SHRIRAM GENERAL INSURANCE COMP LTD vs HEERABAI

This second appeal has been preferred by the plaintiffs against the judgment and decree dated 15.1.1998 passed by 16th Additional District Judge, Indore in Civil Appeal No.11-A/1997, whereby the judgment and decree dated 5.8.1997 passed by Civil Judge, Class-II, Depalpur, District Indore in Civil Suit No.74- A/1986 was reversed.

The appellants-plaintiffs filed the civil suit for declaration of title and permanent injunction in respect of agricultural land bearing Survey No.218 area 1.10 Acre; 219 area 21.94 Acre; and 220 area 1.6 Acre, total area 30.71 Acre situated at Village Tamalpur, Tehsil Depalpur, District Indore (hereinafter, for short, ''the disputed land''). Brief facts necessary to unfold the controversy are as under :

It is not a matter of dispute that the disputed land

belonged to Jagannathsingh, Hemsingh, Narayansingh and Nirbhaysingh who were real brothers. Original plaintiffs viz. Gendalal (since deceased) and Ramchandra were also real brothers. Jagannathsingh and Hemsingh died before institution of the suit on 19.7.1988. The suit was preferred against Narayansingh (defendant No.9), Nirbhaysingh (defendant No.10). Apart that, the legal representatives of Jagannathsingh and Hemsingh were also arrayed as defendants No.1 to defendant No.8. It is significant to note that during pendency of this appeal, Narayansingh and Nirbhaysingh also died and their legal representatives have been brought on record. Appellant-plaintiff - Gendalal has also expired and his legal representatives are also on record.

The suit was brought on the basis of averments that Jagannathsingh and Hemsingh sometimes in year 1962 had sold the disputed land for a consideration of Rs.4,000/- to the appellants-plaintiffs. As there were good relations between them, therefore, immediately a registered sale-deed was not executed, however, the possession of the disputed land was given by Jagannathsingh and Hemsingh to the appellants-plaintiffs. The sale was effected by them with the consent of their brother viz. Narayansingh and Nirbhaysingh. As averred by the plaintiffs, they time and again requested Jagannathsingh and Hemsingh to execute a registered sale-deed in their favour with regard to the disputed land, however, they kept on making assurances that they will execute the registered sale-deed any time. However, the sale-deed could not be executed and Jagannathsingh expired in 1966 and thereafter, Hemsingh also expired sometimes in 1976. The plaintiffs further averred that in view of the oral sale of the

disputed land by Jagannathsingh and Hemsingh, the plaintiffs throughout remained in peaceful and uninterrupted possession of the disputed land continuously for a period of more than 26 years till filing of the suit, however, on 26.l6.1988, the defendants refused to acknowledge their title over the disputed land and further, were intending to transfer the disputed land in dubious manner, therefore, it became necessary for them to bring a suit for title, declaration and injunction.

The defendants in their joint written-statement, denying the aforesaid averments submitted that Jagannathsingh and Hemsingh never orally sold the disputed land to the plaintiffs; that in 1966, the disputed land was given for grazing of cattle to the plaintiffs for a period of 4 years orally; and that the possession of the disputed land was reverted back to the defendants in 1970, therefore, it is incorrect to say that the plaintiffs are in peaceful and uninterrupted possession of the disputed land for past 26 years and thus, have become owners of the disputed land by way of adverse possession.

The learned trial Court, on the basis of pleadings framed as many as 8 issues. It was found that the disputed land was not sold by Jagannathsingh and Hemsingh for a sum of Rs.4,000/- to the plaintiffs, however, they are in possession of the same for last 26 years and have perfected their title over the same by way of adverse possession. It was further found that the disputed land was of joint Hindu family, therefore, Jagannathsingh and Hemsingh had no right to transfer anything more than their share in the disputed land. Accordingly, the suit was decreed for

title and permanent injunction. However, the plaintiffs were directed to pay necessary registration-fee for mutation of their names in the revenue records.

Two appeals were preferred against the impugned judgment, first by the defendants-respondents against the decree of title and injunction; and second by the plaintiffs against the direction to pay registration-fee for mutation of their names in the revenue records. The learned appellate Court vide the impugned judgment disposed of both the appeals by allowing them. The learned appellate Court found that at the most, it can be said that the possession of the disputed land was given to the appellants- plaintiffs pursuant to an oral agreement to sale, therefore, the same cannot be treated as adverse, hence the appellants-plaintiffs are not entitled to a decree of title and injunction.

The second appeal was admitted by this Court on 28.8.1998 on the following substantial question of law :-

"Whether the appellate Court below erred in law in holding that the plaintiffs-appellants have not perfected their title by adverse possession even when their possession was in pursuance of oral and invalid sale ?"

Learned counsel for the appellants submitted that the plaintiffs'' peaceful and uninterrupted possession over the disputed land for a period of 26 years was well proved. Further, there was a clear-cut pleading that the possession was acquired under an oral sale, hence, right from the very beginning, the plaintiffs were claiming themselves as the owners of the disputed land and,

therefore, the learned appellate Court has committed a serious error in holding that the acquisition of title on the basis of adverse possession is not proved in the case. Placing reliance on the decision of the apex Court in Bonder Singh & others vs. Nihal Singh & others, AIR 2003 SC 1905, it is submitted that the apex Court has held that possession under an unregistered and un- stamped sale-deed executed in favour of predecessor in interest of the plaintiffs is in the nature of adverse possession. Further reliance is placed on decisions of the apex Court in State of West Bengal vs. Dalhousie Institute Society, AIR 1970 SC 1778 ; and Collector of Bombay vs. Municipal Corporation of the city of Bombay, AIR (38) 1951 SC 469, wherein it has been held that possession under an illegal/invalid grant is adverse in nature.

Per contra, learned counsel for the respondents- defendants has placed reliance on a recent decision of the apex Court in Gurudwara Sahib vs. Gram Panchayat Village Sirthala, 2014 (3) MPLJ 36, wherein it has been held that no declaration of title can be sought on the basis of adverse possession and even if the plaintiff is found to be in adverse possession, he cannot seek a declaration to the effect that such adverse possession has matured into ownership. Necessary observations in this regard are found in Para 7 of the judgment, which runs as under :

"7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the Courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it

cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."

To counter the aforesaid plea, the learned counsel for the appellants-plaintiffs has relied on two decisions of the apex Court - firstly Sarva Shramik Sanghatana (KV), Mumbai vs. State of Maharashtra, (2008) 1 SCC 494 ; and secondly Bihar School Examination Board vs. Suresh Prasad Singh, 2010 (1) MPLJ 321 (SC) . In both these cases, it has been held that the judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The classical exposition of law that a case is only an authority for what it actually decides, has been reiterated in both the decisions.

Heard the learned counsel for the parties and perused the record.

The plaintiffs have come with the plea that they under an oral sale obtained possession of the disputed land in 1962. It has further been averred by the plaintiffs that after this transaction, they kept on requesting Jagannathsingh and Hemsingh to execute a registered sale-deed with regard to disputed land, however, as they were having cordial relations with them, therefore, they kept on making assurances that they will execute the sale-deed in due course, but no registered sale-deed could be executed till their

death.

Here, it is pertinent to refer that as per record, Jagannathsingh died in 1966 and Hemsingh died in 1976. The tone, texture and tenor of the averments made by the plaintiffs clearly indicates that after the alleged transaction, whereunder the possession of the disputed land was given by Jagannathsingh and Hemsingh in 1962 to the plaintiffs, both the parties were having an understanding that a registered sale-deed in due course shall be executed by Jagannathsingh and Hemsingh in favour of the plaintiffs and in this regard, requests and promises were being made by both the parties. The conduct of the plaintiffs in making requests to Jagannathsingh and Hemsingh to execute a registered sale-deed clearly indicates that they during that period throughout acknowledged them as owners of the disputed land and that their character as such owners of the disputed land was not denounced by the appellants-plaintiffs. From the averments of the plaintiffs, it flows that this state of affairs continued till the death of Hemsingh, who expired in 1976.

The word ''sale'' has been defined in Section 54 of the Transfer of Property Act. As per Section 54, ''sale'' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised, and such transfer, in the case of tangible immovable 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 instant case, no registered agreement to sale was executed in 1962 or any time thereafter, therefore, it cannot be said that there was a sale of

agricultural land within the meaning of Section 54 of the Transfer of Property Act.

The plaintiffs'' conduct, as averred by them, in persistently making demand to Jagannathsingh and Hemsingh to execute a registered sale-deed in their favour, further goes to indicate that the plaintiffs never challenged the capacity of Jagannathsingh and Hemsingh as owners of the land. In Achal Reddy vs. Ramakrishna Reddiar, AIR 1990 SC 553, the apex Court has considered about the nature of possession obtained on the basis of invalid/oral sale. Para 8 and 9 of the report, which are relevant for the purpose, run as under :-

"8......... 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 regarded 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 to-to 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 transfer 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.

In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former''s title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser''s possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in pursuance Of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and

in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person.''''

From the aforesaid, it is clear that where the parties contemplate the execution of a regular registered sale-deed, the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former''s title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. It is further clear from the aforesaid enunciation of law that purchaser''s possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. Thus, in the given facts, the possession of the plaintiffs over the disputed land on the basis of alleged oral sale, whereafter a request was being made by the plaintiffs to execute a registered sale-deed, has to be held to be of derivative character.

The law is settled that adverse possession must be adequate, in continuity, publicity and extent and that the averments must be clear to show as to when possession become adverse so that the starting point of limitation against other party can be ascertained. In this regard, we can refer to the observations of the apex Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 wherein it has been held as under :-

"11. ........ Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

Recently, in Tribhuvan Shankar vs. Amrutlal, (2014) 4 SCC 788, the apex Court has held that conception of adverse possession fundamentally contemplates a hostile possession by which there is denial of title of the true owner. It has further been held that mere possession or user or permissive possession does not even remotely come near the spectrum of adverse possession and that to be adverse; the possession must be actual, open, notorious, exclusive and continuous for the requisite frame of time, as provided in law.

Examined on the touchstone of the aforesaid, in the instant case, the appellants-plaintiffs have not very clearly disclosed the date on which their possession became adverse to the defendants. Apart this, they have averred that during the lifetime of Jagannathsingh and Hemsingh, plaintiffs throughout requested them to execute a registered sale-deed and that they too promised to execute a registered sale-deed, however, the same could not be executed. This clearly implies that during the lifetime of Jagannathsingh and Hemsingh, the appellants-plaintiffs'' possession was not of hostile nature. Nothing is there to indicate that soon after the death of Hemsingh, it became hostile because there is no specific pleading in this regard. Hence, it cannot be said

in the instant case that the possession of the appellants-plaintiffs over the disputed land had been hostile for the entire statutory period of 12 years.

As regards pronouncement of the apex Court in Gurudwara Sahib''s case (supra), the law has been declared in quite explicit terms and it is not a case of deducing something on the basis of observations. Therefore, it cannot be said that the aforesaid observations cannot be applied to the present lis. Otherwise also, there has been a long line of decisions, wherein it has been held that the plea of adverse possession is a shield for defence and not a weapon for an attack. The authorities relied upon by the learned counsel for the appellants-plaintiffs are very much distinguishable on facts. In Bonder Singh''s case (supra), there was a written unregistered sale-deed and there was nothing to show that after the execution of invalid sale-deed, the parties further expected the registration of a sale-deed. Remaining two authorities viz. Dalhousie (supra) and Municipal Corporation of City of Bombay (supra) are with regard to possession under an illegal grant, which was considered to be adverse. In the instant case, there is no issue with regard to illegal grant, therefore, the same are of no help to the appellants-plaintiffs.

In view of the aforesaid, it cannot be said that the learned appellate Court has committed any error in holding that the appellants-plaintiffs'' possession being of derivative nature, they cannot claim to have acquired title over the disputed land on the basis of adverse possession. Considering the fact that the appellants-plaintiffs are in possession over the disputed land for last 26 years, it would be in conformity of law to direct that they shall not be evicted without following due process of law.

Accordingly, this appeal having no merit deserves to be and is hereby dismissed. Parties to bear their own costs.