# PROKASH ~HANDRA MUKHERJEE & ORS v. SARADINDU KUMAR MUKHERJEE & ORS

- **Citation:** [1971] 3 S.C.R. 666
- **Court:** Supreme Court of India
- **Decided:** 1971-02-04
- **Case number:** Civil Appeal No. 2394 of 1966
- **Bench:** G. K. Mitter, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prokash-handra-mukherjee-ors-v-saradindu-kumar-mukherjee-ors-5227
- **Pages:** 8

## Headnote

Defence of India Act, 1939 and Rules, r. 15-A-Requisition and possession h.v Government-Period, whether could be tacked for purposes of
Umitation by person to whom possession was restored.
P/eadings-pr•yer for possession-When can be inferred.
The plaintiff became a co-sharer with the defendant in the suit property
in the year 19411 as a result of some corveyances by members of the
defendants' family. The property was in the occupation of military authorities by requisition under the Defence of India Act, 1939, and the Rules
made thereunder, for four years from 1942 to 1946. .The defendants were
in exclusive possession thereafter from 1946 to 1955 when the ,plaintiff
filed a suit for partition and possession of his share.
·
On the question whether the suit was ba~red by limitation under art.
144 of Limitation Act, 1908, on the plea that as the military autholrities
had taken possession ofthe property from the defendants and had restored
the possession to them in 1946-the possession of the said authorities was
really under or on behalf of the defendants without causing an)' break in
the continuity of their, posse~sion,
HELD ;. The possession of the Government was neither by permissionof the defendants nor in the character of an agent of the defendants. The
orders of requisition, relinquishment of possession and payment of compen91ttion under the Defence of India Act read with Act and the Rules
show that the possession was taken l>y Virtue of the powers under the
Act a~d the Rules irrespective of any consideration as to the rights of the
true owner Or the occupier __ who could make a claim to compensation.
Therefore, possession of Government by requisition under rule 75-A cannot enure for the 1i>enefit of the person who was in possession before, for
lhe pmpose of enabling such person to acquire
a prescriptjve title.
f669 E-F; 670 B-Dl
Karan Singh v. Bakar Ali Khan, 9 I.A. 99, applied.
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Boi>ett v. South Eastern Railway Co. [1882] 9 Q.B. 424 and Dagdu v.
Ka/u, 22 Bombay 733, explained.
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## Text

666
PROKASH ~HANDRA MUKHERJEE & ORS.
v.
SARADINDU KUMAR MUKHERJEE & ORS.
February 4, 1971
(G. K. MITTER AND A. N. RAY, JJ.]
Defence of India Act, 1939 and Rules, r. 15-A-Requisition and possession h.v Government-Period, whether could be tacked for purposes of
Umitation by person to whom possession was restored.
P/eadings-pr•yer for possession-When can be inferred.
The plaintiff became a co-sharer with the defendant in the suit property
in the year 19411 as a result of some corveyances by members of the
defendants' family. The property was in the occupation of military authorities by requisition under the Defence of India Act, 1939, and the Rules
made thereunder, for four years from 1942 to 1946. .The defendants were
in exclusive possession thereafter from 1946 to 1955 when the ,plaintiff
filed a suit for partition and possession of his share.
·
On the question whether the suit was ba~red by limitation under art.
144 of Limitation Act, 1908, on the plea that as the military autholrities
had taken possession ofthe property from the defendants and had restored
the possession to them in 1946-the possession of the said authorities was
really under or on behalf of the defendants without causing an)' break in
the continuity of their, posse~sion,
HELD ;. The possession of the Government was neither by permissionof the defendants nor in the character of an agent of the defendants. The
orders of requisition, relinquishment of possession and payment of compen91ttion under the Defence of India Act read with Act and the Rules
show that the possession was taken l>y Virtue of the powers under the
Act a~d the Rules irrespective of any consideration as to the rights of the
true owner Or the occupier __ who could make a claim to compensation.
Therefore, possession of Government by requisition under rule 75-A cannot enure for the 1i>enefit of the person who was in possession before, for
lhe pmpose of enabling such person to acquire
a prescriptjve title.
f669 E-F; 670 B-Dl
Karan Singh v. Bakar Ali Khan, 9 I.A. 99, applied.
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Boi>ett v. South Eastern Railway Co. [1882] 9 Q.B. 424 and Dagdu v.
Ka/u, 22 Bombay 733, explained.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of
1966.
Appeal by special leave from the judgment and decree dated
June 26, 1964 of the Calcutta High Court in Appeal from Appellate Decree No. 1011 of 1962.
· S. V. Gupte and D. N. Mukherjee, for the appellants ..
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P. c. MUKHERJEE v. s. K. MUKHERJEE (Mitter, J.)
667
Bislum Narain and P. K. Ghosh, for respondents Nos. 1, 2(c),
2(d), 2(f) and 2(g).
The Judgment of the Court was delivered by.
Mitter, J. The main question in this appeal is, whether the
defendants-appellants perfected their title to the property in respect of which partition was claimed by the plaintifls by adverse·
possession for the prescriptive period of twelve years or more.
The relevant facts are as follows. The parties are all descendants of one Durgadas Mukherjee who died many years back,
leaving six sons and inter alia the property which is the subject
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matter of this litigation, recorded as Dag No. 444 Khatian No.
72 in Mauja Barasat, District 24 Parganas during the last Cadastral survey. Of the two plaintiffs the first Saradindu is a great
grandson of the said Durgadas Mukherjee of the branch of the
youngest son, his co-plaintill' being a grandson in another branch.
The defendants belong to other branches of the said family. The
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first plaintiff based his title on several conveyances from other
members of the family as also purchase at an execution sale of
a fractional interest of the members of the branch of Bama Charan,
the second son of Durgadas. The second plaintill' claims by inheritance. Tue property consists of . 34 acres together with two
structures th\lreon which are quite separate from each other. One
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portion of the structures i.e. that to the east, popularly known as
Bamacharan Babu's Bati is a fairly commodious building with
a separate municipal number. The other structure in the western
portion known as Baitakhana Bati was and is admittedly the-joint
property of the descendants of Durgadas with a municipal number
of itS own. The plaintill's claim that the land and the two buildings are joint property while the contesting defendants, some of
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whom ·are appellants before this Court, claim exclusive title to
the said eastern building with the land on which it stands. The
case of the appellants was that the eastern structure was constructed by Bama Charan with his own money and thafthe co-sharers
of Bama Charan, by ekramamas, gave up their interest in the
land on which the same stood. The High Court agreeing with
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the finding of the first appellate court found that there was no
evidence on record to show that Barna Charan had put up the
said building with his own money ()r that he was the exclusive
owner of the said two-storeyed building or that the other cosharers gave up their ownership of the subjacent soil and rejected
the exclwiive title sought to be set up with regard thereto. ThisH
is a conclusion of fact which does not require furtl}er scrutiny.
The High Court also agreed with the. lower appellate court in.
rejecting the story of permissive possession of the defendants over
the said building set μp by the plaintiffs and came to the conclu13-918 Sup. C.I./71
•668
SUPREME COURT REPORTS
[1971] 3 S.C.R
·sion that "at all material times the heirs in the line of Barna
Charan including the appellants were in separate possession of the
eastern two-storeyed building."
The point for consideration before the High Court was and
before us is, whether by such exclusive possessi_on the heirs in the
line of Barna Charan including the appellants acquired title by
.adverse possession to the eastern portion i.e. Barna charan Babu's
Bati.
With regard to the Baitakhana Bati there is no dispute
about its jointness.
No question can be raised about the first
plaintiffs having become a co-sharer wi1h the heirs in ~
line of
Barna Charan in the year 1941 by private treaties and the auction
:purcha!;e of the shares of three of his sons in execution of an
.award under a Co-operative Societies Act.
By the kobalas the
nrst plaintiff acquired fractional interest in the shares of .some 0£
:the descendants of Barna Charan as also of the descendants of his
hrother Shyama Charan. . In the sale certificate following
the
.auction purchase there is a reference to "Dalan 3 Privy 2" but
there is no express reference to these :n the koabalas (Ex. 6
·series). In the courts below the defondants-appellants contended
-ihat the eastern two-storeyed building was neither intended to be
nor was conveyed under Ex. 6 series kobalas aml Ex. 9(a), the
sale certificate. Both the trial court and the first appellate court
held that the kobalas and sale certificate were sufficiently comprehensiw so as to include all or· any structures which stood on
the aforesaid plot of land at the material time and that there was
nothing express or implied in the kobalas to ~how that the twostoreyed building on the eastern side was intended to be excluded
from their operation. The High Court also found that so far as
the sale certificate was concerned the first plaintiff had acquired
'the interest of three sons of Baba Charan.
The point as to adverse possession canvassed by 1the appellants arises in the following manner.
Their conten,tJon i~ that
although the sale certificate was obtained in 1941 inasmuch as the
suit for partition was filed in 1955 the requisite.period of 12 years
under Art. 144 of the Limitation Act of 1908 had elapsed in the
meanwhile resulting in the perfection of their title by exclusive
separate· possession of the property. To this the plaintiffs'
rejoinder was that the two,storeyed building in the eastern wint had
indisputably been in the occupation of the military authc:>rrties ·by·
requisition under the Defence of India Act and the Rules, 1939
for four years from 1942 to 1946. · It was argued that there was
thus a break in the claim to the prescriptive· title set up and
adverse possesion, if any, was limited to the period between
1946 and 1955. This was sought to be repelled by the plea that
the military authorities had taken possession -of the property from
the defendants and had restored possession to them in 1946 and
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P. c. MUKHERJEE v. s. K. ;MUKHERJEE (Mitter. !.)
669
that their possession was really under or on behal;f of the defendants without causing a break in the continuinty of their possession.
An attempt was made to substantiate this by reference to
several documents which f-0rm part of the record. The order of
requisition dated May 28, 1942 made under rule 75-A of the -
Defence of India Rules issued by the Collector of the District of
24 Parganas shows that the building together with fixtures, fittings
etc. was to be placed at the disposal and under the control of
Brigadier Commander 36 Indian Infantry Brigasfe Barrackpore
on and ;from 8-2-1942 until six months after the termination of
the war unless relinquished earlier.
A copy of the notice-was
served on Prokash Chandra Mukherjee of Barasat des_cribed as
"the owner/ occupier" of the said property.
The notice of an
award under s. 19 of the Defence of India Act 1939 addressed
to Prokash Chandra Mukherjee, another descendant of Bama
Charan shows that compensaiion had been adjudged and awarded
in respect -0f the property at Rs. 125. A third notice dated June
24, 1946 se~t out from the office of the Land Acquisition Collector addressed to Pankaj Kumar' Mukherjee and others shows tha
possession of Cadastrai survey plot No. 444 Mouza Barasat. requisitioned under rule 75-A would be restored to the addressee
on July 2, -1946. Ex. D, a memo .forwarding a cheque for Rs.
2.100 was
addressed to Prokash Chandra Mukherjee and
others by way of rent for terminal compensation in respect .of_ the
premises which had been requisitioned.
In our view possession by Government pr the military authorities of immovable property under rule 75-A of the Defence of
India Rules 1939 cannot be said to be in the charac,ter of an
agent or by virtue of any implied p¢rmission from the true owner
or occupier.
S. 2 of the Act of 1939 under which rules were
made and in particular cl. (xxiv) of sub-s. (2) of that section
empowered the authorities mentioned to make orders providing
for the requisitioning of any property, movable or immovable,
including the taking possession thereof ·and the issue of any
orders in respect thereof. S. 19 (1 ) of the Act only
enjoined
upon the Government to pay compensation in every case of sue~
requisition and under s. 19-B(l) Government was under an obltgation, wbenever any property requisitioned ~nde~ any rule was
to be released therefrom, to make such enquiry, if any, as was
considered necessary and specify by order in writinf?
t~e pc~on
to whom possession was to be given. Sub-s. (2) of this sect10n
clearly shows that delivery of possession of the property to the
person specified in an order under sub-s. (1) was to operate as
full discharge to the Government f!om all l!abilit!es in respect of
the" property but was not to prejudice any nj!hts Ill respect thereof which a~y other pc;rson might be entitled by ~ue process of
law to enforce against' the person to whom possession of the pro-
670
SUPREME COURT REPORTS
[1971] 3 S.C.R.
perty was given. Rule 75-A enabled the Central Government or
the Provincial _Government to requisition any property, movable
or immovable, subject to certain exceptions mentioned therein.
The net result of the Act and the Rules and the effect of orders
of requisition and relinquishment of possession an!l/ or payment
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of Compensation must be taken to be that. possession was taken
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by virtue of the powers under the Act and the rules irrespective
of any consideration as to the rights of the tru~ owner _or the
occupier who could only make a claim to compensation. It iS
further clear that even if possession was taken from A but was
made over to B after relinquishment, A could have no cause of
action against Government if relinquishment was in terms of cl. · C
(2) of s. 19-B(l). In other words possession of Government
was neither by permission nor in the character of an agent. I(
possession under the requisition had been taken from a trespasser
but had been restored to the lawful owner after' the end of the
period of requisition, the trespasser could not contend that he
was wrongfully deprived of possession or that the period of
Government's occupation should be added to the penod of his
preceding trespass to enable him to claim a prescriptive right by
adverse possession.
The High Court relied on the decision of the Judicial C~
mittee of the Privy Council in Karan Singh v. Bakar Ali Khan(')
in coming to the conclusion that such requisition put an end to
the claim for adverse possession, if any, which might have started
from an anterior date. The Judicial Committee held that possession of the defendants since 1863 when the Collector had relinquished possession was not, 12 years' possession but it was contended on behalf of the defendant that he was justified in tacking
to his possession: the possession of the Collector from 1861. The
Board found that pending a dispute between the parties the Collector, in order to secure the Government revenue had attached
and taken possession of the property and retained possession of
it from 1861 until October 1863 when in consequence of the
decree of the civil court he delivered possession to the defendant
and paid over to him the surplus profitS of the estate after deducting the Government revenue and expenses. As the suit was
brought in the year 1874 the period of 12 years had to commence
some time in 1862. The Board observed that it must be assumed
that "the Collector properly took possession for the purpose of
protecting the Government revenue. It was the duty of the
Coll_ectQr. whilst-in posse8sion under the attachment, to collect
The rents from the ryots, and having paid the Government revenue
and the expenses of collection to pay over the surplus to the real
owner; If the defendant was the real owner the surplus belonged
(I) 9 I.A. 99.
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P. c. MUKHERJEE v. s. K. MUKHERJBE (Mitter, J.)
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to him; but if, on the other hand, the infants were the right
owners, then the surplus belonged to them. . . . The Coilector,
by paying over the money to Karan Singh, did not give Karan
Singh a title." Accordingly it was held that the suit was not barred
by limitation .
Mr. Gupte on behalf of the appellants relied on Halsbury's
Laws of England (Third Edition, Vol. 24) Art. 484 at p. 253 in
support of his contention that the exclusive possession of his client
was not disturbed by the requisition. The article relied on reads :
"The mere fact that land is taken under the Lands
Clauses Consolidation Ai:t, 1845, for the purposes of a
public undertaking, and is not sUperfluous land, does not
prevent a person, who has exclusive possession of such
land for the46tatutory period, from acquiring title under
the statute;"
The decision relied on by Mr. Gupte is that of Bobett v. The South
Eastern Railway Co. (I).
In our view neither the above passage nor this judgment helps
the appellants in any way. One of the points raised in Bobett's
case was, whether the plaintiff in an action of trespass and to recover possession of land could be allowed to set up a plea that
inasmuch as he had been let into possession by the defendants
or that he had beien in possession to the exclusion of the defendants
without any tenancy at all during the time required by the Statute
of Limitation for the acquisition of a prescriptive title, he was
absolutely entitled to the land when ousted by the defendants. It
was argued on behalf of the defendants that even if the plaintiff
was a tenant at will for the requisite period and in exclusiye possession of the l'and the Statute of Limitation did not apply to the
case for the land in question was inalie11able by the company
under s. 12 7 of the Lands Clauses Act and therefore could, by the
mere !aches of its officers have vested in the plaintiff contrary to
the intention of the Legislature which only allowed the company
to take. possession of the land for the purposes of the undertaking
and subject to the provisions of its Acts and not give it up to
others. There on a consideration of s. 7 of 3 and 4 wm. 4, c. 27
and other statutory provisions Denman, J. arrived at the conclusion :
" .... that the inere fact that the property in question
was land taken for the purposes of the undertakmg and
not superfluous land, would not prevent the plaintiff if
he had exclusive possession since 18 63, either as a
(I) [1882] 9 Q.B.424.
672
SUPREME COURT REPORTS
[1971] 3 s.c.R.
wrongdoer or as ienant at will in the first instance, from
being entitled to the land by virtue of the Statute of
Limitations."
Put simply the dictum only meant that the Statute of Limitation
would be applicable to possession of a trespasser notwithstanding
the provisions of the Lands Clauses Act, 1845.
The question be.fore us is altogether of a different character.
If the defendants-appellants could have established that an order
under r. 7 5-A of the Defence of India Rules merely enabled the.
military authoritie~ to take possession of the land for the period
of their need by their permission or in the character of agents.
they would have probably been on firm ground. But, as already.
observed by us, the nature of the order of requisition under r. 75-A
is altogether different and such posS>~ssiori cannot enure for the
benefit of the person who was jn possession before for the purpose
of acquisition of a prescriptive title.
The only other decision to which our attention was drawn is
that of Dagdu v. Kalu(1). In this case it was found that the
plaintiff had been admjttedly out of possession of the lands since
1881 and -the defendant had been in adverse possession of them
from that time until the date of suit October 2, 1895, with the
exception of a period of three years during which period he had
been dispossessed by one Barsu who wrongly alleged that l:e was
a donee of the plaintiffs. On that allegation the donee obtained
ppssession of the land under the decree of the court of first instance
but it was reversed by the High Court and the land was as a
reversal restored by the court to the defendant on 9th April 1895.
It was observed by the High Court that (p. 736) :
"The erroneous action of the Court of first instance
cannot, we think, prejudice the defendant, or put him in
a worse position· that he would have occupied, had the
erroneous decree not been made."
This decision too, in our opinion, does not help the appellants.
The possession of the defendants was disturbed by a wrong order
of .the court which was ultimately putright and the court no doubt
acted on the maxim that a litigant is not to be prejudiced by any
wrong order of the. court.
A faint attempt was made to re-agitate the question that the
auction sale of 1941 did not include the eastern portion. This in
our opinion is concluded by the finaing of the High Court already
noted.
(l) 22 Bombay 733.
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The last point put forward was that the plaintiffs had not
asked for possession in their plaint. This can be rejected summarily.
The prayers in the plaint not only
include one for
preliminary decree for partition but for the appointment of a commissioner for effecting partition of the property by separating.
the shares of the plaintiffs from those of the defendants in the suit
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property.
Clearly the plaintiffs were asking for demarcation of
the portion of the property which should be theirs as a result of
the partition. Imbedded in this prayer is a claim for possession.
In the result the appeal fails and is dismissed with costs.
V.P.S.
Appeal dismissed.