Prokash Chandra Mukherjee & Ors V.
Saradindu Kumar Mukherjee & Ors  INSC 46 (4 February 1971)
CITATION: 1971 AIR 2556 1971 SCR (3) 666
Defence of India Act, 1939 and Rules, r.
75-A-Requisition and possession by Government-Period, whether could be tacked
for purposes of limitation by person to whom possession was restored.
Pleadings-prayer for possession-When can be
The plaintiff became a co-sharer with the
defendant in the suit property in the year 1941 as a result of some conveyances
by members of the defendants' family. The property was in the occupation of
military authorities by requisition under the Defence of India Act, 1939, and
the Rules made there under, for four years from 1942 to 1946.
The defendants were in exclusive possession
thereafter from 1946 to 1955 when the plaintiff filed a suit for partition and
possession of his share.
On the question whether the suit was barred
by limitation under art. 144 of Limitation Act, 1908, on the plea that as the
military authorities had taken possession of the property from the defendants
and had restored the possession to them in 1946-the possession of the said
authorities was really under or on behalf of the defendants without causing any
break in the continuity of their possession,
HELD : The possession of the Government was
neither by permission of the defendants nor in the character of an agent of the
defendants. The orders of requisition, relinquishment of possession and
payment, of compensation under the Defence of India Act read with Act and the
Rules how that the possession was taken by Virtue of the powers under the Act
and the Rules irrespective of any consideration as to the rights of the true
owner or the occupier who could make a claim to compensation. Therefore,
possession of Government by requisition under rule 75-A can- not enure for the
benefit of the person who was in possession before, for the purpose of enabling
such person to acquire a prescriptive title. [669 E-F; 670 B-D] Karan Singh v.
Bakar Ali Khan, 9 I.A. 99, applied.
Bobett v. South Eastern Railway Co.  9
Q.B. 424 and Dagdu v. Kalu, 22 Bombay 733, explained.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2394 of 1966.
Appeal by special leave from the judgment and
decree dated June 26, 1964 of the Calcutta High Court in Appeal from Appellate
Decree No. 1011 of 1962.
S. V. Gupte and D. N. Mukherjee, for the
appellants.- 667 Bishan Narain and P. K. Ghosh, for respondents Nos. 1, 2(c), 2
(d), 2 (f ) and 2 (g).
The Judgment of the Court was delivered by-
Mitter, J. The main question in this appeal is, whether the
defendants-appellants perfected their title to the property in respect of which
partition was claimed by the plaintiffs by adverse, possession for the prescriptive-period
of twelve years or more.
The relevant facts are as follows. The
parties are all descendants of one Durgadas Mukherjee who died many years back,
leaving six sons and inter alia the property which is the subject matter of
this litigation, recorded as Dag No.
444 Khatian No. 72 in Mauja Barasat, District
24 Parganas during the last Cadastral survey. Of the two plaintiffs the first
Saradindu is a great grandson of the said Durgadas Mukherjee of the branch of
the youngest son, his co- plaintiff being a grandson in another branch. The
defendants belong to other branches of the said family. The first plaintiff
based his title on several conveyances from other members of the family as also
purchase at an execution sale of a fractional interest of the members of the
branch of Bama Charan, the second son of Durgadas. The second plaintiff claims
by inheritance. The property consists of 34 acres together with two structures
thereon which are quite separate from each other. One portion of the structures
i.e. that to the east, popularly known as Bamacharan Babu's' Bati is a fairly
commodious building with a separate municipal number. The other structure in
the western portion known as Baitakhana Bati was and is admittedly the joint
property of the descendants of Durgadas with a municipal number of its own. The
plaintiffs claim that the land and the two buildings are joint property while
the whom are appellants before this the said eastern building with the case of
the appellants was that the contesting defendants, some of Court, claim
exclusive title to land on which it stands. The eastern structure was
constructed, by Bama Charan with his own money and that. the co-sharers of Bama
Charan, by ekramamas, gave up their interest in the land on which the same
stood. The High Court agreeing with the finding of the first appellate court
found that there was no, evidence on record to show that Bama Charan had put up
the said building with his own money or that he was the exclusive owner of the
said two storeyed building- or that the other co-sharers gave up their
ownership of the subjacent soil and rejected the exclusive title sought to be
set up with regard thereto. This is a conclusion of fact which does not require
The High Court also agreed with the lower
appellate court in rejecting the story of permissive possession of the
defendants over the said building set up by the plaintiffs and came to the
conclu 13-918 Sup. C.I./71 668 sion that "at all material times the heirs
in the line of Bama Charan including the appellants were in separate possession
of the eastern two-storeyed building." The point for consideration before
the High Court was and before us is, whether by such exclusive possession the
heirs in the line of Bama Charan including the appellants acquired title by
adverse possession to the eastern portion i.e. Bama charan Babu's Bati. With
regard to the Baitakhana Bati there is no dispute about its jointness. No
question can be raised about the 'first plaintiff's having become a co- sharer
with the heirs in the line of Bama Charan.in the year 1941 by private treaties
and the auction purchase of the shares of three of his sons in execution of an
award under a Co-operative Societies Act. By the kobalas the first plaintiff
acquired fractional interest in the shares of some of the descendants of Bama
Charan as also of the descend- ants of his brother Shyama Charan. In the sale
certificate following the ;auction purchase there is a reference to "Dalan
3 Privy 2" but there is no express reference to these in the koabalas (Ex.
6 series). In the courts below the defendants-appellants contended that the
eastern two- storeyed building was neither intended to be nor was conveyed
under Ex.6 series kobalas and Ex. 9 a), the sale certificate. Both the trial court
and the first a ale court :held that the kobalas and sale certificate were
sufficiently comprehensive so as to include all or any structures which stood
on the aforesaid plot of land at the material time and that there was, nothing
express or implied in the kobalas to show that the two-storeyed building on the
eastern side was intended to be excluded from their operation. The High Court
also found that so far as the sale certificate was concerned the first
plaintiff had acquired the interest of three sons of Baba Charan.
The point as to adverse possession canvassed
by the appel- lants arises in the following manner. Their contention is that
although the sale certificate was obtained in 1941 inasmuch as the suit for
partition was filed in 1955 the requisite period of 12 years under Art. 144 of
the Limitation Act of 1908 had elapsed in the meanwhile resulting in the
perfection of their title by exclusive separate possession of the property. To
this the plaintiffs' rejoinder was that the two-storeyed building in the
eastern wing had indisputably been in the occupation of the military
authorities by requisition under the Defence of India Act and the Rules, 1939
for four years from 1942 to 1946. It was argued that there was thus a break in
the claim to the prescriptive title set up and adverse possession, if any, was
limited to the period between 1946 and 1955. This was sought to be repelled by
the plea that the military authorities had taken possession of the property
from the defendants and had restored possession W them in 1946 and 669 that
their possession was really under or on behalf of the defendants without
causing a break in the continuity of their possession. An attempt was made to
substantiate this by reference to several documents which form part of the
record. The order of requisition dated May 28, 1942 made under rule 75-A of the
Defence of India Rules issued by the Collector of the District of 24 Parganas'
shows that the building together with fixtures, fittings etc. was to be placed
at the disposal and under the control of Brigadier Commander 36 Indian Infantry
Brigade, Barrackpore on and from 8-2-1942 until six months after the
termination of the war unless relinquished earlier. A copy of the notice was
served on Prakash Chandra Mukherjee of Barasat described as "the
owner/occupier" of the said property.' The notice of an award under s. 19
of the Defence of India Act 1939 addressed to Prokash Chandra Mukherjee,
another descendant of Bama Charan shows that compensation had been adjudged and
awarded in respect of the property at Rs. 125. A third notice dated June 24,
1946 sent out from the office of the Land Acquisition Collector addressed to
Pankaj Kumar Mukherjee and others shows that possession of Cadastral survey
plot No. 444 Mouza Barasat requisitioned under rule 75-A would be restored to,
the addressee on July 2, 1946. Ex. D, a memo forwarding a cheque for Rs. 2,100
was addressed to Prokash Chandra Mukherjee. and others by way of rent for
terminal compensation in respect of the premises which had been requisitioned.
In our view possession by Government or the
military autho- rities of immovable property under rule 75-A of the Defence of
India Rules 1939 cannot be said to be in the character of an agent or by virtue
of any implied permission from the true owner or occupier. S. 2 of the Act of
1939 under which rules were made and in particular cl. (xxiv) of sub-s. (2) of
that section empowered the authorities mentioned to make orders providing for
the requisitioning of any property, movable or immovable, including the taking
possession thereof 'and the issue of any orders in respect thereof. S.
19 (1) of the Act only enjoined upon the
Government to pay compensation in every case of such requisition and under s. 19-B(1)
Government was under an obligation, whenever any property requisitioned under
any rule was to be released there from, to make such enquiry, if any, as was
considered necessary and specify by order in writing the person to whom
possession was to be given. Sub-s. (2) of this section clearly shows that
delivery of possession of the property to the person specified in an order
under sub-s. (1) was to operate as full discharge to the Government from all
liabilities in respect of the property, but was not to prejudice any rights in
respect thereof which any other person might be entitled by due process of law
to enforce against the person to whom possession of the property was given.
Rule 75-A enabled the Central Government of the Provincial Government to
requisition any property, movable. or immovable, subject to certain exceptions
The net result of the Act and the Rules and
the effect of orders of requisition and relinquishment of possession and or
payment' of Compensation must be taken to be that possession was taken by virtue
of the powers under the Act and the rules irrespective of any consideration as
to the rights of the true, owner or the occupier who could only make a claim to
compensation. It is further clear that even if possession was taken from A but
was made over to B after relinquishment, A could have no cause of action
against Government if relinquishment was in terms of cl. (2) of S.
19-B(1). In other words possession-of
Government was neither by permission nor in the character of, an agent. If
possession under the requisition had been taken from a trespasser but had been
restored to the lawful owner after the end of the period of requisition, the
trespasser could not contend that he was wrongfully deprived of possession or
that the, period of Government's occupation should be added to the period of
his preceding trespass to enable him to claim a prescriptive right by adverse
The High Court relied on the decision of the
Judicial Committee of the Privy Council in Karan Singh v. Bakar Ali Khan(1) in
coming to the conclusion that such requisition put an end to the claim for
adverse possession, if any, which might have started from an anterior date. The
Judicial Committee held that possession of the defendants since 1863 when the
Collector had relinquished possession was not, 12 years' possession but it was
contended on behalf of the defendant that he was justified in tacking to his
possession the possession of the Collector from 1861. The Board found that
pending a dispute between the parties the Collector, in order to secure the
Government revenue had attached and taken possession of the property and
retained possession of it from 1861 until October 1863 when in consequence of
the decree of the civil court he delivered possession to the defendant and paid
over to him the surplus profits of the estate after deducting the Government
revenue and expenses. As the suit was brought in the year 1874 the period of 12
years had to commence some time in 1862. The Board observed that it must be
assumed that "the Collector properly took possession for the purpose of
protecting the Government revenue. It was the duty of the Collector whi1st in
possession under the attachment, to collect the rents from the ryots, and
having paid the Government revenue and the expenses of collection to pay over
the surplus to the real owner. If the defendant was the real owner the surplus
belonged (1) 9 I.A. 99.
671 to him; but if, on the other hand, the
infants were the right owners, then the surplus belonged to them. The
Collector, by paying over the money to Karan Singh, did not give Karan Singh a
title." Accordingly it was held that the suit was not barred by
Mr. Gupte on behalf of the appellants relied
on Halsbury's Laws of England (Third Edition, Vol. 24) Art. 484 at P.253 in
support of his contention that the exclusive possession of s client was not
disturbed by the requisition. The article relied on reads "The mere fact
that land is taken under the Lands Clauses Consolidation Act, 1845, for the
purposes of a public undertaking, and is not superfluous land, does not prevent
a person, who has exclusive possession of such land for the statutory period,
from acquiring title under the statute;" The decision relied on by Mr.
Gupte is that of Bobett v. The South Eastern Railway Co. (1).
In our view neither the above passage nor
this judgment helps the appellants in any way. One of the points raised in
Bobett's case was, whether the plaintiff in an action of trespass and to
recover possession of land could be allowed to set up a plea that inasmuch as
he had been let into possession by the defendants or that he had been in
possession to the exclusion of the defendants without any tenancy at all during
the time required by the Statute of Limitation for the acquisition of a
prescriptive title, he was absolutely entitled to the land when ousted by the
defendants. It was argued on behalf of the defendants that even if the
plaintiff was a tenant at will for the requisite period and in exclusive
possession of the land the Statute of Limitation did not apply to the case, for
the land in question was inalienable by the company under s. 127 of the Lands
Clauses Act and therefore could, by the mere aches of its officers have vested
in the plaintiff contrary to the intention of the Legislature which only
allowed the company to take possession of the land for the purposes of the
undertaking and subject to the provisions of its Acts and not give it up to
others. There on a consideration of s. 7 of 3 and 4 wm. 4, c. 27 and other
statutory provisions Denman, J. arrived at the conclusion:
".....that the mere fact that the
property in question was land taken for the purposes of the undertaking and not
superfluous land, would not prevent the plaintiff if he had exclusive
possession since 1863, either as a (1)  9 Q.B. 424.
672 wrongdoer or as tenant at will in the
first instance from being entitled to the land by virtue of the Statute of
Limitations." Put simply the dictum only meant that the Statute of
Limitation would be applicable to possession of a trespasser notwithstanding
the provisions of the Lands Clauses Act, 1845.
The question before us is altogether of a
different character. If the defendants-appellants could have established that
an order under r. 75-A of the Defence of India Rules merely enabled the
military authorities to take possession of the land for the period of their
need by their permission or in the character of agents, they would have
probably been on firm ground. But, as already observed by us, the nature of the
order of requisition under r. 75-A is altogether different and such possession
cannot enure for the benefit of the person who was in possession before for the
purpose of acquisition of a prescriptive, title.
The only other decision to which our
attention was drawn is that of Dagdu v. Kalu(1). In this case it was found that
the plaintiff had been admittedly out of possession of the lands since 1881 and
the defendant had been in adverse possession of them from that time until the
date of suit October 2, 1895, with the exception of a period of three years
during which period he had been dispossessed by one Barsu who wrongly alleged
that he was a donee of the plaintiffs. On that allegation the donee obtained
possession of the land under the decree of the court of first instance but it
was reversed by the High Court and the land was as a reversal restored by the
court to the defendant on 9th April 1895. It was observed by the High Court
that (p. 736) :
"The erroneous action of the Court of
first instance cannot, we think, prejudice the defendant, or put him in a worse
position that he would have occupied, had the erroneous decree not been
made." This decision too, in our opinion, does not help the appellants.
The possession of the defendants was disturbed by a wrong order of the court
which was ultimately put right and the court no doubt acted on the maxim that a
litigant is not to be prejudiced by any wrong order of the court.
A faint attempt was made to re-agitate the
question that the auction sale of 1941 did not include the eastern portion.
This in our opinion is concluded by the
finding of the High Court already noted.
(1) 22 Bombay 733.
673 The last, point put forward was that the
plaintiffs had not asked for possession in their plaint. This can be rejected
summarily. The prayers in the plaint not only include one, for preliminary
decree for partition but for the appointment of a commissioner for effecting
partition of the property by separating the shares of the plaintiffs from those
of the defendants in the suit property. Clearly the plaintiffs were asking for
demarcation of' the portion of the property which should be theirs as a result
of the partition.
Imbedded in this prayer is a claim for
In the result the appeal fails and is
dismissed with costs.
V.P.S. Appeal dismissed.