@ Akkabai Vs. Harishchandra Munnalal Gupta  INSC 463 (3 March 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1367 OF
2009 (Arising out of SLP (C) No.20957 of 2004) Kausalyabai & Akkabai (Dead)
By LRs. ... Appellants Versus Harishchandra Munnalal Gupta ... Respondent
Defendant in a suit for recovery of possession filed by her
brother (Respondent) is before us challenging the legality and/or validity of
the judgment and order dated 29.6.2004 passed by a learned Single Judge of the
High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal No.13
of 2001 dismissing an appeal preferred by the appellant herein against a
judgment and order dated 7.12.2000 whereby and 2 whereunder the judgment and
order dated 25.01.1995 passed by the learned Trial Judge was reversed.
Original parties to the suit were brothers and sisters. They had
another brother, Dr. D.C. Gupta. The property in suit is said to be an
ancestral property. Appellant became a widow in 1945. She, therefore, came to
stay with her parents. Father of the original parties died in 1947.
and his brother, therefore, became owner of the properties.
was a Constable. He had been occupying a Government accommodation. Allegedly,
he allowed his sister to stay in his house, inter alia, on the condition that
she would vacate the same on his retirement.
Plaintiff in his plaint alleged that the defendant was a licensee,
which was revoked by a notice dated 3.5.1982. As despite the same, the
defendant did not vacate the licenced premises, the suit was filed.
inter alia, contended that he had been granted a permanent lease by an order
passed by Nayab Tehslidar on 30.11.1979. Plaintiff, however, did not implead
his brother or his heirs or legal representatives in the said suit.
Defendant-appellant, however, contended that she had been in possession of the
premises in suit even before her husband's death and has allegedly been
exercising all rights of ownership in the property in suit 3 including payment
of all rates and taxes. The suit was filed on 9.6.1982.
in the proceedings before the Nayab Tehsildar, the defendant was not a party.
She came to know about the proceedings before the said authority in respect of
grant of permanent lease on 4.5.1982. She filed a review application on
20.8.1982. The said review petition was dismissed.
was preferred thereagainst and the learned Additional Collector being the
appellate authority by an order dated 20.6.1986 allowed the said appeal and
remitted the matter back to the original authority in terms whereof, the review
application revived. By reason of an order dated 19.1.1991, Collector, Buldhana
revoked the said grant in favour of the plaintiff upon setting aside the order
dated 30.11.1979. Plaintiff preferred an appeal thereagainst. By reason of an
order dated 25.1.1995, the Additional Commissioner, Amravati Division, Amravati
allowed the said appeal in part directing the Collector to await final decision
of a competent court whose decision is final and take action accordingly.
The defendant sought leave for amendment of her written statement
inserting paragraphs 8(A) and 9(A) which are in the following terms :
prejudice to any above contentions it is submitted that this defendant is in
possession of the suit plot openly, continuously, peacefully and without any
interruption as owner of the suit plot and showing hostile attitude towards all
since last more than 30 years and therefore this 4 defendant has acquired title
by adverse possession.
plaintiff has no title to the suit property and he failed to establish the
same. Therefore, instant suit not at all maintainable and cannot lie.
electric meter in the suit house is in the name of this defendant since
beginning and this defendant has paid the charges for the same. That the taxes
of the suit plot were also borne by this defendant. It is submitted that, this
defendant has acquired the title of the suit plot by way of adverse possession
and therefore, the plaintiff has no locus standi to file the present suit
against him. The suit is also bad for non-joinder of necessary party and hence
the suit of the plaintiff deserves to be dismissed with costs.
Without prejudice to the contents made above, alternatively, it is submitted
that the plaintiff has no locus to grant alleged licence and further even if
the story put forth by the plaintiff is taken as it is in relations with
property in question five on licence then the Civil Court has no jurisdiction
to entertain and try present suit as the property in question comes within the
amended provision of Central Provinces and Barer letting of Houses and Rent
Control Order 1949 and hence unless and until permission to that effect is not
obtained from the competent authority for issuing quit notice and legally the
alleged lease is not terminated, no suit for possession can be against the
The suit was dismissed by the learned trial Court by a judgment
dated 16.7.1985. Plaintiff preferred an appeal thereagainst. The First
Appellate Court, however, was of the view that the learned Trial Judge was not
correct 5 in dismissing the suit as the plaintiff had derived title over the
suit land and the defendant had no title therefor.
furthermore opined that the plea of adverse possession was also not available
to the defendant. A Second Appeal preferred thereagainst, as noticed
hereinbefore, has been dismissed in limine.
Mr. Manish Pitale, learned counsel appearing on behalf of the
appellant, would contend that despite the fact that several substantial
questions of law arose for consideration before the High Court, it erroneously
dismissed the appeal in limine, inasmuch as the subsequent events, namely, that
the order passed by the Nayab Tehsildar dated 20.12.1979 ceased to have any
force, was not taken into consideration.
The learned counsel appearing on behalf of the respondent,
however, would support the impugned judgment.
Plaintiff-Respondent in the suit proceeded on the basis that he
had title over the property in suit by reason of the grant of permanent lease
in terms of the order dated 30.11.1979 passed by the Nayab Tehslidar.
the said order having regard to the subsequent event must be held to have not
attained finality. If the contention of the appellant that the property
belonged to her father, and the same devolved on plaintiff and his 6 brother in
equal shares, is correct, the subsequent events which have taken place, in our
opinion, should have been taken into consideration by the High Court. If the
other brother of the plaintiff had equal share in the property, who is now
dead, and whose heirs and legal representatives are said to be residing in the
same premises, the High Court may have to consider the effect of their
non-impleadment in the suit. Plaintiff, as noticed hereinbefore, filed the suit
only in terms of the order of grant of permanent lease on or about 30.11.1979.
If that has not attained finality by reason of the subsequent events and
awaiting the decision of the Civil Court, the effect thereof must be taken into
consideration by the High Court.
For the reasons aforementioned, the impugned judgment is set aside
and the matter is remitted to the High Court for consideration of the matter
afresh upon formulating substantial questions of law.
The appeal is allowed with the aforementioned observations. No
...............................J. [S.B. Sinha]
................................J. [Dr. Mukundakam Sharma]