Registrar, NTR University of Health Sciences, Vijayawada vs Dr. G. Babu Rajendra Prasad and another

This Judgment has been overruled by : N.T.R. University of Health Sciences, Vijaywada Vs. G. Babu Rajendra Prasad and Another, AIR 2003 SC 1947 : (2003) 3 SCALE 54 : (2003) 5 SCC 350 : (2003) 2 SCR 781 : (2003) AIRSCW 1438 : (2003) 2 Supreme 549

N.Y. Hanumanthappa, J.—This appeal is directed against the judgment and decree dated 5-9-1998 passed in OS No.161 of 1989 on the file of the IV Additional Senior Civil Judge, City Civil Court, Hyderabad.

The above suit was filed by M/s. Kamakshi Builders, a partnership firm represented by its partner R.S. Rangadas for the following reliefs: to pass a decree against defendants 1 and 2 (i) for possession of the suit property viz., Western portion of Building bearing No. 1-8-1, situated at Bagh Lingampally, Hyderabad consisting of plinth area of 780.0 sq.yards with an open yard of 2196.0 sq.yards, totalling to 2976.0 sq.yards, (ii) for damages at the rate of Rs.21,000/- per month from 16-12-1988 till the date of delivery of the possession of the suit schedule property; (iii) for arrears of rent of Rs.43,200/- and (iv) for damages for the use and occupation @ 21,000/- per month during the pendency of the suit till the delivery of possession. After enquiry the Court below decreed the suit in part directing the defendants 1 and 2 to deliver possession of the suit schedule property and further directing the defendants to pay damages of Rs.3,000/- per month from the date of Ex.A7 till the date of delivery of possession subject to payment of Court fee. The Court granted three months time to deliver possession of the plaint schedule property. Aggrieved by this, the 1st defendant filed this appeal.

The rank of the parties is as before the Court below.

A few facts as averred in the plaint, which are necessary to dispose of this appeal are as follows : Sri Nawab Mohd. Misbahuddin Khan (defendant No.3) was the owner of the suit schedule premises. The entire Bhaglingampally area, where the suit schedule property forms part of it, was the subject matter of the suit schedule property in CS No.14 of 1958 on the file of the High Court of Andhra Pradesh. In pursuance of the orders of the High Court passed in Application No.73/70, dated 29-1-1971 and subsequent orders passed thereon in CS No. 14 of 1958, a portion of the schedule property therein was partitioned between the parties to the said suit. In the said partition, the present suit schedule property was allotted to the sole and exclusive share of the 3rd defendant, namely Nawab Mohd. Misbahuddin Khan. After possession of the suit schedule property was delivered to the 3rd defendant he let out the same to Dr. Ambedkar Educational Society (1st defendant) under a lease agreement dated 16-5-1973 for a period of 11 months, on a monthly rent of Rs. 1,200/-. The lease expired already. While so the 3rd defendant with a view to develop the schedule property entered into partnership with the plaintiff and a deed was executed between them on 1-4-1986. Thereafter some disputes arose between the plaintiff and the 3rd defendant and by an agreement dated 25-7-1987 Sri T. Nagarajan was appointed an arbitrator for adjudicating the disputes who passed an award, which was registered in the office of the District Registrar, Hyderabad, awarding a sum of Rs.4,00,000/-in favour of the 3rd defendant towards his share in the partnership viz., the suit premises, contributed by him as a stock in trade and as the partnership asset viz., the suit property which was awarded in favour of the plaintiff as 3rd defendant retired from the partnership. The arbitrator sent the award to the Court which was numbered as OS No.2193 of 1987 on the file of the V Additional Judge, City Civil Court, Hyderabad, to make the award as rule of the Court. The Court after service of notices passed a decree dated 29-2-1988 making the award the rule of the Court. Thus, the plaintiff has become the sole and absolute owner of the suit property. Thereafter the 3rd defendant issued a notice on 22-11-1987 to the 1 st defendant to pay the rent with all the arrears to the plaintiff which was received by the 1st defendant on 22-12-1987. But the 1st defendant did not pay the rent inspite of notices for the last ten years either to the 3rd defendant or to the plaintiff. The plaintiff got issued a notice to the 1st defendant informing the transfer of title over the schedule property in his favour and further informing therein that the 1st defendant fell in arrears of rent for the last ten years; that the 1st defendant committed breach of Clauses 10 and 11 of the lease deed, by raising unauthorised constructions and sub-letting the premises to the 2nd defendant-bank. Thus informing, the plaintiff terminated the lease and asked the 1st defendant to vacate the schedule premises and hand over the same to the plaintiff on the expiry of the tenancy month ending on 15-12-1988. The 1st defendant was further informed that if it fails to vacate the schedule premises as indicated above, it is liable to pay damages at the rate of Rs.21,000/- per month. The said notice was received by the 1st defendant on 5-11-1988 and it replied on 8-12-1988 adopting dilatory tactics. According to the plaintiff, the 1st defendant is only a lessee as per the lease agreement. It committed wilful default of payment of rent for the last ten years. It sublet the suit property unauthorisedly to the 2nd defendant and it has been carrying on unauthorised constructions. Thus he committed breach of the terms of the lease deed. Though the plaintiff determined the lease by a notice dated 30-10-1988, the 1st defendant did not vacate the suit schedule premises. Since the possession of the 2nd defendant as sub-tenant is an unauthorised one, it is liable to be evicted and also liable to pay damages for use and occupation of the suit premises.

The 1st defendant filed its written statement denying the allegations in the plaint. It is stated that the 1st defendant-society has been created with certain aims and objects of providing education to the weaker sections of the society and helping poor students by giving money, books, etc., and 3rd defendant having been impressed with the objects and aims of the 1 st defendant and in view of his close intimacy with Sri G. Venkata Swamy, President of the 1st defendant-college he orally gifted the suit schedule property to the 1st defendant on 1-10-1975 in the presence of P. Govinda Rao, M. Anandam, a Chartered Accountant and M.P., G. Venkata Swamy and the said oral gift was accepted by the 1 st defendant, represented by its Joint Secretary. By the date of oral gift, the 1st defendant was already in possession of the suit properly. The 3rd defendant subsequently confirmed the said oral gift by a letter dated 14-9-1980. By virtue of oral gift, 1st defendant did not pay any rent since 1-10-1975. Subsequent to the gift the 1st defendant raised some constructions like Lab, Class rooms, etc., and paying water cess, municipal tax and electricity charges as the owner of the schedule premises. Since 1-10-1975 the 1st defendant has been in peaceful possession and enjoyment of the suit schedule property without any interruption or obstruction from whomsoever as absolute owner thereof openly to the knowledge of the 3rd defendant and the plaintiff for more than 12 years and thereby the 1st defendant perfected its title over the schedule property by way of adverse possession alternatively. The plaintiff and the 3rd defendant colluded together to grab the schedule property and to circumvent the provisions of Urban Land (Ceiling and Regulations) Act, 1976. In 1986 when third parties tried to make a false claim over the schedule property, the 1st defendant issued a public notice in all the leading news papers asserting that the schedule property belongs to the 1st defendant and warning the public not to enter into any transactions with the so called third parties. This fact was known to the 3rd defendant and the plaintiff, yet they collusively brought into existence the make believe documents to deprive the 1st defendant of its right, title and interest over the schedule property. The 1st defendant in its reply sent to the 3rd defendant also asserted that the 1st defendant is not his tenant. There is no landlord and tenant relationships between them and as such 1st defendant is not liable to pay any rents. The 1st defendant in its interim reply dated 8-12-1988 also informed the plaintiff that the 1st defendant is the absolute owner of the property in question and the 3rd defendant has no manner or right of whatsoever over the schedule property and as such he cannot transfer the schedule property in favour of anybody and even if any transfer has been made in favour of the plaintiff as alleged, the same is void abinitio. The claim made in the notice issued by the plaintiff is false and an incorrect one. Though the 1st defendant requested the plaintiff in his interim reply dated 8-12-1988 to furnish the copies of the documents to enable the 1st defendant to send a suitable reply, the plaintiff did not send any documents. The ist defendant denied the lease said to have been attorned in favour of the plaintiff. The 1st defendant being the lawful owner of the suit schedule property let out a portion of the schedule premises to the 2nd defendant-bank. The alleged termination of lease by the plaintiff is null and void. As there was no lease at all, violation of terms and conditions of lease does not arise. There is no cause of action to file the suit. The valuation of the suit is not correct. The suit is barred by time. The 1st defendant is alone in possession and enjoyment of the schedule property for more than 12 years and thus it has perfected its title by way of adverse possession. Neither the plaintiff nor the 3rd defendant through whom the plaintiff is claiming title over the schedule property, has any right over the suit schedule property. It was further stated that originally when the land acquisition proceedings were initiated at the instance of the A.P. Housing Board, to acquire the suit schedule property and the neighbouring property on the representation made by the 1st defendant, the Government and the A.P. Housing Board agreed to exclude the same from acquisition proceedings, for the purpose of the 1st defendant school and college. The Government and the A.P. Housing Board in G.O. Rt. No. 1734, Education (J) Department, dated 11-10-1976, denotified the acquisition proceedings on the 1st defendant depositing a sum of Rs.4 lakhs. The Special Officer and Competent Authority under Urban Land Ceiling Act in consultation with the District Collector, Hyderabad has initiated steps for exemption of land and buildings in the possession of the 1st defendant. As such the Government and the A.P. Housing Board as well as the Special Officer and Competent Authority are proper parties to the suit. As such the suit is bad for non-joinder of necessary parties. The transaction between the plaintiff and the 3rd defendant is null and void as the same is hit by the provisions of Urban Laud (Ceiling and Prohibition) Act, 1976. The plaintiff has no locus standi to file the suit. In its additional written statement, the 1st defendant stated that the plaint schedule property as amended and shown in the plan attacked to the amended plaint is baseless and not supported by any document. The amendment of plaint regarding schedule of property is hopelessly barred by limitation and hence the same is liable to be rejected.

The 3rd defendant filed his written statement supporting the averments made in the plaint. He further stated that he never gifted the schedule property to the 1st defendant at any time nor had he thought of parting with the property with the 1st defendant at any time. The so called oral gift pleaded by the 1st defendant is false and bogus. The theory of so called oral gift is invented by the 1st defendant to escape from the consequences of the transfer of the property in favour of the plaintiff. The 1st defendant was a tenant of the schedule property and paying rents to him. He never confirmed any gift on the 1st defendant as contended.

On the basis of the above pleadings, the Court below framed the following issues:

(1) Whether the oral gift by the third defendant in favour of the 1st defendant is true and valid and binding on the plaintiff ?

(2) Whether the documents relied by the plaintiff are brought into existence in between the plaintiff and 3rd defendant in the circumstances alleged in the written statement ?

(3) Whclher the 3rd defendant has no right to sell the suit property to the plaintiff?

(4) Whether the plaintiff is entitled to possession ?

(5) Whether the plaintiff is entitled for the past and future mesne profits as claimed ?

(6) Whether the suit is properly valued and the Court fee paid is sufficient ?

(7) To what relief ?

Before the Court below, the plaintiff examined himself as PW! and got marked Exs.A1 to A15 on his behalf. Ex.A1 is the acknowledgment of Registration of Firm. Ex.A2 is the original lease deed dated 16-5-1973. Ex.A3 is the certified copy of the decree passed by V Additional Judge, City Civil Court, Hyderabad. Ex.A4 is the letter dated 22-11-1987 issued by the 3rd defendant to the 1st defendant. Ex.A5 is the office copy of the notice dated 30-10-1988. Ex.A6 is the postal acknowledgment of the 1st defendant. Ex.A7 is the letter dated 8-12-1988 reply notice. Ex.A8 is the order passed by the High Court dated 1-12-1972. Ex.A9 is the deed of partnership dated 29-12-1987. Ex.A10 is another partnership deed dated 1-4-1986. Ex.All is the certified xerox copy of the decree in OS No.2193 of 1987 on the file of the V Additional Judge, City Civil Court, Hyderabad. Ex.A12 is the award. Ex.A13 is the certificate of market value of the suit property. Ex.A14 is the certified copy of extract of Registrar of Firm showing the names of partners including 3rd defendant. Ex.A15 is the certified copy of Form ''A'' of the firm.

On behalf of the defendants, M/s. Amarender Naidu, G. Venkataswamy, Govindarao Padyalke and M. Anandam were examined as DWs. 1, 2, 3 and 4 respectively and Exs.B1 to B15 were marked. Ex.B1 is the certificate of registration. Ex.B2 is the original letter dated 19-9-1973 for permission to start a degree college. Ex.B3 is the permission of Board of Intermediate Education given to defendant No.1. Ex.B4 is the letter dated 18-12-1977 admitting the college of 1st defendant society for grant-in-aid. Ex.B5 is the letter dated 26-5-1978 from Osmania University granting permanent affiliation to the college run by the 1st defendant society. Ex.B6 is the sanctioned plan obtained by the 1st defendant society from MCH for construction of library building. Ex.B7 is the letter dated 7-8-1993 from Osmania University to 1st defendant society for starting B.Sc. course. Exs.B8 and B9 are the original receipts issued by MCH for property tax. Ex.B10 is the GO dated 31-8-1994 issued to the 1st defendant society for starting M.Com. course. Ex.B11 is the letter from Osmania University granting affiliation for the M.Com. course commenced by the 1st defendant society. Ex.B12 is the letter dated 26-9-1997 from A.P. Housing Board demanding payment of Rs.3,000/- towards water charges. Ex.B13 is the receipt for Rs.3,000/-. Ex.B14 is the electricity bill dated 3-3-1997. Ex.B15 is the receipt issued by APSEB in respect of Ex.B 14.

The Court below first proceeded to decide the ownership of the plaintiff over the schedule property. It took into consideration Ex.AlO, the partnership deed dated 1-4-1986 between the plaintiff, his daughters and the 3rd defendant, Ex.A12 the award passed by the Arbitrator, Ex.A11 the decree passed in OS No.2193 of 1987 on the file of the V Additional Judge, City Civil Court, Hyderabad, making the Ex.A 12 award as rule of the Court. According to the trial Court, Ex.A10 partnership deed was registered under the Partnership Act and its genuineness or otherwise cannot be challenged by the 1st defendant that too in a proceeding of this suit. The appointment of Arbitrator and his passing of award under Ex.A12 and its registration under the Indian Registration Act u/s 17, cannot be questioned in the present suit as the suit was filed for eviction of 1 st defendant and not for setting aside the partnership deed or the award Ex.A 12 nor for cancellation of the decree Ex.All. The Court below observed that the defendant No.l though had knowledge at the time of receiving Ex.A5 notice i.e., in the year 1988 about the existence of Exs.A10, A11 and A12, he did not choose to challenge the same at the relevant time and as such he cannot now blow hot and cold contending that those documents are not genuine. Ex.A11 the decree has to be given effect to as the proceedings under Ex.All have become final.

As far as the oral gift pleaded by the 1st defendant is concerned, the trial Court observed that the burden to prove the oral gift lies heavily on the 1st defendant. It took- into consideration the evidence of DWs. 1 to 4 who were said to have witnessed the alleged oral gift. The Court below observed that as admitted by DWs.l to 4 there was no mutation effected after the alleged gift on 1-10-1975. The minutes of the 1st defendant society did not contain any resolution regarding the said oral gift. The 1st defendant being a registered society and DW4 being a Chartered Accountant have not made any declaration before the Urban Land Ceiling Authority about the gift and no minutes were produced. Even in Ex.A7 the reply given by the 1st defendant no whisper was made about the oral gift. Thus observing, the Court below held that the alleged oral gift is not believable. The Court below further held that there was no document to show the confirmation of the gift as pleaded by the 1st defendant nor was there any document to show that either the alleged donor, the 3rd defendant, or the alleged donee, the 1st defendant, has paid the gift tax. Had the 3rd defendant really gifted the schedule property, the donee would have paid gift tax. The Court below found another circumstance in favour of the plaintiff, namely, if really the 3rd defendant had intention to gift the suit schedule property he being a Muslim person would have gifted the same to some Muslim minority institution or atleast he would have insisted for some percentage of reservation to the Muslim community before he gifted away the property to a non-Muslim institution. The Court below doubted the alleged oral gift for another reason that the 3rd defendant succeeded to the schedule property after a long battle of litigation up to the High Court and as such he would not have gifted away the property within two years after he got the property from the Court litigation. Thus according to the Court below the alleged gift is not free from doubt. Another strong circumstance which the Court below took into consideration is that if really the gift came into existence on 1-10-1975, why the 1st defendant society paid rents till about 1976, October for nearly one year thereafter. There is no whisper of the alleged gift either in the Minutes or in the annual report of the College day function. There is no correspondence by the 1st defendant to the University Grants Commission, Osmania University, Urban Land Ceiling Authority, Registrar of Co-operative Societies, MCH, before obtaining permission for construction or any other public authority stating that the 1 st defendant has become, the owner of the suit land by virtue of oral gift. With regard to the evidence of DWs.1 to 4 who spoke about the alleged oral gift, the Court below held that they are all interested witnesses, closely related to each other and beneficiaries of the 1st defendant institution. Except the evidence of these witnesses, there is no other evidence to believe the alleged oral gift.

Regarding rents, the Court below observed that the contention of the 1st defendant that the 3rd defendant did not demand rents itself goes to show that it is in continuous possession of the schedule property by not paying the rents and it is the duly of the 1st defendant to pay rents regularly. According to the Court below, Ex.A4 goes to show that the 3rd defendant wrote a letter to the 1st defendant asking to pay rents to the plaintiff and the same was received by the 1st defendant but it did not choose to reply. Even though in the written statement it is stated that they gave reply to Ex.A4, the same is not produced before the Court. Ex.A5 notice also shows that there was a demand for payment of rent and to vacate the schedule premises.

As regards adverse possession pleaded by the 1st defendant, the Court below observed that the 1st defendant was sought to be evicted under Ex.A2 by 3rd defendant and the suit property was allotted to the plaintiff under Ex.A3, the 3rd defendant sent a letter under Ex.A4 asking the 1st defendant to pay rents to the plaintiff. As such the 1st defendant cannot claim adverse possession. The Court below further observed that originally the suit premises was given to the 1st defendant for rent on lease and thereafter he failed to pay the rents. Hence its possession of the schedule premises is unauthorised, as such it cannot be permitted to continue in possession in view of the observations made by their Lordships in Ram Nath and Others Vs. Neta, and Thakur Kishan Singh v. Arvind Kumar 1995 (1) APLJ 18 (SC) that the defendants are not entitled for the plea of adverse possession.

Under issue No.3, the Court below held that by virtue of the decree at Ex.A3 making the award as rule of the Court the 3rd defendant became the owner of the schedule property and as such he can sell away the schedule property in the manner it likes. Under issue No.4, the Court below held that the possession of the I st defendant is only a tenant without paying rents as such his possession is illegal and the plaintiff is entitled for possession of the property.

Under issue No.5, the Court below observed that though the plaintiff claimed Rs.21,000/- towards use and occupation of the schedule premises, he failed to produce cogent evidence to the satisfaction of the Court to establish that the claim by him is reasonable. However in view of the admissions made by Ihe 1st defendant that the 3rd defendant gave the premises at the rate of Rs.1,200/- per month and in view of the fact that the 1st defendant sub-let a portion of the suit premises on a monthly rent of Rs.3,000/-, the Court below directed the defendants 1 and 2 to pay the rent of Rs.3,000/- for the use and occupation of the schedule premises. Regarding arrears of rent, the Court below observed that as no evidence was let in showing from what period to what period the rents were due, the plaintiff is not entitled for the said relief. Under issue No.6, the Court below held that the defendant failed to establish that the Court fee paid by the plaintiff is insufficient.

Thus observing the Court below passed a decree partly directing defendants I and 2 to deliver the possession of the suit schedule property to the plaintiff and further directing defendants 1 and 2 to pay damages of Rs.3,000/- per month from the date of Ex.A7 till the delivery of possession subject to payment of Court fee. The Court below dismissed the rest of the claim of the plaintiff. The Court below granted three months time for delivery of possession. Aggrieved by this judgment and decree, the 1st defendant filed this appeal.

On behalf of the 1st defendant-appellant attacking the judgment of the Court below, it was urged before this Court that the Court below committed a mistake in recording the finding that the plaintiff acquired title over the suit schedule property under Ex.A3 though the 1st defendant asserted and proved that it acquired the right and title over the suit schedule property by virtue of oral gin. The Court below grossly erred in coming to the conclusion that the plaintiff became the owner of the property; on the strength of Ex.A9 partnership deed entered and registered between the plaintiff and the 3rd defendant; the award passed by the arbitrator under Ex.A12; Ex.A10 another partnership deed and Ex.A11 the copy of the decree in OS No.2193 of 1987 on the file of the IV Additional Judge, City Civil Court, Hyderabad, without noticing that the 1st defendant was not a party to the said partnership deed and to the proceedings under Ex.A11 decree and Ex.A12 award. The Court below committed a mistake in not noticing that there was no privity of contract between the 1st defendant and the 3rd defendant so as to bind the 1st defendant with the terms of the partnership between the 1st defendant and the plaintiff. The Court below is not justified in holding that the 1st defendant did not reply to the notice issued by the plaintiff well in time nor there is any reference in the subsequent reply sent as to the gifting of the property by the 3rd defendant in favour of the 1st defendant. The assumption of the Court below that the defendant being a Muslim person should not have gifted the schedule property to a non-Muslim institution i.e., the 1st defendant, that too without insisting for any reservation in the matter of selections, appointments and admissions, and also the observation that there is no mention in any of the letters addressed by the 1st defendant institution to the University Grants Commission, Osmania University, Municipal Corporation and the Urban Land Ceiling authorities stating that the 1st defendant acquired the schedule property by virtue of an oral gift given by the 3rd defendant in its favour, are quite incorrect. The finding of the Court below that if gift had really taken place in favour of the 1st defendant there would have been a mention in the minutes of meetings of the 1st defendant society is incorrect. As there is no privity of the contract between the 1st defendant and the 3rd defendant, the decree that was obtained by the plaintiff in Ex.A11 had not transferred whatever right the 1st defendant had over the suit schedule property in favour of the plaintiff. The findings of the Court below on Exs.A9, A10 and A11 are unsustainable in law. When the plaintiff is claiming his title over the suit schedule property from the 3rd defendant and when the 3rd defendant filed his written statement supporting the case of the plaintiff, to establish the same, the 3rd defendant should have been made to enter into the witness box. Non-examining of the 3rd defendant though fatal to the case of the plaintiff but the Court below brushed it aside lightly. According to the 1st defendant, there was collusion between the 3rd defendant and the plaintiff which fact the Court below did not consider. Even subsequent to 1976 if the 1st defendant continued as tenant and not acquired any title over the suit schedule property or the so called theory of oral gift was not established as alleged by the 3rd defendant, the 3rd defendant would have demanded the 1st defendant to pay rents or even the plaintiff would have taken steps calling upon the 1st defendant to pay rents. The silence on the part of the 3rd defendant and the plaintiff for a long period shows that the theory of alleged partnership is just a make believe one. So also the award of the arbitrator allotting the schedule property to the plaintiff by the 3rd defendant for a sum of Rs.4,00,000/- as his share, is a make believe one made with an intention to deprive the 1st defendant of its right, title and interest over the schedule property. If the 1st defendant was continuing in possession of the schedule property as a tenant holding-over and the 3rd defendant had not gifted the property in favour of the 1st defendant, there was no reason for the 1st defendant to obtain permission from the Municipal Corporation of Hyderabad and other authorities for construction of buildings and other structures to start new faculties and for paying property tax. Till 1989 no steps were taken either by the 3rd defendant or the plaintiff to dispossess the 1st defendant. Had the plaintiff thought that the possession of the 1st defendant was an illegal one, (hey would not have kept quite for a long period from the year 1976 upto 1989 i.e., for a period more than 12 years and nothing would have prevented them to take steps to stop the 1st defendant to proceed with the construction of the additional structures, or to initiate appropriate proceedings against it to vacate and deliver possession of the schedule property to the plaintiff. From 1973 upto 1975 the 1st defendant was continuing as tenant. Subsequently there was a gift of the property in its favour which was accepted by it. According to the 1st defendant, its subsequent acts pursuant to the gift in obtaining permission for raising buildings in the schedule premises and also remitting the property tax clearly establish that the 1st defendant is not only in possession of the schedule property but also using it as the true owner of the property continuously till the date of filing of the suit. The acts of the 3rd defendant amounts to disclaimer. According to the 1st defendant, even if the oral gift is ignored for a moment, still the 1st defendant is entitled to continue in possession and enjoyment of the schedule property as it has perfected its title by way of adverse possession. To establish that the 1st defendant was not in possession of the schedule property, the plaintiff did not examine the persons acquainted but drew inferences unsupported by either facts or law. According, the 1st defendant the reliefs sought by the plaintiff do not require to be considered as the plaintiff neither proved its case nor disproved the continuous and uninterrupted possession and enjoyment of the 1st defendant over the schedule property. It was lastly contended on behalf of the 1st defendant that the findings of the Court below are based on conjectures and surmises. Thus urging, the 1st defendant sought the appeal be allowed.

Supporting the judgment and decree passed by the Court below Sri Mudaliar, learned Counsel appearing for the plaintiff submitted that the Court below is not justified in not granting the relief of decree for arrears and for damages. According to him, the appellant herein made a claim over the property on the basis of oral gift alleged to have been gifted by the 3rd defendant. The burden though was very heavy on the appellant to prove the oral gift, but it failed to establish the same by adducing convincing evidence. The appellant did not produce the letter dated 14-9-1980 alleged to have been written by the 3rd defendant. The appellant did not produce any evidence to show that he filed declaration in respect of the schedule property before the Urban Land Ceiling Authorities claiming that the suit schedule property was acquired under a gift. Even the evidence of DWs.2, 3 and 4 did not support the theory of oral gift. On the other hand, the 1st defendant is a society where often meetings will be held and minutes of such meetings will be recorded and maintained. But no records were produced where the fact of alleged oral gift was recorded in any of the meetings which fact was admitted by DWs.2 and 3 in their evidence. No letter of thanks was sent by the 1st defendant to the 3rd defendant for gifting such a valuable property. Likewise no letters were addressed by the 1 st defendant to the University Grants Commission, Urban Land Ceiling Authority, Registrar of Cooperative Societies, Hyderabad Municipal Corporation before obtaining permission for constructions, stating that the 1st defendant-society has become the owner of the schedule property by virtue of the alleged oral gift. The case of the appellant is that it had sent a reply notice dated 24-12-1987 to the notice dated 22-11-1987 but the said letter was not produced before the Court. Even in the interim reply dated 8-12-1988, Ex.A7 no mention has been made about the oral gift. On the other hand, the plaintiff produced deeds of partnership Exs.A9 and A10 whereby the plaintiff and the 3rd defendant entered into an agreement to develop the schedule property. The appellant did not vacate the suit schedule property. As such development of the property could not be carried out, which has given raise to disputes between the plaintiff and the 3rd defendant. The said dispute was referred to an arbitrator who passed an award dated 22-11-1987 under Ex.A12 whereby the 3rd defendant was paid a sum of Rs.4 lakhs and the suit schedule property was allotted to the plaintiff. The said award under Ex. A12 was registered under a judgment and decree passed by the V Additional Judge, City Civil Court, Hyderabad, on 29-1-1988 in OS No.2193 of 1987 at Ex.A13. Thus, the plaintiff became the owner of the suit schedule property. As such the 1st defendant cannot question the validity of the title of the plaintiff. According to the plaintiff, the 1st defendant was a tenant under the 3rd defendant. The same was attorned by the 3rd defendant in favour of the plaintiff pursuant to the confirmation of the award by the civil Court under Ex.A13. A notice was served on the 1st defendant informing the said attornment followed by a letter by the plaintiff calling upon the 1st defendant to vacate the schedule property and also to pay damages for unauthorised occupation of the schedule premises. According to the teamed Counsel for the plaintiff that the above circumstances are sufficient to hold that the plaintiff is the owner of the schedule property and entitled to seek delivery of possession. He further contended that the plea of adverse possession putforth by the 1st defendant has no merit for the reason that the 1st defendant came in possession of the property as a tenant. The lease was expired in the year 1975. But the 1st defendant admitted that he paid rents upto the year 1976. The 1st defendant received the letter of attornment in November, 1987. As such the possession of the 1st defendant is not adverse to the plaintiff. The learned Counsel also submitted that the Court below when ordered for a decree of possession, it should have noticed that the plaintiff is also entitled for other reliefs. According to him, the contention of the 1st defendant that the decree passed under Ex.A13 is not valid under the provisions of the Urban Land Ceiling (Prohibition and Regulation) Act has no merit in view of the law laid down by the Supreme Court in holding that the Court decrees are not affected by the provisions of the Urban Land Ceiling Act as held by the High Court of Karnataka in the case of Samuel Thyagaraja Kumars Vs. K. Sitarama Achar, .

In support of his contention that the 1st defendant has neither proved nor entitled to claim adverse possession in view of the nature of evidence given, the learned Counsel appearing for the plaintiff has placed reliance on some of the authorities of the Supreme Court and other High Courts. According to him, that the 1 st defendant is a tenant under the 3rd defendant and became tenant-holding over after the plaintiff came in possession of the property. Mere nonpayment of rents by itself raises no presumption of adverse possession as held by the High Court of Allahabad in the case of Ram Nath and Others Vs. Neta, , wherein it is held as follows :

"Non-payment of rent by itself raises no presumption of adverse possession or lead to the inference that it was due to a repudiation of the landlord''s title. Non-payment of rent may be due to several reasons, as for example the sheer inability of the tenant to pay rent or smallness of the amount of rent which the landlord does not bother to collect."

For the proposition that during the continuance of the tenancy, the tenant cannot acquire by prescription permanent right of occupancy, he placed reliance on the decision of the Supreme Court rendered in the case of Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, , wherein the Supreme Court held as follows :

"During the continuance of the tenancy, a tenant will not be permitted to deny the title of the landlord at the beginning of the tenancy. Further, during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord''s title by mere assertion of such a right to the knowledge of the landlord."

The learned Counsel further contended in the absence of proving that a person in permissive possession later asserted adverse title to the property to the knowledge of the true owners for a period of more than 12 years, the plea of adverse possession cannot be maintained. To support this contention he placed reliance on the decision of the Supreme Court rendered in the case of The State Bank of Travancore Vs. Aravindan Kunju Panicker and Others, , wherein the Supreme Court held as follows :

"Where the suit property of Tharwad was all along in the possession of tenants, the possession of a person who has only a lien over the property for the amount advanced by him, will be symbolical and will only be permissive possession. Also, subsequent purchaser of that person''s right can have no better title than what that person had. So in absence of evidence to show that that person or his successor in interest asserted any hostile title to the suit property to the knowledge of the true owners at any time before the suit, their possession cannot be said to be adverse possession."

The learned Counsel also placed reliance on another decision of the Supreme Court in the case of Achal Reddy v. Ramakrishna Reddiar AIR 1990 SC 553, wherein it was observed that possession be never considered adverse if it is referable to a lawful title because adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession are legal and proper referable to a contract, it cannot be adverse.

According to the learned Counsel for the plaintiff, the following decision of the Supreme Court rendered in the case of Thakur Kishan Singh (dead) v, Arvind Kumar, 1995 (1) APLJ 18 (SC) (supra), is helpful to the case of the plaintiff for the reason the Supreme Court in the said case held as follows :

"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."

For the same proposition, he also placed reliance on another decision of the Division Bench of this Court rendered in the case of Md. Ibrahim v. Secretary to Government of India 1996 (2) ALD 404 (DB), wherein it was held as follows :

"The suit was clearly one brought by the plaintiffs on the basis of their title. The suit clearly under Article 65 ofthe Limitation Act. In such a suit, it is the well settled position of law, that the plaintiff has only to establish his title in respect of the land and if the title is established he is entitled to the decree unless the defendant sets up a plea of adverse possession and establish to have perfected an adverse title, thereby destroying the title of the plaintiff in the land.

Once the initial title of the plaintiff is established the onus is upon the defendant to establish the plea of adverse possession. It is equally well settled that when the suit is based upon title and the title is denied on the basis of adverse possession, such plea has to be specifically raised and established through evidence. Unless the plea is raised even leading of evidence on such issue is barred as no evidence can be adduced which is not in consonance with the pleadings. It is conceded that the respondents did not raise the plea of adverse possession. As has been rightly submitted, the very case of the respondents was asserting title in themselves and the appellants as not having title to the land. On the contrary, when a plea of adverse possession is raised it is basically first of all admission of the antecedent title of the plaintiff and then thereafter destruction of the same through adverse possession. But this is a case where the respondents did not admit the prior title of the applicants.

The requirement that specific plea regarding adverse possession is to be raised and evidence to be lead is a requirement in law since all possessions are not adverse possessions. ''Adverse possession'' to satisfy the tests, must be with hostile animus against the real owner. The three ingredients to be satisfied are as in commonly known on the nec vi nee clam and nec precario. A mere permissive possession is not adverse. All the ingredients and particularly possession with hostile animus are questions of fact for which evidence has to be lead with opportunity to the parties to cross-examine the witnesses."

Thus arguing, the learned Counsel for the respondent-plaintiff sought the appeal be dismissed.

The case of the parties depends on the existence of the oral gift. It has come in the evidence that the property originally belonged to the 3rd defendant who leased out the same to the 1st defendant. It has come in evidence that the lease was determined in the year 1975. Rents were paid to the 3rd defendant till 1976. Till the date of entering into the agreement of partnership by the 3rd defendant and the plaintiff, no steps were taken by the 3rd defendant demanding the 1st defendant to pay arrears of rent. The demand to pay rents started on 22-11-1987 through a notice Ex.A4 sent to the 1st defendant whereby the 3rd defendant informed about the attomment in favour of the plaintiff. There is also no proper explanation why the plaintiff and the 3rd defendant kept silent for a long period in calling upon the 1st defendant to deliver vacant possession of the property to the plaintiff. Even the award Ex.A12 of the arbitrator was confirmed by the civil Court in OS No.2193 of 1987. The suit for possession was filed on 31-1-1989, 1-2-1989. It has come in evidence which in fact has been accepted by the Court below that the 1st defendant-appellant subsequent to expiry of lease period continued in possession of the schedule property and started constructing the buildings and other structures in the schedule property after obtaining necessary permission from the Municipal Corporation of Hyderabad and paying taxes in respect of the suit schedule property. Various authorities like University Grants Commission, Osmania University and the Government of Andhra Pradesh accorded permission to the 1st defendant-society to start several faculties. They have been evidenced at Exs.B6 and B7 etc. If the 3rd defendant had not gifted the schedule property there is no explanation from him why he was silent for the period upto his entering into agreement with the plaintiff as a partner and then getting it arbitrated by an arbitrator. It shows that the 3rd defendant had acquiesced in the acts of the 1st defendant that they are entitled to construct buildings which of course was pursuant to the oral gift of the property made by the 3rd defendant. The finding of the Court below that oral gift cannot be accepted for the reason that the donor being a Muslim would not have gifted it to an institution belonging to other community that too without insisting for reservation for minorities and further the fact that the oral gift was not recorded either in the minutes of the meeting of the 1st defendant society nor was it mentioned in any of the letters addressed by the 1st defendant to the Government, Municipal Corporation of Hyderabad, University Grants Commission and other authorities, has no substance in law in view of non-claiming of the rents coupled with allowing the 1st defendant-appellant to proceed to construct several buildings in the schedule property for more than twelve years which factors established beyond doubt that there was a disclaimer over the property by the 3rd defendant. It is not shown that there was any objection or obstruction or discontinuance of the possession and enjoyment of the property in question by the 1st defendant-appellant. The finding of the Court below disbelieving that the 1st defendant got the suit schedule property pursuant to the oral gift that was made by the 3rd defendant is based on surmises and conjectures. The trial Court considered the evidence leaning more in favour of the plaintiff ignoring the conduct of the parties particularly the 3rd defendant who was silent as to the continuous possession and enjoyment of the schedule property by the 1 st defendant.

Whether the gift was in existence or the plaintiff acquired valid title pursuant to the award which was confirmed by the civil Court, the 3rd defendant would have been a proper person to speak. Though the 3rd defendant filed written statement he did not enter into the witness box to establish that the 1st defendant had no right to proceed with the constructions. The 3rd defendant should have entered into the witness box when the plea of gift was denied. The trial Court incorrectly threw the burden on the 1st defendant. The finding of the Court below that the failure of the 3rd defendant to enter into the witness box has negatived the plea of gift is, in our view, incorrect. The further case of the 1st defendant is that it perfected its title by way of adverse possession. There is no complaint as to the 1st defendant''s possession and enjoyment of the property. Even assuming that the lease was determined in the year 1975 and the 1st defendant paid rents upto 1976, no proper explanation is forthcomig from the plaintiff that why they were silent till 1-2-1989 in neither preventing the 1st defendant from proceeding with the construction of several buildings in the schedule property nor demanding the 1st defendant to vacate the schedule property. Except the oral testimony that the 1 st defendant paid rents to the 3rd defendant till 1976 no other matcriai was produced to show that in fact it paid rents. Reliance placed on some of the documents produced by the plaintiff namely on the notices issued by the 3rd defendant or by the plaintiff and the reply received by them do not disturb the 1st defendant''s continuous possession and enjoyment of the property for more than 12 years as of right.

It is relevant to mention here what are the ingredients which constitute adverse possession. To claim adverse possession defendant must establish that such possession must be open, adequate, and with sufficient publicity so as to attract the notice of the plaintiff. When the plaintiff has failed to note the same, time would continue to run against him.

It is true that the tenant cannot claim adverse possession as long as he is continuing as a tenant. Once it is determined and he continued in possession without any permission then he would acquire title over the land by adverse possession. In other words, when the tenant asserts title over the property hostile against the landlord and holds it for 12 years and more, in such circumstances the landlord would loose his title over the schedule property.

When a person claims title to the property by way of adverse possession, lie has to prove that he has been in possession and enjoyment of the property continuously, uninterruptedly and to the knowledge of the true owners. We are aware of the law laid down by this Court and the Supreme Court that a tenant holding over or by mere permissive possession, cannot assert title which has been explained in the decisions referred above and relied on by the learned Counsel for the plaintiff. As to the principle laid down by the Supreme Court and this Court in the above decisions, there cannot be any second say. But how far those decisions are applicable has to be examined in the light of the nature of the evidence given? The 1 st defendant has given evidence in this case that he has been in continuous possession and enjoyment of the schedule property for more than the statutory period, viz., 12 years. This fact was not disputed. It was also not disputed that no legal steps were taken calling upon the 1st defendant to hand over possession of the schedule property within the period of 12 years. The silence on the part of the 3rd defendant for a period of more than 12 years suggests that the 3rd defendant was aware of the right that has been given to the 1st defendant-appellant. It is also natural to infer that gift of the property as pleaded by the 1st defendant must have taken place. Mere non-production of confirmation of gift has not weakened the case of the appellant. The appellant-1st defendant produced apart from other documents, the documents evidencing the permission granted by the Municipal authorities for construction of buildings and tax receipts evidencing payment of property tax which all relate to prior to the filing of the suit. If the 1st defendant-appellant was in possession of the property only in the capacity of the tenant, no prudent owner would have been kept silent without raising objection for expansion of buildings in the suit schedule property including when the 1st defendant had let out a portion of the premises to the 2nd defendant. These acts of the 1st defendant constitute evidence of assertion of his title hostile to plaintiff and the 3rd defendant. Though a decree has been obtained confirming the order of the arbitrator in respect of the dispute between the 3rd defendant and the plaintiff, the same does not bind the appellant as he was not a party to the proceedings.

In the case on hand, as mentioned above, no evidence was produced to show that within 12 years period the 3rd defendant had taken steps to get the 1st defendant-appellant evicted from the suit schedule property. On the other hand his silence for more than 12 years established that there was disclaimer on his part because the 1st defendant was publicly claiming by his acts of construction of some buildings that the property belongs to him. As such it will have presumptive value that the 1st defendant has perfected its title to the suit schedule property by way of adverse possession. In our strict scrutiny of evidence given, the reasons given by the Court below to give findings in favour of the plaintiff and against the 1st defendant deserve to be held as incorrect. The plaintiff failed to prove his title over the schedule property and his right to seek delivery of its possession.

Accordingly the appeal is allowed and the judgment and decree dated 5-9-1998 in OS No.161 of 1989 on the file of the IV Additional Senior Civil Judge, City Civil Court, Hyderabad, allowing the suit in part, is set aside and the suit is dismissed in toto. However, there is no order as to costs.