Rai Sahib Dr. Gurdittamal Kapur Vs.
Mahant Amar Das Chela Mahant Ram Saran & Ors  INSC 71 (19 March 1965)
19/03/1965 MUDHOLKAR, J.R.
CITATION: 1965 AIR 1966 1965 SCR (3) 433
Adverse possession-Doubtful whether Akhara,
or its Mahant was occupancy tenant-Forfeiture of tenancy-Right of Mahant's
successor to sue for possession.
The appellant was the owner of the suit land.
Alleging that the 2nd respondent, who was the Mahant of an Akhara, was the
occupancy tenant and that he had allowed his lessee to dig it up and rendered
it unfit for cultivation, the appellant evicted the 2nd respondent from a part
of the land in 1940, and from the rest of it in 1943. In 1950, the 2nd
respondent was removed from the office of Mahant, in proceedings under s. 92,
C.P.C., and in 1953, the 1st respondent was appointed in his place. In 1957 the
1st respondent filed a suit for possession of the land, alleging that the
Akhara itself was the occupancy tenant. The trial court decreed the suit and
the High court confirmed the decree.
In the appeal to this Court, the appellant
contended that the suit was barred by limitation.
HELD: Upon the eviction of the 2nd respondent
the occupancy right in the land merged in the right of ownership of the
appellant. Apart from it, the actual physical possession of the land having
been continuously with the appellant to the exclusion of the occupancy tenant,
whether it was the 1st respondent or the Akhara itself, for a period of more
than 12 years before the institution of the suit, the occupancy right was
extinguished. If the 2nd respondent represented the Akhara in the eviction
proceeding the decrees therein would bind the 1st respondent as his successor.
If the 2nd respondent did not represent the Akhara, the possession of the
appellant under those decrees would be adverse to the Akhara. The 2nd
respondent as the Mahant, or the Receiver appointed by the Court In the s. 92
proceedings, could have filed a suit on behalf of the Akhara, and so, the 1st
respondent's suit after 12 years of adverse possession by the appellant was
438F-H] Sudaram Das v. Ram Kirpal, L.R. 77
T.A. 42 and Subbaiya V. Mustapha, L.R. 50 I.A. 295, applied Dwijendra Narain
Roy v. Joges Chandra De, A.I.R. 1924 Cal.
600, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 471 of 1963.
Appeal by special leave from the judgment and
decree dated November 9- 1960 of the Punjab High. Court in Regular Second
Appeal No. 1627 of 1960.
434 S. V. Gupte, Solicitor General, B. K.
Khanna, R. K. Garg, D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the
N.C. Chatterjee and M.S. Gupta, for
respondent No. 1.
P.K. Chatterjee and R.H. Dhebar, for
respondent No. 11.
The Judgment of the Court was delivered by
Mudholkar, J. The short point which falls to be considered in this appeal by
special leave from a judgment of the High Court of Punjab dismissing the
appellant's appeal in limine is whether the suit for possession instituted by
the plaintiff-respondent No. 1 is within time. There are ten respondents to the
appeal out of whom only two, the plaintiff-respondent No. 1 Amardas and
respondent No. 11 Union of India are represented. While the appeal is contested
by the first respondent it is supported by the Union of India. The facts which
are not disputed before us are briefly these:
The appellant has a share of 1221/143 1/2 in
the land in suit. The occupancy tenant of this land is Akhara Nirbansar of
Sultanwind Gate, Amritsar. The second respondent Ram Saran Das was Mahant of
this Akhara till the year 1950 when he was removed by virtue of an order made
by a civil court in a suit under s. 92 of the Code of Civil Procedure,
confirmed in appeal on September 11, 1950. On December 29, 1953 respondent No.
1 was appointed as Mahant in place of respondent No. 2.
On September 15, 1939 the appellant
instituted a suit in a revenue court under ss. 38 and 39 of the Punjab Tenancy
Act (hereafter referred to as the Act) for possession of 141 kanals 8 marlas of
land on the ground that he had granted a sub-lease thereof for the manufacture
of bricks to someone by utilising earth dug up from that land. This, according
to the appellant, was in contravention of the provisions of s. 39 of the Act
and entitled him to eject respondent No. 2.
The Revenue Court held that out of the land
sub-leased by respondent No. 2 only a certain portion was dug up by the
sub-lessee and, therefore, the ejectment of the second respondent was confined
to that area of land which had been dug up. The date of the ejectment decree
was June 3, 1940.
The second respondent preferred an appeal
before the Collector from that decree which was dismissed on October 19, 1940.
Shortly thereafter the appellant obtained possession of the land from which the
second respondent was ordered to be ejected. The lessee of the second
respondent, however, continued to dig up the rest of the land and, therefore,
the appellant instituted a second suit for the ejectment of the second
respondent therefrom. The Assistant Collector who tried the suit granted a
decree to the appellant in respect of the entire land which was left with the
second respondent after he was dispossessed from a part of the land leased to
him under the earlier decree. In appeal, however, the Collector modified the
order of 435 ejectment by leaving out of the land 29 kanals and 14 marlas. This
order was made on May 31, 1943. Shortly thereafter the appellant obtained
possession of the land with respect to which the Collector had confirmed the
order of ejectment in the appeal.
On March, 18, 1957 the first respondent
instituted a suit against the appellant and the second respondent. According to
respondent No. 1 Akhara Nirbansar was not bound by the actions of Mahant Ram
Saran Das, the second respondent, which were tantamount to alienation of the
land which, according to him, were neither for legal necessity nor for the
benefit of the estate. He contended that on the contrary the action of Ram
Saran Das in alienating the land was unauthorised and illegal and because what
he did was not for legal necessity nor for conferring any benefit on the
The appellant contested the suit on two main
grounds. The first was that the land in question was never attached to the
Akhara but that Mahant Ram Saran Das, the second respondent, was its occupancy
tenant and that as the sub- lessee of the land had dug it up and rendered it
unfit for cultivation the appellant as the owner of the land was entitled to
eject respondent No. 2 by forfeiting the lease.
He denied that the land was wakf property and
contended that the occupancy rights existing in favour of the second respondent
were extinguished by the orders of the revenue courts which still hold good.
The second point was that as the appellant was in continuous possession of the
land in suit as owner in his own right for more than 12 years preceding the
suit openly and to the exclusion of the second respondent and respondent No. 1
the suit was barred by time.
In his replication respondent No. 1
reiterated that the property in suit belongs to and is owned by the Akhara
Nirbansar as its occupancy tenant and that the second respondent was never its
Occupancy tenant. Therefore, according to him, there was no question of
extinguishment of occupancy rights in consequence of the two decrees made by
the revenue courts. He contended that the action of the second respondent in
leasing out the land for digging up earth was a transfer which, not being for
legal necessity nor for the benefit of the estate, was unauthorised.
According to him the mere fact that the
appellant was in possession of the land for more than 12 years makes no
difference to the suit and that the land being trust property a suit for its
recovery could be brought within 12 years from the date of "death, resignation
or removal" of the manager of such a property. He added that there was no
question of the appellant being in possession in his own right of the land for
more than 12 years. The suit was decreed by the trial court and its decision
was unheld in appeal by the second Additional District Judge, Amritsar.
The appellant's second appeal was dismissed
in limine by the High Court.
436 Upon the view which we take on the
question of limitation it has become unnecessary to decide the other points.
The learned Selicitor General who appears for
the appellant relies strongly upon the averments of the appellant in his
written statement that he is occupying the land in suit for a period of over 12
years from the date of the institution of the suit as owner in his own right
and not as an occupancy tenant and that even if his occupation is regarded to
be that of an occupancy tenant as alleged by the first respondent, he has
acquired the proprietary rights in this property by operation of statute. The
Solicitor General relies on the further averments to the effect that the
original occupancy tenant of the land was the second respondent and not the
Akhara and also contended that whether it was one or the other made no
difference. For, the tenant's occupancy rights were extinguished by the decrees
passed in the ejectment suits and consequently there was no cause of action for
the present suit. As pointed out by the learned Solicitor General, respondent
No. 1 in his replication has not disputed the fact that the appellant was in
possession for more than 12 years before the institution of the suit and that
the only way in which he tried to meet it was by saying that this fact made no
difference to his case.
It seems to us clear that upon the eviction
of respondent No. 2 from a part of the land in the year 1940 and the rest of it
in the year 1943 the occupancy right with respect to the land merged in the
right of ownership of the appellant.
Apart from that it is clear that the actual
physical possession of the land having been continuously with the appellant to
the exclusion of the occupancy tenant, whether it was respondent No. 1 or the
Akhara itself. for a period more than 12 years before the institution of the
suit that right was extinguished.
Mr. Gupta, learned counsel for respondent No.
1, however, sought to meet this position by urging that the second respondent's
act amounted to an alienation, that it was not established that it was for
legal necessity and that, therefore, respondent No. 1 as the successor of respondent
No. 2 to the office of Mahantship of the Akhara could institute a suit within
12 years of his succession to the office. This succession to his office must,
according to him, be deemed to have occurred when upon the dismissal in the
year 1950 of the appeal preferred by respondent No. 2 against the decision of
the trial court removing him from Mahantship; later the respondent No. 1 was
appointed a Mahant. That was on December 12, 1953. The suit having been filed
within 12 years of that date, so Mr. Gupta contends, must be held to be within
time. The simple answer to this contention is that what happened in this case
was the forfeiture of the occupancy tenancy by the appellant as landlord. In no
sense can this be regarded as, or even likened to alienation, which is a
voluntary act of the alienor in favour of the alienee. The appellant is thus
not an alienee from the respondent No. 2 Ram Saran Das.
437 Mr. N. C. Chatterjee who also appeared
for the first respon- dent raised a novel contention. According to him, adverse
possession against the Akhara, which was the real occupancy tenant, could not
commence till respondent No. 1 was appointed as Mahant because during the
interval there was no person who was competent to institute a suit on behalf of
the Akhara for the possession of the lands of which the appellant was in
adverse possession. In support of the contention he has placed reliance upon
the decision in Dwijendra Narain Roy v. Joges Chandra De(1). In particular
learned counsel has relied upon the following observations of Mookerjee J., who
delivered the judgment of the Court.
"The substance of the matter is that
time runs when the cause of action accrues, and a cause of action accrues, when
there is in existence a person who can sue and another who can be sued.........
The cause of action arises when and only when the aggrieved party has the right
to apply to the proper tribunals for relief. The statute (of limitation) does
not attach to a claim for which there is as yet no right of action and does not
run against a right for which there is no corresponding remedy or for which
judgment cannot be obtained. Consequently the true test to determine when a
cause of action has accrued is to ascertain the time when plaintiff could first
have maintained his action to a successful result." (P. 609).
He further brought to our notice that these
observations have received the approval of this Court in F. Lakshmi Reddy v. L.
Lakshmi Reddy(2), at p. 206. In the case which came up before this Court the
facts which are set out in the head note were as follows:
"V died an infant in 1927 and H, an
agnatic relation filed a suit for the recovery of the properties belonging to V
which were in the possession of third parties, on the ground that he was the
sole nearest male magnate entitled to all the properties. During the pendency
of the suit a Receiver was appointed for the properties in February, 1928. The
suit having been decreed H obtained possession of the properties from the
Receiver on January 20, 1930, and after his death in 1936, his nephew, the
appellant, got into possession as H's heir. On October 23, 1941 the respondent
brought the present suit for the recovery of a one third share of the
properties from the appellant on the footing that he and his brother were
agnatic relations of V of the same degree as H, that all the three were equal
co-heirs of V and that H obtained the decree and got into possession on behalf
of all the co-heirs. The appellant resisted the suit and contended that the
respondent lost his right by the adverse possession of H and his successor and
that for this purpose not only the period from (1) A.I.R. 1924 Cal. 600.
(2)  S.C.R. 195.
438 January 20, 1930 to October 23, 1941 was
to be counted but also the prior period when the Receiver was in possession of
the properties during the pendency of H's suit. It was found that the
respondent's case that H obtained the decree and got possession from the
Receiver on behalf of the other co-heirs was not true." The facts of that
case were different and it was on these facts that this Court held that the
respondent did not lose his right by adverse possession. It is in the context
of these facts that the learned Judges cited with approval the observations of
Mookerjee J., which we have set out.
Assuming these observations are sound, it
cannot be said in the case before us that at any point of time there was no
person who was competent to institute a suit on behalf of the Akhara.
Respondent No. 2 was still the Mahant and could well have instituted a suit on
behalf of the Akhara if in fact there was any cause of action for such a suit.
Further, in the course of the suit the
possession was with a Receiver who had been appointed by the court and was thus
competent in law to institute a suit.
We may point out that a Mahant of an Akhara
represents the Akhara and has both the right to institute a suit on its behalf
as also the duty to defend one brought against it.
The law on the subject has been stated very
clearly at pp.
274 and 275 in Mukherjea's Hindu Law of
Religious and Charitable Trust, 2nd, ed. It is pointed out that in the case of
an execution sale of debutter property it is not the date of death of the
incumbent of the Mutt but the date of effective possession as a result of the
sale from which the commencement of the adverse possession of the purchaser is
to be computed for the purposes of art. 144 of the Limitation Act. This is in
fact what the Privy Council has laid down in Sudarsan Das v. Ram Kirpal (1). A
similar view has been taken by the Privy Council in Subbaiya v. Mustapha(2).
What has been said in this case would also apply to a case such as the present.
Thus if respondent No. 2 could be said to have represented the Akhara in the
two earlier suits, decrees made in them would bind the respondent No. 1 as he
is successor in office of respondent No. 2. On the other hand if respondent No.
2 did not represent the Akhara, the possession of the appellant under the
decree passed in these suits would clearly be adverse to the Akhara upon the
view taken in the two decisions of the Privy Council just referred to. The
first respondent's suit having been instituted after the appellant has
completed more than 12 years of adverse possession must, therefore be held to
be barred by time. For these reasons disagreeing with the courts below we set
aside the decrees of the courts below and instead dismiss the suit of
respondent No. 1 with costs in all the courts.
(1) L. R. 77 I.A. 42.
(2) L.R. 50 I.A. 295.