Azamgarh the
plaintiff alleged that the defendant was
tenant at the rate of Rs.60 per month. The
defendant first set took up the plea that
the suit property was endowed property of
the family of the plaintiff and the
defendant second set forming a joint
Hindu family was Mutawalli of the suit
property and that the suit filed by the
defendant second set in the year 1927 was
3 All] Brij Gopal Binnani V. Smt. Rukmini Devi and others
863
dismissed as withdrawn. The defendant
first set pleaded that the house and Bara
has been raised at the cost of Rs.6505 and
7 ana 6 paisa. The constructions were
raised without any objections from the
plaintiff. It was also alleged that if
assuming that plaint allegations are
correct the plaintiffs were not entitled to
possession without payment of Rs.6505
and 7 ana 6 paisa with interest at 12% per
annum. The Addl. Civil Judge, Azamgarh
in his judgment dated 11th August, 1952
while dismissing the suit with costs held
that the suit property was not endowed
property. The adjacent constructions of
Dharmshala and some other properties in
suit
are
endowed
property.
The
bhumidhari land in village Birauli is
dedicated for the upkeep of the endowed
property. The suit was filed by Babu Suraj
Karan Binnani after attaining majority
within limitation and that he had right to
sue. It was then held that the property in
suit was not let out and there was no
tenancy as alleged of the suit property on
the rent of Rs.60 per month. The Court
found that the truth appeared from the
defendant evidence, who firstly alleged
that he is owner of the property and then
in his statement Durga Prasad stated that
he had raised constructions with the
permission of Late Shri Gopi Krishan, the
ancestor
of
the
plaintiff
with
the
stipulation that if he leaves the house he
will be paid market value of the house. It
will be relevant to quote the findings with
regard to raising of construction and the
cost of construction, as well as plea taken
in the suit that the license has become
irrevocable under Section 60 of the
Easement Act. The Addl. Civil Judge,
Azamgarh in his judgment dated 11th
August, 1963 held as follows:-

"In his statement Durga Prasad
stated the house in suit to have been
raised by him with the permission of Gopi
Kishan an ancestor of the plaintiff. He
further added that the house and the
ahata in suit were raised by him with the
permission of Gopi Kishan with a
stipulation that if he left the house in suit
the same could be had on payment of the
then market value of the house and Bara
in suit. Even this to me appears to be an
improvement. The contesting defendant in
the earlier case in 1927 had set up this
theory in a modified from. He therein had
pleaded the house in suit to have been
raised with the permission of Gopi Kishan
with the stipulation that whenever he liked
to have the house in suit it would be
vacated by Durga Prasad and he would
get only the then price of the house in suit.
Then the choice for eviction lay with Gopi
Kishan or his descendants. Now it lay up
on the sweet will of Durga Prasad. This
improvement has been actuated by after
thought and perhaps on better legal
advice............"..

"I feel satisfied that the house and
Bara in suit were raised by the contesting
defendant with the permission of Babu
Gopi Kishan and it is in his occupation
since then on that basis, the same was
never let out to the contesting defendant
by the plaintiffs' father........... "

"According to the allegations in the
WS of the case in 1927 the plaintiffs'
ancestors could have the house vacated at
his choice on payment of the amount
spent
in
these
constructions.
The
ownership of the house in suit would
hence pass to the plaintiff only after he
had paid the amount spent by the
defendant in constructing the house and
Ahata in suit. By no stretch of imagination
864 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the plaintiff could call himself owner of
the house in suit before that. The
contesting defendant wants to deprive the
plaintiff of that right as well. He says that
the choice to vacate lay with him only
then if the plaintiff desires to have the
house in suit the plaintiff could get the
same on payment of the market price. I
have already observed above that this
plea cannot be countenanced. In the same
way the defendants' contention that the
license had become irrevocable under
Section 60 of the Easement Act is devoid
of merit. The present case does not fall
within the ambit of Section 60 of the
Easement Act. The license from the very
outset was hedged with a contract. The
contesting
defendant
was
given
permission to raise the construction over
the site in suit with stipulation and
limitation that whenever the licensee
wanted to take possession of the site and
the constructions thereon he would do so
on payment of the market value of the
constructions. The constructions in suit
were thus raised knowingfull with the
terms and the limitation. Section 60 of
the Easement Act does not at all apply to
such cases."

The suit was then dismissed on the
findings as follows:-

"The learned counsel for the plaintiff
contends that inasmuch as the contesting
defendant had admitted the plaintiff to be
the owner of the site in suit and had
impliedly accepted the position that he
was liable to ejectment on payment of the
value of the house so the value he
determines and the plaintiff be given
possession on payment of the amount
found due. In my opinion the plaintiff
cannot
adopt
such
a
course.
The
plaintiff's case for possession is not based
on any such allegation. He sought
possession over the house in suit alleging
himself to be the absolute owner of the
house. He went on to say that the same
had been let out to the defendant but the
defendant was not willing to vacate hence
the suit for possession. He sought an
accounting as well but that was in reply to
defendant's
contention
that
he
had
invested
money
for
repair
and
constructions. The case for the plaintiff
was not substantiated on those allegations
and has rather been found to be false.
Possession is now sought on an entirely
different ground. It is sought in the light
of the defence version. I think in law the
plaintiff cannot change his case and seek
relief on an entire different ground upon
which he had not based his case. I,
therefore, held that the plaintiff is not
even entitled to claim any accounts in the
present case. ."

14. Babu Suraj Karan Binnani filed
First Appeal No.392 of 1952 in the High
Court at Allahabad. The short judgment
given by Hon'ble Mr. Justice Mithan Lal
is relevant and is reproduced as follows:-

"In this first appeal filed by the
plaintiff
Sri
Yashodanandan
learned
counsel for the appel1ant has withdrawn
all the grounds of appeal and has pressed
his appeal only on the question of
adjustment of the equities of the parties.
His argument is that he accepts the
finding of the Court below that the
constructions on the land in dispute had
been made by the defendant 1st set with
the consent of the plaintiff's father and
has those defendants had claimed a sum
of Rs.6,505/7/6 as the value of the
constructions the plaintiff's suit for
possession may be decreed on payment of
that amount.
3 All] Brij Gopal Binnani V. Smt. Rukmini Devi and others
865
In this case the respondents are
unrepresented. The equities between the
parties cannot be adjusted in this first
appeal because there is no sufficient
material to adjust the same, for example it
is not clear when the constructions were
made. There is also no finding of the
court below nor anything on the record to
show whether the defendants were or
were not entitled to any interest of this
amount and whether the plaintiff was or
was not entitled to any rent for the ground
on which the constructions were made. It
is also not clear from the finding as to on
what date value of the constructions was
to be assessed, whether it was to be
assessed on the date the possession was to
be given to the plaintiff, or on the date the
constructions were made. There are a
number of difficulties in adjusting the
equities and consequently there being not
sufficient material on the record for the
purpose of adjustment of enquiries the
prayer of the learned counsel for the
appellant cannot be accepted. Since other
grounds of appeal are not pressed the
appeal is dismissed but no order is made
as to costs."

15. In Achal Reddy Vs. Rama
Krishna Reddiar. (l990) 4 SCC 706 the
Supreme Court on acknowledgment and
recognition of the title of the vendor
excludes the theory of adverse possession.
It was held that if a person is in actual
possession and has right to possess under
title involving due recognition of the
owners title, his possession will not be
recorded as adverse in law even though he
claims under another title having regard to
the well recognised policy of law that
possession is never considered adverse, if
it is referable to lawful title. In the
conception of adverse possession there is
an essential and basic difference between
a case in which the other party is to be in
possession of property by an outright
transfer. Both parties stipulating for total
divestiture of all the rights of transferor in
the property and in cases in which there is
mere executory agreement of transfer
both parties contemplating a deed of
transfer to be executed at a later point of
time
transferee
is
stopped
from
contending that his possession while the
contract remained executory in stage, was
in his own right and adversity against the
transferor. Adverse possession implies
that it commence in wrong and is
maintained against right. When the
commencement
and
continuance
of
possession is legal and proper, referable
to a contract, it cannot be adverse.

In Thakur Kishan Singh Vs.
Arvind Kumar, (1994) 6 SCC 591 in a
suit for possession of a land on which a
brick kiln was permitted to be set up,
lease deed was alleged to be void under
Section (6) of the Madhya Pradesh
Abolition of Proprietary Rights Act, 1950
and in the alternative plea of adverse
possession was raised. The suit was
dismissed. In appeal the order was set
aside and the suit was decreed. The High
Court did not interfere. The Supreme
Court while dismissing the appeal held
that the appellant had entered into
possession over the land in dispute under
the license. The possession thus initially
being permissive, burden was heavy on
the appellant to establish that it became
adverse. The possession of a co-owner or
of a license or of an agent or a permissive
possession to become adverse must be
established by cogent and convincing
evidence to show hostile animus and
possession adverse to the knowledge of
the real owner. Mere possession for
length of time does not result in
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
converting permissible possession into
adverse possession. The appeal was
consequently, dismissed.
In Vidya Devi Vs. Prem Prakash &
Ors.. (1995) 4 SCC 496 the Supreme
Court held in para 22 and 23 as follows:-

"22. Adverse possession" means
hostile possession, that is, a possession
which is expressly in denial of the title of
the true owner. (See: Gaya Parasad
Dikshit Vs. (Dr) Nirmal Chander, (1984)
2 SCC 286). The denial of title of the true
owner is a sign of adverse possession. In
Ejas Ali Qidwai Vs. Special Manager,
Court of Wards, AIR 1935 PC 53 it was
observed:-
"The principle of law is firmly
established that a person, who bases his
title on adverse possession, must show by
clear and unequivocal evidence that his
possession was hostile to the real owner
and amounted to a denial of his title to the
property claimed."

23. Dr Markby in his treatise
Elements of Law (2nd Edn.) has observed
that possession "to be adverse must be
possession by a person who does not
acknowledge the other's rights but denies
them. (See also: Munnalal Vs. Kashibai,
AIR 1947 PC 15).

In T. Anjanappa and ors. Vs.
Somalingappa & Anr., (2006) 7 SCC
570 the Supreme Court held as under:-

"Adverse possession is that form of
possession or occupancy of land which is
inconsistent with the title of any person to
whom the land rightfully belongs and
tends to extinguish that person's title,
which provides that no person shall make
an entry or distress, or bring an action to
recover any land or rent, but within
twelve years next after the time when the
right first accrued, and does away with
the doctrine of adverse possession, except
in the cases provided for by Section 15.
Possession is not held to be adverse if it
can be referred to a lawful title.
According to Pollock, "In common
speech a man is said to be in possession
of anything of which he has the apparent
control or from the use of which he has
the apparent powers of excluding others".
It is the basic principle of law of
adverse possession that (a) it is the
temporary and abnormal separation of
the property from the title of it when a
man holds property innocently against all
the world but wrongfully against the true
owner; (b) it is possession inconsistent
with the title of the true owner.

In Halsbury's Laws of England, 1953
Edn., Vol.1 it has been stated as follows:-

"At the determination of the statutory
period limited to any person for making
an entry or bringing an action, the right
or title of such person to the land, rent or
advowson, for the recovery of which such
entry or action might have been made or
brought
within
such
period
is
extinguished
and
such
title
cannot
afterwards be reviewed either by re-entry
or by subsequent acknowledgment. The
operation of the statute is merely
negative, it extinguishes the right and title
of the dispossessed owner and leaves the
occupant with a title gained by the fact of
possession and resting on the infirmity of
the right of the others to eject him."
It is well-recognised proposition in
law that mere possession however long
does not necessarily mean that it is
adverse to the true owner. Adverse
possession really means the hostile
possession which is expressly or impliedly
3 All] Brij Gopal Binnani V. Smt. Rukmini Devi and others
867
in denial of title of the true owner and in
order to constitute adverse possession the
possession proved must be adequate in
continuity. in publicity and in extent so as
to show that it is adverse to the true
owner. The classical requirements of
acquisition of title by adverse possession
are that such possession in denial of the
true owner's title must be peaceful, open
and continuous. The possession must be
open and hostile enough to be capable of
being known by the parties interested in
the property, though it is not necessary
that there should be evidence of the
adverse possessor actually informing the
real owner of the former's hostile action."

16. The appellate Court fell in patent
error in holding that filing of the suit in
1927 and thereafter in 1949 amounted to
revocation of license and thereafter there
was no license in favour of Durga Prasad
and his possession must necessarily be
adverse to the interest of the respondents.
The appellate Court further erred in
holding that appellant perfected their right
by adverse possession much before the
institution of the suit in 1974.

17. The suit filed in the year 1927
was withdrawn and in the suit filed in the
year 1949 it was clearly found on the
admission of Shri Durga Prasad that he
entered into possession with permission
of late Babu Gopi Kishan, the grand uncle
of the appellant. Once it was established
that the property was not endowed
property and that the suit property
adjacent to Dharmshala was not dedicated
to Shri Laxmi Narain Ji Shri Shanker Ji,
and that the constructions were raised
with the permission, and further that there
was contract hedged in condition that
whenever owner would require, licensee
would vacate the property after receiving
the cost of constructions, the decree of
possession could not be denied on the
ground that Shri Durga Prasad or his heirs
have perfected their rights by adverse
possession as no suit was filed within the
year of 12 years of the dismissal of the
second suit. The findings recorded in the
suit filed in 1949 in which the predecessor
of both the appellants and respondents
were parties have become final and will
operate as resjudicata between the persons
claiming through them. The suit of 1949
was not dismissed on the ground that Shri
Durga Prasad has perfected his right by
adverse possession. The possession of
Shri Durga Prasad was not inconsistent
with the title of true owner and his long
possession did not necessary mean that it
was adverse to the plaintiff or his
predecessors. The possession of Shri
Durga Prasad and his heirs was not denial
of the title of true owner nor did true
owner sit quiet and was peaceful with his
possession. The suit filed in the year 1927
was withdrawn on the ground that the
possession of construction was not
claimed in the suit and that the suit filed
in 1949 was dismissed on the ground that
the plaintiffs claim was inconsistent with
the relief's claimed in the suit. The first
appeal was dismissed as equities could
not be adjusted unless the defendants
were served. The judgment and decree as
such in the suit of 1927 and 1949 did not
mature the title nor started the adverse
possession of Shri Durga Prasad or his
heirs, which was hostile and bore animus
with the plaintiff's title. The findings of
the appellate Court that defendants
matured the title by adverse possession
cannot be sustained. The substantial
question of law is decided in favour of the
appellant.
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
18. This again leaves the Court with
a question about the reasonable cost of
constructions, which are required to be
paid to the defendant-respondent to claim
possession
over
the
land
and
the
constructions. In the judgment dated 11th
August 1952 the Addl. Civil Judge,
Azamgarh in Suit No.1 of 1949 found an
admission on the part of Shri Durga
Prasad-the defendant that he had raised
constructions of house and Bara at a cost
of Rs.6505 and 7 anas 6 paisa and this
was the amount offered by learned
counsel for the appellant to the defendantrespondent in First Appeal No.394 of
1952. The High Court at that stage did not
comment upon the adequacy of the officer
as the respondents were not represented
and there was nothing to show that the
defendants were entitle get any interest on
the amount.

19. In this suit the plaintiff claimed
the defendant to be licensee and has
prayed for decree of eviction on payment
of Rs.2064·and 13 ana 9 pai or any
amount, which the Court may deem fit
after accounting.

20. By registered notice dated
1.3.1971 the license was revoked and that
under
the
contract
the
defendantrespondents are entitled to cost of
construction
for
eviction
from
the
premises.

21. The-litigation initiated in the
year 1927 has not ended as yet. Taking
into account the admissions made by the
defendant first set in Original Suit No.1 of
1949 decided on 11th August, 1952, the
Court find that a sum of Rs.6505 and 7
ana 6 paisa with simple interest at the rate
of 12% per annum would be the fair and
reasonable
cost
with
interest
compensating the capital expenses. The
Court is not taking into consideration any
improvement as no such plea was taken
by the defendant nor any evidence was
led by the defendant to prove the same.
The constructions must be old but then no
such argument was advanced by learned
counsel for the appellant to reduce the
cost of constructions claimed by the
defendant-respondent.

22.

The
second
appeal
is
consequently allowed. The judgment and
decree of the District Judge, Azamgarh
dated 17.10.1979 is set aside and the
judgment and decree dated 31.7.1978
passed in Suit No.15 of 1974 is restored
with modification that the defendant first
set shall vacate the property in dispute
after the plaintiff-appellant deposits in
trial Court a sum of Rs.6506 with 12%
simple interest per annum, with effect
from 11th August 1952 to the benefit of
the defendant-respondent and on payment
of the Court fees on Rs.6506/- with 12%
simple interest per annum in Court
calculating the same upto the date of
filing of the suit.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.48622 of 2004

Akhilesh Kumar Verma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.S. Pandey