Ramlal vs Rohidas And Ors

Sanjay K. Agrawal, J

The substantial question of law involved, formulated and to be answered in the second appeal preferred by the plaintiff is as under:-

"Whether the lower appellate Court erred in law in holding that the suit was barred by limitation and the finding in this regard is perverse ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

The suit property was purchased in the name of minor plaintiff by his guardian mother-Hiroundibai and in the name of Bhurwa-father of defendants No.1 and 2 on 25.8.1958 and thereafter Hiroundibai executed agreement to sale (Ex.D/2) in favour of Bhurwa-father of defendants No.1 and 2 to alienate the suit land. Thereafter, the plaintiff, son of Hiroundibai, filed a suit claiming declaration that he has ½ share in the suit property and entitled for declaration as his mother has no right to transfer his land without permission from the Collector which is void.

The defendants filed their written statement denying the plaint allegations stating inter-alia that vide Ex.D/2 the plaintiff's mother has transferred the suit land in favour of Bhurwa, father of defendants No.1 and 2 on 9.1.63 by way of un-registered sale deed and since then he is in possession of the suit land and therefore, the defendants have perfected their title by way of adverse possession. It was further pleaded that suit ought to have been within 12 years from the date of attaining the age of majority by the plaintiff and the plaintiff become major in the year 1965 and suit was filed on 22.11.1991, which is hopelessly barred by limitation. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 5.9.2001, held that the plaintiff has ½ share in the suit property and directed for delivery of possession and injunction, which was reversed by the First Appellate Court on appeal preferred by the defendants holding that suit was hopelessly barred by limitation, against which, this second appeal under Section 100 of the CPC has been filed by the appellants/plaintiffs, in which substantial question of law has been formulated by this Court, which has been set-out in the opening paragraph of this judgment.

Mr.D.N.Prajapati, learned counsel for the appellant/plaintiff, would submit that the First Appellate Court is absolutely unjustified in dismissing the suit as barred by limitation as the plaintiff has established his title over the suit land and the defendants having been failed to prove adverse possession, the trial Court has rightly granted decree in favour of the plaintiff. He would further submit that even otherwise, possession pursuant to the agreement (Ex.D/2), can never be adverse possession. He relied upon the judgment of the Supreme Court in the matter of Achal Reddi v. Ramakrishna Reddiar and others AIR 1990 SC 553, which was followed by this Court in the matter of Dularam (Deceased) through his LRs. Smt. Tulasi Bai & others v. Jashpal Singh & another 2014(2) C.G.L.J. 374.

On the other hand, Mr.Shobhit Koshta, learned counsel for respondents No.1 to 3/defendants, would submit that possession of the defendants is referable to the document (Ex.D/2) i.e. agreement to sale and therefore, from the date of said sale, their adverse possession has commenced and therefore, suit having been filed after 12 years from the date when the defendants came in possession over the suit land and it is apparently barred by limitation, which has rightly been held by the First Appellate Court. He would further submit that suit ought to have been filed within 3 years from the date of agreement to sale (Ex.D/2), as such, the second appeal deserves to be dismissed.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

The suit filed by the plaintiff was decreed by the trial Court holding that Ex.D/2, which is only agreement to sale, has not conferred any title as defendants No.1 and 2 are successor-in-interest of Bhurwa and the defendants have failed to prove the plea of adverse possession, which has been reversed by the First Appellate Court holding that alienation made by the plaintiff's mother Hiroundibai is in accordance with law.

The question is construction of Ex.D/2, an agreement to sale or sale conferring title to Bhurwa/now defendants No.1 to 3.

In order to understand the true nature of the document, it would be appropriate to reproduce contents of Ex.D/2, which states as under:-

करारनामा इकरार नामा लिखा दी मै हिरोदीबाई जौजे सोमा गोड़ वली तरफ से नाबालिग लड़का रामलाल उमर 14 साल वल्द सोमा गोड़ काशतकार मौजा बनोरा तहसील धमतरी जिला रायपूर (1) यह कि मै अपने नाबालिग लड़के के नाम से जो जमीन भुरवा गोंड़ के साथ खरीदी थी उस चुकता जमीन को भुरवा गोंड़ को याने मेरे दामाद को 400 रू में बेचने की पक्की बातचीत कर व 100रू (सौ रूपिया) बतौर ब्याने के लेकर जमीन याने 4 ए. 80 डेसमिल (चार एकड़ अस्सी डेसमिल) जमीन को चुकता बेच दी. भुरवा वल्द जुगरू गोंड़ काशतकार मौजा बटनटर्रा प.ह.न. 86 तहसील धमतरी जिला रायपूर वाले को यह कि बाकी 300रू (तीन सौ रूपिया) रजिस्ट्रार सा0 धमतरी के रजिस्ट्री के समय लूगी अगर रजिस्ट्री कराने में टोला हवाला करूंगी तो नुकसानी की देनदार रहूगी भुरवा गोंड़ जब चाहे रजिस्ट्री करवा सकता है इकरार नामा अपने होश हवाश व साथ तन्दुस्ती व बगैर नशा पानी खाये व बगैर किसी के सिखाय पढ़ा चन्द गवाहों के साम्हने लिखा दी सो सही है।

A careful perusal of Ex.D/2 would show that on behalf of minor plaintiff, his mother Hiroundibai entered into agreement to sale the suit land area 4.80 acres with Bhurwa Gond for cash consideration of ₹ 400/- and obtained ₹ 100/- and promised to execute sale deed after getting ₹ 300/- from said Bhurwa Gond. The said agreement is executed on 9.1.63 and it is out and out agreement to sale/contract for sale. Section 54 of the Transfer of Property Act, 1882 (hereinafter called as 'TP Act") states as under:-

"54. "Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.

Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

It is well settled law that agreement to sale does not create any right or title in favour of intending buyer. (See Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383.). Thus, agreement to sale is merely a document creating a right to obtain another document of sale on fulfillment of terms and conditions specified therein. On the strength of such an agreement a buyer does not become the owner of the property. The ownership remains with the seller. The buyer obtains only a right to get the sale deed executed in his favour.

In the instant case, it is only contract for sale or agreement to sale. By no stretch of imagination, it can be branded as sale. It does not fulfill the requirement of sale as defined in Section 54 of the TP Act which clearly states that transfer in the case of tangible immoveable property of the value one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Undisputedly, Ex.D/2 is only an contract for sale and it did not create any interest or charge in immoveable property in favour of Bhurwa Gond and therefore, the defendants' father Bhurwa had no right and title in the suit land on the strength of said Ex.D/2 agreement to sale. Therefore, the finding recorded by the First Appellate Court that plaintiff's mother Hiroundibai sold the suit land in favour of Bhurwa, father of defendants No.1 and 2, is absolutely perverse and runs contrary to the provisions contained in Section 54 of the TP Act and in view of fact that contract for sale does not itself create any right or charge on such property.

Now the question for consideration would be whether the First Appellate Court is justified in holding that the suit is barred by limitation ?

The plaintiff's suit was for declaration of title and possession based on the fact that he is title-holder of the suit land. In that case, Article 65 of the Limitation Act, 1993 would apply.

Article 65 of the Limitation Act, 1993 states as under:-

Description of suit Period of Time from which limitation period begins to run 65 For possession of Twelve years When the possession immovable property of the defendant or any interest becomes adverse to therein based on title. the plaintiff

In the matter of Indira v. Arumugam and Another (1998) 1 SCC 614, Their Lordships of the Supreme Court while considering Article 65 of the Act of 1963 have held that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendants proves adverse possession for the prescriptive period, plaintiff cannot be non-suited.

In a suit for possession based on title, the plaintiff is called upon to prove title and nothing more than that and it is for the defendant to set up the plea of adverse possession and to prove that plaintiff was not in possession of property within 12 years next before the suit and that the defendant has established or acquired the title by adverse possession regarding which there must be specific plea that it was, nec vi, nec clam, nec precario viz open, hostile and adverse.

Now the question is whether the defendants have perfected their title by way of adverse possession ?

It is the claim of the defendants that pursuant to the agreement (Ex.D/2) they came in possession on the execution of said contract for sale on 9.1.63 and both the Courts below have also recorded a finding that the defendants are in possession of the suit land. The defendants in para-9 of their written statement also set up a plea based on contract for sale dated 9.1.63.

The question is whether possession of the defendants pursuant to the agreement to sale can be said to be adverse possession or whether it is permissive possession and cannot be adverse possession ?

In the matter of The State Bank of Travancore v. Aravindan Kunju Panicker and others (1972) 4 SCC 274, Their Lordships of the Supreme Court have held that "a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years of more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before he present suit".

Similarly, in the matter of Thakur Kishan Singh (dead) v. Arvind Kumar (1994) 6 SCC 591, the Supreme Court has held that "as regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee 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 real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession".

In the matter of Roop Singh (dead) Through LRs v. Ram Singh (dead) Through LRs (2000) 3 SCC 708, Their Lordships of the Supreme Court have held that "if the defendant got the possession of suit land  as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. (Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591).

The Supreme Court in the matter of Mohan Lal (deceased) through His LRS. Kachru and others v. Mirza Abdul Gaffar and another (1996) 1 SCC 639 has held that the appellant's first plea of adverse possession is inconsistent with the second plea. Regarding retention of possession under Section 53-A of Transfer of Property Act. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

It is well settled that a person claiming to be in possession under the agreement to sell, his possession would be permissive possession and he cannot be permitted to contend that his possession is adverse and he has perfected his title by way of adverse possession.

The Supreme Court in the matter of Achal Reddi (supra) has held as under:-

"8. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate court as well as the second appellate court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concur- rent findings that the plaintiff had title inspite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, there- fore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex. A. 1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regard- ed 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 a lawful title. The purchaser who got toto possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which, there is a mere executory agreement of trans- fer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced 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."

Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in the above-stated judgments including Achal Reddi (supra) and Mohan Lal (supra), it is quite vivid that the defendants have claimed that they came in possession pursuant to the agreement to sale dated 9.1.63 (Ex.D/2) and still in possession which has perfected their title by way of adverse possession. In the matter of Achal Reddi (supra), the Supreme Court has clearly held that adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of the defendants's possession over the suit land is legal and proper, referable to a contract, it cannot be adverse. The defendants' father admittedly came into possession pursuant to agreement to sale dated 9.1.63 (Ex.D/2) and thereafter, he did not do anything to get the sale deed executed and remained in possession on the strength of Ex.D/2, as such, his possession is referable as permissive possession as held in Mohan Lal (supra) and therefore, the First Appellate Court is absolutely unjustified in holding that the plaintiff has no title over the suit land and suit is barred by limitation as the plaintiff is title-holder of the suit land and the defendants have failed to prove adverse possession as their possession is permissive possession and therefore, the First Appellate Court is absolutely unjustified in granting the appeal and dismissing the suit instituted by the plaintiff. The substantial question of law is answered accordingly.

For the foregoing reasons, the judgment and decree of the First Appellate Court is hereby set aside and that of the trial Court is hereby restored.

The second appeal is allowed to the extent indicated hereinabove. No cost(s).

A decree be drawn up accordingly.