# 12 S.C.R. 368 TRIBHUVANSHANKAR v. AMRUTLAL

- **Citation:** [2013] 12 S.C.R. 368
- **Court:** Supreme Court of India
- **Decided:** 2013-11-13
- **Case number:** Civil Appeal No. 10316 of 2013
- **Bench:** Anil R. Dave, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-368-tribhuvanshankar-v-amrutlal-28609
- **Pages:** 29

## Headnote

MADHYA PRADESH ACCOMMODATION CONTROL
ACT, 1961:
Suit for eviction - Defendant denying title of plaintiff over
suit premises and setting up plea of adverse possession -
Finding of trial court that there is no relationship of landlord
and tenant between parties, not assailed - Held: Once a finding
0 was recorded that there was no relationship of landlord and
tenant under the Scheme of the Act, there was no necessity
to enter into an enquiry with regard to the title of the plaintiff
based on the sale deed or the title of the defendant as put
forth by way of assertion of long possession - High Court is
E justified to the extent that no equitable relief could be granted
in a suit instituted under the Act - But, it has committed an
illegality by affirming the judgment and decree passed by trial
court because by such affirmation, defendant becomes owner
of the premises by acquisition of title by prescription and,
therefore, impugned judgment to that extent is vulnerable and
F accordingly the said affirmation is set aside - Judgment of
High Court is affirmed only to the extent that as relationship
of landlord and tenant was not established, defendant was not
liable for eviction under the Act - The issue of right, title and
interest is open - In the circumstances, plaintiff is entitled
G under law to file a fresh suit for title and recovery of
possession and such other reliefs as the law permits and
defendant is entitled to resist the same by putting forth all his
stand and stance including the plea of adverse possession.
H
368
TRIBHUVANSHANKAR v. AMRUTLAL
369
ADVERSE POSSESSION:
Concept of adverse possession - Explained - Limitation
- Time spent in adjudication of suit and appeals - Held: In the
instant oase, the suit was instituted on the basis of purchase
A
-- The relief sought in the plaint was for delivery of possession B
-- It was not a forum that lacked inherent jurisdiction to pass
a decree for delivery of possession -- It showed the intention
of plaintiff to act and to take back the possession -- In the
circumstances, after institution of the suit, the time for
acquiring title by adverse possession has been arrested or
remained in a state of suspension till the entire proceedings C
arising out of suit are terminated - Therefore, appel/antplaintiff is permitted to institute a suit.
The appellant instituted a suit under the M.P.
Accommodation Control Act, 1961 for eviction of the D
respondent from the suit-premises and for mesne profits.
The case of the appellant-plaintiff was that he had
purchased the suit property under a registered sale deed
dated 1.4.1976 and the respondent-defendant was in
possession of the said suit property as a tenant under E
the vendor on a monthly rent of Rs.15/-. The defendant
disputed the right, title and interest of the plaintiff, and
denied the relationship of landlord and tenant. He further
set up a plea of adverse possession. The trial court
dismissed the suit holding that the sale deed relied upon
F
by the plaintiff was without any sale consideration; that
the relationship of landlord and tenant between the
parties had not been established; and that the
respondent had become the owner of the suit
accommodation on the basis of adverse possession. The G
first appellate court allowed the appeal of the plaintiff and
decreed the suit for possession holding that though the
appellant-plaintiff had not been able to prove the
relationship of landlord and tenant, the conclusion
arrived at by the trial court that the sale-deed dated H
370
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A 1.4.1976 due to absence of sale consideration was invalid,
was neither justified nor correct; and that there being no
clinching evidence to establish that the defendant had
perfected his title by adverse possession, the finding
recorded by the trial court on that score was indefensible.
B The second appeal filed by the defendant-respondent
was allowed by the High Court holding that once the
plaintiff had failed to establish the re

## Text

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A
B
c
[2013) 12 S.C.R. 368
TRIBHUVANSHANKAR
v.
AMRUTLAL
(Civil Appeal No. 10316 of 2013)
NOVEMBER 13, 2013
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
MADHYA PRADESH ACCOMMODATION CONTROL
ACT, 1961:
Suit for eviction - Defendant denying title of plaintiff over
suit premises and setting up plea of adverse possession -
Finding of trial court that there is no relationship of landlord
and tenant between parties, not assailed - Held: Once a finding
0 was recorded that there was no relationship of landlord and
tenant under the Scheme of the Act, there was no necessity
to enter into an enquiry with regard to the title of the plaintiff
based on the sale deed or the title of the defendant as put
forth by way of assertion of long possession - High Court is
E justified to the extent that no equitable relief could be granted
in a suit instituted under the Act - But, it has committed an
illegality by affirming the judgment and decree passed by trial
court because by such affirmation, defendant becomes owner
of the premises by acquisition of title by prescription and,
therefore, impugned judgment to that extent is vulnerable and
F accordingly the said affirmation is set aside - Judgment of
High Court is affirmed only to the extent that as relationship
of landlord and tenant was not established, defendant was not
liable for eviction under the Act - The issue of right, title and
interest is open - In the circumstances, plaintiff is entitled
G under law to file a fresh suit for title and recovery of
possession and such other reliefs as the law permits and
defendant is entitled to resist the same by putting forth all his
stand and stance including the plea of adverse possession.
H
368
TRIBHUVANSHANKAR v. AMRUTLAL
369
ADVERSE POSSESSION:
Concept of adverse possession - Explained - Limitation
- Time spent in adjudication of suit and appeals - Held: In the
instant oase, the suit was instituted on the basis of purchase
A
-- The relief sought in the plaint was for delivery of possession B
-- It was not a forum that lacked inherent jurisdiction to pass
a decree for delivery of possession -- It showed the intention
of plaintiff to act and to take back the possession -- In the
circumstances, after institution of the suit, the time for
acquiring title by adverse possession has been arrested or
remained in a state of suspension till the entire proceedings C
arising out of suit are terminated - Therefore, appel/antplaintiff is permitted to institute a suit.
The appellant instituted a suit under the M.P.
Accommodation Control Act, 1961 for eviction of the D
respondent from the suit-premises and for mesne profits.
The case of the appellant-plaintiff was that he had
purchased the suit property under a registered sale deed
dated 1.4.1976 and the respondent-defendant was in
possession of the said suit property as a tenant under E
the vendor on a monthly rent of Rs.15/-. The defendant
disputed the right, title and interest of the plaintiff, and
denied the relationship of landlord and tenant. He further
set up a plea of adverse possession. The trial court
dismissed the suit holding that the sale deed relied upon
F
by the plaintiff was without any sale consideration; that
the relationship of landlord and tenant between the
parties had not been established; and that the
respondent had become the owner of the suit
accommodation on the basis of adverse possession. The G
first appellate court allowed the appeal of the plaintiff and
decreed the suit for possession holding that though the
appellant-plaintiff had not been able to prove the
relationship of landlord and tenant, the conclusion
arrived at by the trial court that the sale-deed dated H
370
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A 1.4.1976 due to absence of sale consideration was invalid,
was neither justified nor correct; and that there being no
clinching evidence to establish that the defendant had
perfected his title by adverse possession, the finding
recorded by the trial court on that score was indefensible.
B The second appeal filed by the defendant-respondent
was allowed by the High Court holding that once the
plaintiff had failed to establish the relationship of landlord
and tenant, the plaintiff could not have fallen back on his
title to seek eviction of the tenant.
c
Allowing the appeal, the Court
HELD: 1.1 The finding returned by the courts below
that has been concurred by the High Court to the effect
that there is no relationship of landlord and tenant
D between the parties is absolutely impeccable and, In fact,
the legality and propriety of the said finding has not been
assailed. [para 14] [380-G-HJ
1.2 There is a difference in exercise of jurisdiction
E when the civil court deals with a lis relating to eviction
brought before it under the provisions of Transfer of
Property Act and under any special enactment pertaining
to eviction on specified grounds. However, if alternative
relief is permissible within the ambit of the Act, the
position would be different. It would depend upon the
F Scheme of the Act whether an alternative relief is
permissible. That apart, the court can decide the issue of
title if a tenant disputes the same and the only purpose
is to see whether the denial of title of the landlord by the
tenant is bona fide in the circumstances of the case.
G Thus, a limited enquiry pertaining to the status of the
parties, i.e., relationship of landlord and tenant can be
undertaken. The dictum laid down in Bhagwati Prasad
and Bishwanath Agarwalla are distinguishable, for in the
said cases the suits were filed under the Transfer of
H
TRIBHUVANSHANKAR v. AMRUTLAL
371
Property Act where the equitable relief under 0. 7, r. 7 A
CPC could be granted. [para 22-23] [389-A-F]
Bhagwati Prasad v. Chandramau/ 1966 SCR 286 =AIR
1966 SC 735 Biswanath Agarwal/a v. Sabitri Bera and Others
2009 (12) SCR 459 = (2009) 15 sec 693 - distinguished.
B
Rajendra Tiwary v. Basudeo Prasad and Another 2001 ~"*"'
(5) Suppl. SCR 243 = 2002 AIR 136; Abdul Ghani v.
Musammat Babni 25 All 256 and Balmukund v. Dalu 25 All
498; Firm Sriniwas Ram Kumar v. Mahabir Prasad 1951 SCR
277 = 1951 AIR 177; Dr. Ranbir Singh v. Asharfi Lal 1995 C
Suppl. (3) SCR 847 = (1995) 6 sec 580; UC v. India
Automobiles & Co. 1990 (3) SCR 545 = (1990) 4 SCC 286 -
referred to.
1.3 However, in the instant case, once a finding was 0
recorded that there was no relationship of landlord and
tenant under the Scheme of the Act, there was no
necessity to enter into an enquiry with regard to the title
of the plaintiff based on the sale deed or the title of the
defendant as put forth by way of assertion of long E
possession. The High Court is justified to the extent that
no equitable relief could be granted in a suit instituted
under the Act. But, it has committed an illegality by
affirming the judgment and decree passed by the trial
court because by such affirmation the defendant
becomes the owner of the premises by acquisition of title F
by prescription and, therefore, the impugned judgment to
that extent is vulnerable and accordingly the said
affirmation is set aside.The judgment of the High Court is
affirmed only to the extent that as the relationship of
landlord and tenant was not established, the defendant G
was not liable for eviction under the Act. The issue of
right, title and interest is definitely open.[para 23 and 25]
[389-F-G; 390-A-C; 391-C-D]
2.1 The suit was instituted on the basis of purchase. H
372
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A A plea was advanced that the defendant had already
perfected his title by prescription as he was in possession
for 18 to 19 years. Under these circumstances the plaintiff
is entitled under law to file a fresh suit for title and
recovery of possession and such other reliefs as the law
B permits and the defendant is entitled to resist the same
by putting forth all his stand and stance including the
plea of adverse possession. [para 24-25] [390-E-F, H; 391A, E]
Rajendra Tiwary v. Basudeo Prasad and Another 2001
C (5) Suppl. SCR 243 = 2002 AIR 136 - relied on.
2.2 Adverse possession fundamentally contemplates
a hostile possession by which there is a denial of title of
the true owner. By virtue of remaining in possession the
D possessor takes an adverse stance to the title of the true
owner. In fact, he disputes the same. A party claiming
adverse possession must prove that his possession is
'nee vi, nee clam, nee precario', that is, peaceful, open
and continuous. The possession must be adequate in
continuity, in publicity and in extent to show that the
E possession is adverse to the true owner. It must start with
a wrongful disposition of the rightful owner and be actual,
visible, exclusive, hostile and continued over the
statutory period. [para 25 and 27] [391-F-G; 392-C-D]
F
Secy. of State for India In Council v. Debendra Lal Khan
(1933-34) 61 IA 78:AIR 1934 PC 23; S.M. Karim v. Mst. Bibi
Sakina 1964 SCR 780 = 1964 AIR 1254; Karnataka Board
of Wakf v. Govt. of India 2004 (1) Suppl. SCR 255 = 2(004)
10 SCC 779; P. T. Munichikkanna Reddy and Others v.
G Revamma and Others 2007 (5) SCR 491 = (2007) 6 SCC 59
- referred to.
2.3 The fundamental policy behind limitation is that
if a person does not pursue his remedy within the
specified time frame, the right to sue gets extinguished.
H In the case at hand, the appellant had filed the suit for
TRIBHUVANSHANKAR v. AMRUTLAL
373
eviction. The relief sought in the plaint was for delivery A
of possession. It was not a forum that lacked inherent
jurisdiction to pass a decree for delivery of possession.
It showed the intention of the plaintiff to act and to take
back the possession. In the circumstances, after the
institution of the suit, the time for acquiring title by
B
adverse possession has been arrested or remained in a
state of suspension till the entire proceedings arising out
of the suit are terminated. Be it ingeminated that if by the
date of instant suit the defendant had already perfected
title by adverse possession that would stand on a c
different footing. [para 30 and 34] [393-F; 394-0-F]
Babu Khan and Others v. Nazim Khan (dead) by L.Rs.
and Others 2001 (2) SCR 1199 = 2001 AIR 1740; Ragho
Prasad v. P.N. Agarwal 1969 All LJ 975 - relied on.
Mst. ·sultan Jehan Begum and Ors. v. Gui Mohd. and
Ors. AIR 1973 MP 72; Sultan Khan s/o Jugge Khan v. State
of Madhya Pradesh and Another 1991 MPLJ 81 - stood
approved.
D
E
Halsbury's Laws of England, Fourth Edition, Volume 28,
Para 605 - referred to.
2.5 Therefore, the appellant-plaintiff is permitted to
institute a suit within a period of two months. [para 35]
Punia Pillai vs. Panai Minor through Pandiya Thevan
AIR 1947 Madras 282, and Amulya Ratan Mukherjee and
ors. V. Kali Pada Tah and Ors. AIR 1975 Cal 200 - cited.
Case Law ~eference:
AIR 1947 Madras 282
cited
para 8
1966 SCR 286
distinguished
para 8
AIR 1975 Cal 200
cited
para 8
F
G
H
A
B
c
D
E
F
374
SUPREME COURT REPORTS
(2013] 12 S.C.R.
2001 (5) Suppl. SCR 243 relied on
Para 10
25 All 256
referred to
para 15
25 All 498
referred to
para 15
2009 (12) SCR 459
distinguished
para 16
1951 SCR 277
referred to
para 19
1995 (3) Suppl. SCR 847 referred to
para 21
1990 (3) SCR 545
referred to
para 21
(1933-34) 61 IA 78:
referred to
para 25
AIR 1934 PC 23
1964 SCR 780
referred to
para 26
2004 (1) Suppl. SCR 255 referred to
para 27
2007 (5) SCR 491
referred to
para 28
AIR 1973 MP 72
approved
para 31
1991 MPLJ 81
approved
para 32
2001 (2) SCR 1199
relied on
para 33
1969 All LJ 975
relied on
para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10316 of 2013.
From the Judgment and Order dated 08.02.2008 of the
High Court of M.P. at Indore in SA No. 33 of 1995.
A.K. Chitale, Niraj Sharma, Sumi! Kr. Sharma for the
G Appellant.
H
Puneet Jain, Christi Jain, Chhaya, Asgar Ali, Pratibha Jain
for the Respondent.
The Judgment of the Court was delivered by
TRIBHUVANSHANKAR v. AMRUTLAL
375
DIPAK MISRA, J. 1. Leave granted.
2. This appeal, by special leave, is from the judgment and
order of the High Court of Madhya Pradesh, Bench at Indore,
in Second Appeal No. 33 of 1995 passed on 8.2.2008.
A
3. The appellant-plaintiff instituted Civil Suit No. 259A/86
B
in the Court of Civil Judge Class-II, Mhow, District Indore, for ·
eviction of the respondent-defendant from the suit-premises and
for mesne profits. The case of the appellant-plaintiff was that
he had purchased the suit property vide registered sale deed
dated 1.4.1976 on payment of sale consideration of Rs.4500/ C
- to the vendor, one Kishanlal. The respondent-defendant was
il"I possession of the said suit property as a tenant under the
earlier owner Kishorilal on payment of rent of Rs.15/- per month.
It was averred in the plaint that it was an oral tenancy and after
acquiring the title the appellant informed the respondent about D
the sale by the earlier owner. Despite assurance given by the
respondent to pay the rent to him, it was not honoured which
compelled the appellant to send a notice on 14.12.1977 and,
eventually, he terminated the tenancy with effect from
31.1.1978. The respondent, as pleaded, had replied to the
E
notice stating, inter alia, that the appellant was neither the
landlord nor the owner of the property. On the contrary, it was
stated in the reply that the respondent was the owner of the
premises.
4. The grounds that were urged while seeking eviction
F
were: {i) the defendant was in arrears of rent since 1.4.1976
and same was demanded vide notice dated 14.12.1977, which
was received on 3.1.1978 and despite receiving the notice, the
defendant defaulted by not paying the rent within two months;
{ii) that the said accommodation was bona fide required by the
G
plaintiff for construction of his house and the accommodation
is an open land; {iii) the said accommodation was bona fide
required by the plaintiff for general merchant shop i.e. nonresidential purpose and for the said purpose the plaintiff did
H
376
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A not have any alternative accommodation in his possession in
Mhow City.
5. In the written statement, the defendant disputed the right,
title and interest of the plaintiff, and denied the relationship of
B landlord and tenant. That apart, a further s.tand was taken that
the appellant had no right under the M.P. Accommodation
Control Act, 1961 (for brevity "the Act") to file the suit for
eviction. It was set forth by the respondent-defendant that he
was never a tenant under Kishorilal and, in fact, the
C accommodation was in a dilapidated condition and a 'banjar'
land and the respondent was in possession for 18 to 19 years
and it was to the knowledg_e. of Kishorilal and his elder brother.
For the purpos~ of business he had constructed a Gumti, got
the gate fixed and when the business relating to sale of furniture
commenced there was no objection from Kishorilal or his
D brother or any family member. The possession, as put forth by
the respondent, was uninterrupted, peaceful and to the
knowledge of Kishorilal who was the actual owner. It was also
set forth that when Kishorilal desired to sell the premises, he
was put to notice about the ownership of the defendant but he
E sold the property without obtaining sale consideration with the
sole intention to obtain possession by colluding with the
appellant-plaintiff. Alternatively, it was pleaded that the premises
is situate in the Cantonment area and the Cantonment Board
has the control over the land and neither Kishorilal nor the
F appellant had any title to the same.
6. The learned trial Judge framed as many as 26 issues.
The relevant issues are, whether the suit accommodation was
taken on rent by the defendant for running his wood business
G in the year 1973 from the earlier landlord Kishorilal; whether
defendant is in continuous, unobstructed and peaceful
possession since 18 years which was within the knowledge of
Kishorilal, his elder brother and their family members; whether
defendant had become owner of the suit accommodation by
way of adverse possession; and wheth«~r the sale deed had
H
TRIBHUVANSHANKAR v. AMRUTLAL
377
[DIPAK MISRA, J.]
been executed without any consideration for causing damage
A
to the title of defendant.
7. The learned trial Judge, on the basis of evidence
brought on record, came to hold that the sale deed executed
by Kishorilal in favour of the appellant was without any sale
consideration; that the relationship of landlord and tenant
B
between the parties had not been established; and that the
respondent had become the owner of the suit accommodation
on the basis of adverse possession. Being of this view, the trial
court dismissed the suit.
8. Being dissatisfied with the aforesaid judgment and
decree the plaintiff preferred Civil Regular Appeal No. 5 of
1994 and the lower appellate court, reappreciating the evidence
c
on record and considering the submissions raised at the bar,
came to hold that the appellant- plaintiff had not been able to .. o
prove the relationship of landlord and tenant; that the conclysion
'
' 'It,'
·'
,
'
arrived at by the learned trial '.11.!.1!.ge that the. s~J,e-deed dated
1.4.1976 due to absence of sale ccinsiderati6n\vas invalid, was
neither justified nor correct; and that there being no clinching
evidence to establish that the defendant had perfected his title
E
by adverse possession the finding recorded by the learned trial
Judge on that score was indefensible. After so holding, the
learned appellate Judge proceeded to hold that as the plaintiff
had established his title and the defendant had miserably failed
to substantiate his assertion as regards the claim of perfection
F
of title by way of adverse possession, the plaintiff on the basis
of his ownership was entitled to a decree for possession. To
arrive at the said conclusion he placed reliance on Punia Pillai
vs. Panai Minor through Pandiya Thevan 1, Bhagwati Prasad
v. Chandramau/2 and Amu/ya Ratan Mukherjee and Ors. V.
G
Kali Pada Tah and Ors. 3
1.
AIR 1947 Madras 282
2.
AIR 1966 SC 735.
3.
AIR 1975 Cal 200.
H
A
8
c
D
378
SUPREME COURT REPORTS
[2013] 12 S.C.R.
9. Facing failure before the appellate court the defendant
preferred Second Appeal No. 33of1995 before the High Court.
The appeal was admitted on the following substantial questions
of law: -
"(1) Whether a decree could be passed in favour of
plaintiff though such plaintiff fails to establish the
relationship of landlord and tenant?
(2) Whether the 1st Appellate Court committed the error
of law in pronouncing the error of law in pronouncing the
judgment and decree on question of title? And
(3) Whether the 1st Appellate Court has erred in law in
holding that the possession of the defendant is not proved
and that the defendant has not acquired the title by adverse
possession?"
10. The learned single Judge by judgment dated 8.2.2008
adverted to Sections 12(1 )(a) and 12(1 )(e) of the Act and came
to hold that once the plaintiff had failed to establish the
relationship of landlord and tenant which is the sine qua non in
E a suit for eviction, the plaintiff could not have fallen back on his
title to seek eviction of the tenant. Be it noted, the learned single
Judge placed reliance upon Rajendra Tiwary v. Basudeo
Prasad and another wherein the decision in Bhagwati Prasad
(supra) had been distinguished. The learned single Judge
F dislodged the judgment and decree passed by the lower
appellate court and affirmed that of the learned trial Judge.
11. We have heard Mr. A.K. Chitale, learned senior
counsel appearing for the appellant and Mr. Puneet Jain,
G learned counsel appearing for the respondent.
12. Questioning the legal acceptableness of the decision
of the High Court the learned senior counsel has raised the
following contentions: -
H
4.
AIR 2002 SC 136.
TRIBHUVANSHANKAR v. AMRUTLAL
379
[DIPAK MISRA, J.]
(a)
The learned single Judge has erroneously opined
that a suit cannot be decreed by civil court for
possession on the basis of general title even if the
landlord-tenant relationship is not proved. A
manifest error has been committed by the learned
Judge not following the law laid down in Bhagwati
Prasad (supra) which is applicable on all fours to
the case at hand, solely on the ground that the said
decision has been distinguished in Rajendra
Tiwary's case.
(b)
Though three substantial questions of law were
framed, yet the learned single Judge without
considering all the questionss affirmed the judgment
of the trial court wherein it had come to hold that
the defendant had established his title by adverse
possession despite the same had already been
annulled on reappreciation of evidence by the lower
appellate court.
(c)
Assuming a conclusion is arrived at that there
should have been a prayer for recovery of
possession by paying the requisite court fee, the
appellant, who has been fighting the litigation since
decades should be allowed to amend the plaint and
on payment of requisite court fee apposite relief
should be granted.
13. Countering the aforesaid submissions Mr. Puneet Jain,
learned counsel appearing for the respondent, has proponed
thus: -
A
B
c
D
E
F
(i)
The analysis made by the High Court that when the G
relationship between the landlord and tenant is not
proven in a suit for eviction, possession cannot be
delivered solely on the bedrock of right, title and
interest cannot be found fault with. There is a
difference between a suit for eviction based on H
A
B
c
D
E
F
380
SUPREME COURT REPORTS
[2013] 12 S.C.R.
landlord-tenant relationship and suit for possession
based on title, and once the relationship of landlord
and tenant is not proven there cannot be a decree
for eviction.
(ii)
The High Court has correctly distinguished the
decision rendered in Bhagwati Prasad (supra) in
Rajendra Tiwary (supra) as the law laid down in
Bhagwati Prasad is not applicable to the present
case and hence, the submission raised on behalf
of the appellant that once the right, title and interest
is established, on the basis of general title,
possession can be recovered is unacceptable.
(iii)
The alternative submission that liberty should be
granted to amend the plaint for inclusion of the relief
for recovery of possession would convert the suit
from one for eviction simplh~iter to another for right,
title and interest and recovery of possession which
is impermissible. That apart, when the suit was
c,lismissed and the controversy travelled to
appellate court the plaintiff was aware of the whole
situation but chose not to seek the alternative relief
that was available which is presently barred by
limitation. It is well settled in law that the Court
should decline to allow the prayer to amend the
plaint if a fresh suit based on the amended claim
would be barred by limitation on the date of
application.
14. At the very outset, we may straight away proceed to
state that the finding returned by the courts below that has been
G concurred by the High Court to the effect that there is no
relationship of landlord and tenant between the parties is
absolutely impeccable and, in fact, the legality and propriety of
the said finding has not been assailed by the learned senior
counsel for the appellant. As far as right, title and interest is
H concerned, the learned trial Judge had not believed the sale
TRIBHUVANSHANKAR v. AMRUTLAL
381
[DIPAK MISRA, J.]
deed executed by the vendor of the appellant-plaintiff in his
A
favour for lack of consideration and also returned an affirmative
finding that the defendant was in possession for long and
hence; had acquired title by prescription. The learned appellate
Judge on reappreciation of the evidence brought on record had
unsettled the findings with regard to the title of the plaintiff as
B
well .as the acquisition of title by the defendant by way of
adverse possession. He had granted relief to the plaintiff on
the ground that in a suit for eviction when the title was proven
and assertion of adverse possession was negatived by the
court, there could be a direction for delivery of possession. As c
has been stated earlier the High Court has reversed the same
by distinguishing the law laid down in Bhagwati Prasad (supra)
and restored the verdict of the learned trial Judge.
15. Keeping these broad facts in view, it is necessary to
0 .
scrutinize whether the decision in Bhagwati Prasad which has
been assiduously commended to us by Mr. Chitale is
applicable to the case. In Bhagwati Prasad (supra) the
defendant was the appellant before this Court. The case of the
plaintiff was that the defendant was in possession of the house
as the tenant of the plaintiff. The defendant admitted that the
E
land over which the house stood belongedi'o the plaintiff. He,
however, pleaded that the house had been constructed by the
defendant at his own cost and that too at the request of the
plaintiff because the plaintiff had no funds to construct the
building on his own. Having constructed the house at his own
F
cost, the defendant entered into possession of the house on
condition that the defendant would continue to occupy the same
until the amount spent by him on the construction was repaid
to him by the plaintiff. In this backdrop, the defendant resisted
the claim made by the plaintiff for ejectment as well as for rent.
G
The learned trial Judge held that the suit was competent and
came to the conclusion that the plaintiff was entitled to a decree
for ejectment as well as for rent. The High Court agreed with
the trial court in disbelieving the defendant's version about the
construction of the house and about the terms and conditions
H
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SUPREME COURT REPORTS
[2013] 12 S.C.R.
A on which he had been let into possession. The High Court
opined that the defendant must be deemed to have been in
possession of the house as a licensee and accordingly opined
that a decree for ejectment should be passed. Dealing with
various contentions raised before this Court it was ruled that
B the defendant could not have taken any other plea barring that
of a licensee in view of the pleadings already put forth and the
evidence already adduced. In that context, this Court opined that
the High Court had correctly relied upon the earlier Full Bench
decision in Abdul Ghani v. Musammat Babni5 and Balmukund
c v. Dalt!. An opinion was expressed by this Court that once the
finding was returned that the defendant was in possession as
a licensee, there was no difficulty in affirming the decree for
ejectment, even though the plaintiff had originally claimed
ejectment on the ground of tenancy and not specifically on the
0 ground of licence. In that context it was observed thus: -
"15 .... In the present case, having regard to all the facts,
we are unable to hold that the High Court erred in
confirming the decree for ejectment passes by the trial
Court on the ground that the defendant was in possession
E
of the suit premises as a licensee. In this case, the High
Court was obviously impressed by the thought that once
the defendant was shown to be in possession of the suit
premises as a licensee, it would be built to require the
plaintiff to file another suit against the defendant for
F
ejectment on that basis. We are not prepared to hold that
in adopting this approach in the circumstances of this
case, the High Court can be said to have gone wrong in
law."
16. Before we proceed to state the ratio in Rajendra
G Tiwary's case, we think it seemly to advert to the principle
stated in Biswanath Agarwal/a v. Sabitri Bera and Others7 as
5.
25 All 256.
6.
25 All 498.
H 7.
(2009J 15 sec 693.
TRIBHUVANSHANKAR v. AMRUTLAL
383
[DIPAK MISRA, J.]
the same has been strongly relied upon by the learned senior A
counsel for the appellant. In the said case, the question that was
posed is whether a civil court can pass a decree on the ground
that the defendant is a trespasser in a simple suit for eviction.
In the said case the learned single Judge of the Calcutta High
Court, considering the issues framed and the evidence laid, had
B
held that although the plaintiffs had failed to prove the
relationship of landlord and tenant by and between them and
the defendant or that the defendant had been let into the
tenanted premises on leave and licence basis, the respondentplaintiffs were entitled to a decree for possession on the basis c
of their general title. This Court took note of the relief prayed,
namely, a decree for eviction of the defendant from the
schedule premises and for grant of mesne profit in case the
eviction is allowed at certain rates. The Court proceeded on
the base that the plaintiff had proved his right, title and interest.
0
The Court observed that the landlord in a given case, although
may not be able to prove the relationship of landlord and tenant,
yet in the event he proves the general title, may obtain a decree
on the basis thereunder. But regard being had to the nature of
the case the Court observed that the defendant was entitled to
raise a contention that he had acquired indefeasible title by
E
adverse possession. The Court referred to the decision in
Bhagwati Prasad (supra) and, eventually, came to hold as
follows: -
"27. The question as to whether the defendant acquired
F
title by adverse possession was a plausible plea. He, in
fact, raised the same before the appellate court.
Submission before the first appellate court by the
defendant that he hac,i acquired title by adverse
possession was merely argumentative in nature as neither G
there was a pleading nor there was an issue. The learned
trial court had no occasion to go into the said question.
We, therefore, are of the opinion that in a case of this nature
an issue was required to be framed."
H
A
B
c
D
E
F
G
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(2013] 12 S.C.R.
Thereafter, the two-Judge Bench issued the following
directions: -
"29. However, we are of the opinion that keeping in view
the peculiar facts and circumstances of this case and as
the plaintiffs have filed the suit as far back as in the year
1990, the interest of justice should be subserved if we in
exercise of our jurisdiction under Article 142 of. the
Constitution of India issue the following directions with a
view to do complete justice to the parties.
(i) The plaintiffs may file an application for grant of
leave to amend their plaint so as to enable them to
pray for a decree .for eviction of the defendant on
the ground that he is a trespasser.
(ii) For the aforementione:d purpose, he shall pay
the requisite court fee in terms of the provisions of
the Court Fees Act, 1870.
(iii) Such an application for grant of leave to amend
the plaint as also the requisite amount of court fees
should be tendered within four weeks from date.
(iv) The appellant-defendant would, in such an event,
be entitled to file his additional written statement.
(v) The learned trial Judge shall frame an
appropriate issue and the parties would be entitled
to adduce any other or further evidence on such
issue.
(vi) All the evidences brought on record by the
parties shall, however, be considered by the court
for the purposes of disposal of the suit.
(vii) The learned trial Judge is directed to dispose
of the suit as expeditiously as possible and
preferably within three months from the date of filing
,
TRIBHUVANSHANKAR v. AMRUTLAL
385
[DIPAK MISRA, J.]
of the application by the plaintiffs in terms of the
A
aforementioned Direction (i)."
17. At this stage it is necessary to dwell upon the facet of
applicability of the said authorities to the1 lis of the present
nature. As per the exposition of facts, the analysis made and
8
the principles laid down in both the cases, we notice that the
civil action was initiated under the provisions of Transfer of
Property Act, 1882. In Bhagwati Prasad's case the Court opined
that a decree for ejectment could be passed on general title
as the defendant was a licensee. In Biswanath Agarwa//a's
case the Court took note of the concept of general title and the .C
plausible plea of adverse possession and granted liberty to the
plaintiff to amend the plaint seeking a decree for recovery of
possession and pay the required court fee under the Court-fees
Act, 1870. That apart, certain other directions were issued. We
may repeat at the cost of repetition that the suits were instituted
D
under the Transfer of Property Act. The effect of the same and
its impact on difference of jurisdiction on a civil court in
exercising power under the Tra.nsfer of Property Act and under
special enactments relating to eviction and other proceedings
instituted between the landlord and tenant, we shall advert to
E
the said aspects slightly at a later stage.
18. Presently, we shall analyse the principles stated in
Rajendra Tiwary (supra). In the said case the respondent-
. plaintiff had filed a suit for eviction under the Bihar Buildings
F
(Lease, Rent and Eviction) Control Act, 1982 on many a
ground. The learned trial Judge, appreciating the evidence on
record, dismissed the suit for eviction holding that there was
no relationship of landlord and tenant between the plaintiff and
the defendant. However, he had returned a finding that the
G
plaintiff had title to the suit premises. The appellate court
affirmed the judgment of the learned trial Judge and dismissed
the appeal. In second appeal the High Court reversed the
decisions of the courts below and allowed the appeal taking
the view that a decree for eviction could be passed against the
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SUPREME COURT REPORTS
[2013] 12 S.C.R.
A defendant on the basis of the title of the plaintiff and,
accordingly, remanded the case to the first appellate court on
the ground that it had not recorded any finding on the question
of the title of the parties. It was contended before this Court that
as the trial court was exercising limited jurisdiction under the
B Rent Act, the question of title to the suit premises could not be
decided inasmuch as that had to be done by a civil court in its
ordinary jurisdiction and, therefore, the High Court erred in law
in remanding the case to the first appellate court for deciding
the question of title of the plaintiff and passing an equitable
c decree for eviction of the defendant. The Court posed a
question whether on the facts and in the circumstances of the
case the High Court was right in law holding that an equitable
decree for eviction of the defendant could be passed under
Order VII Rule 7 of the Civil Procedure Code and remanding
0 the case to the first appellate court for recording its finding on
the question of title of the parties to the suit premises and for
passing an equitable decree for eviction against the defendant
if the plaintiffs were found to have title thereto. Answering the
question the learned Judges proceeded to state thus: -
E
"It is evident that while dealing with the suit of the plaintiffs
for eviction of the defendant from the suit premises under
clauses (c) and (d) of sub-section (1) of Section 11 of the
Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment.
F
The sine qua non for granting the relief in the suit, under
the Act, is that between the plaintiffs and the defendant the
relationship of "landlord and tenant" should exist. The
scope of the enquiry before the courts was limited to the
question: as to whether the !Jrounds for eviction of the
G
defendant have been made out under the Act. The question
of title of the parties to the suit premises is not relevant
having regard to the width of the definition of the terms
"landlord" and "tenant" in clauses (f) and (h), respectively,
of Section 2 of the Act."
H
TRIBHUVANSHANKAR v. AMRUTLAL
387
[DIPAK MISRA, J.]
19. In course of deliberation, the two-Judge Bench
A
distinguished the authorities in Firm Sriniwas Ram Kumar v.
Mahabir Prasad8 and Bhagwati Prasad (supra) by observing
thus: -
"15. These are cases where the courts which tried the suits
B
were ordinary civil courts having jurisdiction to grant
alternative relief and pass decree under Order VII Rule 7.
A Court of Rent Controller having limited jurisdiction to trv
suits on grounds specified in the special Act obviously
does not have jurisdiction of the ordinary civil court and
C
therefore cannot pass a decree for eviction of the
defendant on a ground other than the one specified in the
Act. If. however. the alternative relief is permissible within
the ambit of the Act. the position would be different."
[Emphasis supplied]
D
20. Thereafter, the learned Judges proceeded to express
thus:
"16. In this case the reason for denial of the relief to the
plaintiffs by the trial court and the appellate court is that
E
the very foundation of the suit, namely, the plaintiffs are the
landlords and the defendant is the tenant, has been
concurrently found to be not established. In any event
inquiry into title of the plaintiffs is beyond the scope of the
court exercising jurisdiction under the Act. That being the
F
position the impugned order of the High Court remanding
the case to the first appellate court for recording finding
on the question of title of the parties. is unwarranted and
unsustainable. Further, as pointed out above, in such a
case the provisions of Order VII Rule 7 are not attracted."
G
[Underlining is ours]
21. At this juncture, we may fruitfully refer to the principles
8.
AIR 1951 SC 177.
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SUPREME COURT REPORTS
(2013] 12 S.C.R.
A stated in Dr. Ranbir Singh v. Asharfi Lal9• In the said case the
Court was dealing with the case instituted by the landlord under
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
for eviction of the tenant who had disputed the title and the High
Court had decided the judgment and decree of the courts below
B and dismissed the suit of the plaintiff seeking eviction. While
adverting to the issue of title the Court ruled that in a case
where a plaintiff institutes a suit for eviction of his tenant based
on the relationship of the landlord and tenant, the scope of the
suit is very much limited in which a question of title cannot be
c gone into because the suit of the plaintiff would be dismissed
even if he succeeds in proving his title but fails to establish the
privily of contract of tenancy. In a suit for eviction based on such
relationship the Court has only to decide whether the defendant
is the tenant of the plaintiff or not, though the question of title if
0 disputed, may incidentally be gone into, in connection with the
primary question for determining th1~ main question about the
relationship between the litigating parties. In the said case the
learned Judges referred to the authority in L/C v. India
Automobiles & Co. 10 wherein the Court had observed that in a
suit for eviction between the landlord and tenant, the Court will
E take only a prima facie decision on the collateral issue as to
whether the applicant was landlord. If the Court finds existence
of relationship of landlord and tenant between the parties it will
have to pass a decree in accordance with law. It was further
observed therein that all that the Court has to do is to satisfy
F itself that the person seeking eviction is a landlord, who has
prima facie right to receive the rent of the property in question.
In order to decide whether denial of landlord's title by the tenant
is bona fide the Court may have to go into tenant's contention
on the issue but the Court is not to decide the question of title
G finally as the Court has to see whether the tenant's denial of
title of the landlord is bona fide in the circumstances of the case.
22. On a seemly analysis of the principle stated in the
9.
(1995) a sec 580.
H 1 o. (1990) 4 sec 286.
TRIBHUVANSHANKAR v. AMRUTLAL
389
[DIPAK MISRA, J.]
aforesaid authorities, it is quite vivid that there is a difference
A
in exercise of jurisdiction when the civil court deals with a lis
relating to eviction brought before it under the provisions of .
Transfer of Property Act and under any special enactment
pertaining to eviction on specified grounds. Needless to say,
this court has cautiously added that if alternative relief is
B
permissible within the ambit of the Act, the position would be
different.