# RAI SAHIB DR. GURDITIAMAL KAPUR v. MAHANT AMAR DAS CHELA MAHANT RAM SARAN AND ORS

- **Citation:** [1965] 3 S.C.R. 433
- **Court:** Supreme Court of India
- **Decided:** 1965-03-19
- **Case number:** Civil Appeal No. 471 of 1963
- **Bench:** K. N. Wanchoo, J.R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rai-sahib-dr-gurditiamal-kapur-v-mahant-amar-das-chela-mahant-ram-saran-and-ors-3502
- **Pages:** 6

## Headnote

Mverse possession-Doubtftul whether Akhara, or its
Mahant
was oc<:Upancy tenant-Forfeiture of tenancy-Right of Mahant's successor to sue for possession,
The appellant was the owner of the suit land. Alleging that the
2nd respondent, who was the Mahant of an Akhara, was the occupancy tenant and that he had allowed his lessee to dig it up and
rendered it unfit for cultivation, the. appellant evicted the 2nd respondent from a part of the land in 194-0, and from the rest of it in
1943. In 1950, the 2nd respondent was removed from tbe office of
Mahan!, in proceedings under s. 92, C.P.C., and in 1953, the 1st respondent was appointed in his place. In 1957 the 1st respondent filed a
•uit for possession ot the land, alleging that the Akhara itself was
the occupancy tenant. The trial court decreed :the suit and the High
<:ourt confirmed the decree.
·
In the appe"l to this Court, the appellant contended that the suit
was barred by limitation.
HELD: Upon the eviction of the 2nd respondent the occupancy
right in the land merged in .the right of ownership of the appellant.
Apart from it, the actual physical possession of the land having been
continuously wi.n the appellant to the exclusion of the occupancy
tenant, . whether it was the 1st respondent or the Akhara itself, for a
period of more than 12 years before the institution of the suit, the
occupancy right was extinguished. If the 2nd respondent reJ)Tesented
the Akhara in the eviction proceeding the decrees therein would
bind the 1st respondent as his successor. If the 2nd respondent.did not
represent the Akhara, the possession of the appellant under those
decrees would be adverse to the Akhara. The 2nd respondent as the
Mahant, or the Receiver appointed by the Court in the s. 92 J)Toceedings, could have filed a suit on behalf of the Akhara, and so, the 1st
respondent's suit after 12 vears of adverse possession by the appellant was barred. [ 436D"E; 438F-H]
Sudaram Das v. Ram Kirpal, L.R. 77 I.A. 42 and Subbaiya v.
Mustapha, L.R. 50 I.A. 295, applied
Dwi;endra Narain Roy v. Joges Chandra De, A.I.R. 1924 Cir!, 600,
referred to.
CML APPELLATE JURISDICTION: Civil Appeal No. 471
of
1963.
.
Appeal by special leave from the judgment and decree dated
November 9. 1960 of the ·Punj:tb High Court in Regular Second
Appeal No. 1627 of 1960.
SUPREME COURT REPORTS
[1965] 3 s.c.it.
S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg,
A
D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant.
N.C. Chatterjee and M.S. Gupta, for respondent No. 1.
P.K. Chatterjee and RH. Dhebar, for respondent No. 11.

## Text

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RAI SAHIB DR. GURDITIAMAL KAPUR
v.
MAHANT AMAR DAS CHELA MAHANT RAM
SARAN AND ORS.
March 19, 1965
[K. N. WANCHOO, J.R. MUDHOLKAR AND S. M. S11w, JJ.)
Mverse possession-Doubtftul whether Akhara, or its
Mahant
was oc<:Upancy tenant-Forfeiture of tenancy-Right of Mahant's successor to sue for possession,
The appellant was the owner of the suit land. Alleging that the
2nd respondent, who was the Mahant of an Akhara, was the occupancy tenant and that he had allowed his lessee to dig it up and
rendered it unfit for cultivation, the. appellant evicted the 2nd respondent from a part of the land in 194-0, and from the rest of it in
1943. In 1950, the 2nd respondent was removed from tbe office of
Mahan!, in proceedings under s. 92, C.P.C., and in 1953, the 1st respondent was appointed in his place. In 1957 the 1st respondent filed a
•uit for possession ot the land, alleging that the Akhara itself was
the occupancy tenant. The trial court decreed :the suit and the High
<:ourt confirmed the decree.
·
In the appe"l to this Court, the appellant contended that the suit
was barred by limitation.
HELD: Upon the eviction of the 2nd respondent the occupancy
right in the land merged in .the right of ownership of the appellant.
Apart from it, the actual physical possession of the land having been
continuously wi.n the appellant to the exclusion of the occupancy
tenant, . whether it was the 1st respondent or the Akhara itself, for a
period of more than 12 years before the institution of the suit, the
occupancy right was extinguished. If the 2nd respondent reJ)Tesented
the Akhara in the eviction proceeding the decrees therein would
bind the 1st respondent as his successor. If the 2nd respondent.did not
represent the Akhara, the possession of the appellant under those
decrees would be adverse to the Akhara. The 2nd respondent as the
Mahant, or the Receiver appointed by the Court in the s. 92 J)Toceedings, could have filed a suit on behalf of the Akhara, and so, the 1st
respondent's suit after 12 vears of adverse possession by the appellant was barred. [ 436D"E; 438F-H]
Sudaram Das v. Ram Kirpal, L.R. 77 I.A. 42 and Subbaiya v.
Mustapha, L.R. 50 I.A. 295, applied
Dwi;endra Narain Roy v. Joges Chandra De, A.I.R. 1924 Cir!, 600,
referred to.
CML APPELLATE JURISDICTION: Civil Appeal No. 471
of
1963.
.
Appeal by special leave from the judgment and decree dated
November 9. 1960 of the ·Punj:tb High Court in Regular Second
Appeal No. 1627 of 1960.
SUPREME COURT REPORTS
[1965] 3 s.c.it.
S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg,
A
D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant.
N.C. Chatterjee and M.S. Gupta, for respondent No. 1.
P.K. Chatterjee and RH. Dhebar, for respondent No. 11.
The Judgment of the Court was delivered by
Mudholkar, J. 'fhe short point which falls to be considered
in this appeal by special leave from a judgment of the High Court
of Punjab dismissing the appellant's appeal in limine is whether the
suit for possession· instituted by the plaintiff-respondent No. 1 is
within time. There are ten respondents to the appeal out of whom
only two, the plaintiff-respondent No. 1 Amardas and respondent
No. 11 Union of India are represented .. While the appeal is contested by the first respondent it is supported by the Union of India.
The facts which are not disputed before us are briefly these:·
The appellant has a share of 122! /143! in the land in suit.
The occupancy tenant of this land is Akhara Nirbansar of Sultanwind Gate, Amritsar. The second respondent Ram Saran Das
was Mahant of this Akhara till the year 1950 when he was removed
by virtue of an order made by a civil court in a suit under s. 92 of
the Code of Civil Procedure, confirmed in appeal on September 11,
1950. On December. 29, 1953 respondent No. 1 was appointed as
Mahant in place of respondent No. 2.
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On September 15, 1939 the appellant instituted a suit in a
revenue court under ss. 38 and 39 of the Punjab Tenancy Act
(hereafter referred to as the Act) for possession of 141 kanals 8
marlas of land on the ground that he had granted a sub-lease thereof
for the manufacture of bricks to someone by utilising earth dug up
from that Janet This, according to the appellant, was in contraven- ·
tion of the provisions of s. 39 of the Act and entitled him to eject
respondent No. 2. The Revenue Court held that out of the land
sub-leased by respondent No. 2 only a certain portion was dug up
by the sub-Jessee and, therefore, the ejectment of the second respon- . G
dent was confined to that area of land which had been dug up. The
date of the ejectment decree was June 3, 1940. The second respon-
. dent preferred an appeal before the Collector from that decree
which was dismissed on October 19, 1940. Shortly thereafter the
appellant obtained possession of the· land from which the second
respondent was ordered to be ejected The lessee of the second respondent, however, continued to dig up the rest of the land and,
therefore, the appellant instituted a second suit for the ejectment
of the second respondent therefrom. The Assistant Collector who
tiied the suit granted a decree to the appellant· in respect of the
e1,1tire land which was left with the second respondent after he was
d1Spossessed from a part of the land leased to him unde rthe earlier
decree. In appeal, however, the Collector modified the order of
H
KAPUR v. AMAR l>A8 (Mudholkar, J.)
430
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ejectment by leaving out of the land 29 kanals and 14 marlas. This
order was made on May 31, 1943. Shortly thereafter the appellant
obtained possession of the land with respect to which the Collector
had confirmed the order of ejectment in the appeal.
On March, 18, 1957 the first respondent instituted a suit
n against the appellant and the second respondent. According to respondent No. I Akhara Nirbansar was not bound by the actions of
Mahant Ram Saran Das, the second respondent, which were tanta·
mount to alienation of the land which, according to him, were
neither for legal necess;ty nor for the benefit of the estate. He contended that on the contrary the action of Ram Saran Das in alienat-
. O ing the land was unauthorised and illegal and because what he did
was not for legal necessity nor for conferring any benefit on the
estate.
The appellant contested the suit on two main grounds. The
first was that the land in question was never attached to the Akhara
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hut that Mahant Ram Saran Das, the second respondent, was it.5
occupancy tenant and that as the sub-lessee of the land had dug it
up and rendered it unfit for cultivation the appellant as the owner
of the land was entitled to eject respondent No. 2 by forfeiting the
lease. He denied that the land was wakf property and contended
that the occupancy rights existing in favour of the second responE
dent were extinguished by the orders of the revenue courts which
still hold good. The second point was that as the appellant was in
continuous possession of the .land in suit as owner in his own right
for more than 12 years preceding the suit openly and to the exclusion of the second respondent and respondent No. I the suit was
barred by time.
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In his replication respondent No. I reiterated that the property
in suit belongs to and is owned by the Akhara Nirbansar as its
occupancy tenant and that the second respondent was never its
occupancy tenant. Therefore, according to him, there was no question of extinguishment of occupancy rights in consequence of the
two decrees made by the revenue courts. He contended that the
action of !he second respondent in leasing out the land for digging
up earth was a transfer which, not being for legal necessity nor for
the benefit of the estate, was unauthorised. According to him the
mere fact that the appellant was in possession of. the land for more
than 12 years makes no difference to the suit and that the land being
trust property a suit for its recovery could be brought within 12
years from the date of "death, resignation or removal" of the
manager of such a property. He added that there was no question
of the appellant being in possession in his own right of the land
for more than 12 years. The suit was decreed by the trial court and
its decision was uoheld in aopeal by the second Additional District
Judge, Amritsar. The appellant's second appeal was dismissed in
limine by the High Court,
·
. 436
SUPREME COURT REPORTS
[1965] 3 S.C.Re
Upon the view which we take on the question of limitation it
has become unnecessary to decide the other points.
The learned Solicitor General who appears for the appellant
relies strongly upon the averments of the appellant in his written
statement that he is occupying the land in suit for a period of over
12 years from the date of the institution of the suit as owner in his
own right and not as an occupancy tenant and that even if his
occupation is regarded to be that of an occupancy tenant as alleged
by the first respondent, he has acquired the proprietary rights in
this property by operation of statute. The Solicitor General relies
on the further averments to the effect that the original occupancy
tenant of the land was the second respondent and not the Akhara
and also contended that whether it was one or the other made no
difference. For, the tenant's occupancy rights were extinguis)led by
the decrees passed in the ejectment suits and consequently there
was no cause of action for the present suit As pointed out by the
learned Solicitor General, respondent N:o. 1 in his replication has
not disputed the fact that the appellant was in possession for more
than 12 years before the institution of the suit and that the only
way dn which he tried to meet it was by saying that this fact made
no difference to his case.
It seems to us clear that upon the eviction of respondent No. 2
from a part of the land in the year 1940 and the rest of it in the
year 1943 the occupancy right with respect to the land merged In
the right of ownership of the appellant. Apart from that it is clear
that the actual physical i;ossession of the land having been continuously with the appellant to the exclusion of the occupancy tenant,
whether it was respondent No. 1 or the Akhara itself. for a period
more than 12 years before the institution of the suit that right was
extinguished.
Mr. Gupta, learned counsel for respondent No. 1, however,
sought to meet this position by urging that the second respondent's
act amounted to an alienation, that it was not established that it
was for legal necessity and that, therefore, respondent No. 1 as the
successor of respondent No. 2 to the office of Mahantship of the
Akhara could institute a su,it within 12 years of his succession to
the office. This succession to his office must, according to him; be
deemed to have occurred when upon the dismissal in the year 1950
of the appeal preferred by respondent No. 2 against the decision of
the trial court removing him from Mahantship; later the respondent
No. 1 was appoinfed a Mahant. That was on December 12, 1953.
The suit having been filed within 12 years of that date, so Mr.
Gupta contends, must be held to be within time. The simple answer
to this contention is that what happened in this case was the forfeiture of the occupancy tenancy by t)le appellant as landlord .. In
no sense can this be regarded as, or even likened to alienation,
which is a voluntary act of the alienor in favour of the aEenee. The
appellant is thus not an alieriee from the respondent No. 2· Ram
Saran Das.
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KAPUR v. AMAR DAS
J.)
437
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Mr. N. C. Chatterjee who also appeared for the first respondent raised a novel contention. According to him, adverse possession against the Akhara, which was the real occupancy tenant, could
not commence till respondent No. 1 was appointed as Mahant because during the interval there was no person who was competent
to institute a suit on behalf of the Akhara for the possession of the
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lands of which the appellant was in adverse possession. In support
of the contention he has placed reliance upon the decision in
Dwijendra Narain Roy v. loges Chandra De('). In particular learned counsel has relied upon the following observations of Mookerjee
J., who delivered the judgment of the.Court. They are:
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"The substance of the matter is that time runs when the
cause of action accrues, and a cause of action accrues,
when there is in existence a person who can sue and another who can be sued ......... The cause of action ·arises
when and only when the aggrieved party has the right to
apply to the proper tribunals for relief. The statute (of
limitation) does not attach to a claim for which there is as
yet no right of action and does not ruri against a right for
which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to
determine when a cause of action has accrued is to ascer-
'tain the time when plaintiff could first have maintained his
action to a successful result." (p. 609).
He further brought to our notice that these observations have received the approval of this Court in F. Lakshmi Reddy v. L. Lakshmi
Reddy('), at p. 206. In the case which came up before this Court
the facts which are set out in the head note were as follows:
"V died an infant in 1927 and H, an agnatic relation
filed a suit for the recovery of the properties belonging to
V which were in the possess;on of third parties, on the
ground that he was the sole nearest male agnate entitled to
all the properties. During the pendency of the suit a Receiver was appointed for the properties in February, 1928.
The suit having been decreed H obtained possession of
the properties from the Receiver on January 20, 1930,
and after his death in 1936, his nephew, the appellant, got
into possession as H's heir. On October 23, 1941 the respondent brought the present suit for the recovery of a oncthird share of the properties from the appellant on the
footing that he and his brother were agnatic relations of
V of the same degree as H, that all th_e three were equal
co-heirs of V and that H obtained the decree and got into
possession on behalf of all the co-heirs. The appellant resisted the suit and contended that the respondent
lost his right by the adverse possession of H and Ii.is successor and that· for this purpose not only the period from
(') A.I.R. 1924 Ca.I. 600.
(1) [1957] S.C.R. 195.
438
SUPREME COURT REPORTS
[1965) 3 s.c.R.
January 20, 1930 to October 23, 194i was to be counted
but also the prior period when the Receiver was in possession of the properties during the pendency of H's suit.
It was found that the respondent's case that H obtained
the decree and got possessfon from the Receiver on behalf of the other co-heirs was not true."
A
The facts of that case were different and it was on these facts that B
this Court held that the respondent did not lose his right by adverse
possession. It is in the context of these facts that the learned Judges
cited with approval the observations of Mookerjee J., which we
have set out. Assuming these observations are sound, it cannot be
said in the case before us that i:t any point of time there was no
person who was competent to institute a suit on behalf of the
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Akhara. Respondent No. 2 was still the Mahant and could well
have instituted a suit on behalf of the Akhara if in fact there was
any cause ·of action for such a suit. Further, in the course of the
suit the possession was with a Receiver who had been appointed
by the court and was thus competent in law to institute a suit.
We· may point out that a Mahant of an Akhara represents the D
Akhara and has both the right to institute a wit on its behalf as
also the duty to defend one brought against it. The law on the subject has been stated very clearly at pp. 274 and 275 in Mukherjea's
Hindu Law of Religious and Charitable Trust, 2nd, ed. It is poinied out that in the case of an execution sale of debutter property it
is not the date of death of the incumbent of the Mutt but the date E
of effective possession as a result of the sale from which the commencement of the adverse possession of the purchaser is to be computed for the purposes of art. 144 of the Limitation Act. This is in
fact what the Privy Council has laid down in Sudarsan Das v.
Ram Kirpal ('). A similar view has been taken by the Privy Council
in Subbaiya v. Mustapha('). What has been said in this case would
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also apply to a case such as the present. Thus if respondent No. 2
could be said to have represented the Akhara in the two earlier
suits, decrees made in them would bind the respondent No. l as he
is successor in office of respondent No. 2. On the other hand if respondent No. 2 did not represent the Akhara, the possession of the
appellant under the decree passed in these suits would clearly be
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adverse to the Akhara upon the view taken in the two decisions of
the Privy Council just referred to. The first respondent's suit having
been instituted after the appellant has completed more than 12 years
of adverse possession must, therefore be held to be barred by time.
For these reasons disagreeing with the courts below we set aside
the 'decrees of the courts below and instead dismiss the suit of respondent No. 1 with costs in all the courts.
11
(1) L. R. 77 I:A. 42.
{') L.R. Ill) I.A. 295.
Appeal allowed,
•