Arvind Kumar Vs. Government of India & Ors.  Insc 667 (28 May 2007)
R.V. Raveendran & Lokeshwar Singh Panta
R.V. Raveendran, J.
This is an appeal by special leave against the judgment and decree dated
10.7.2001 in RFA No.181/1996 passed by the High Court of Karnataka reversing
the judgment and decree dated 8.12.1995 passed by the III Addl. City Civil
Judge, Mayo Hall, Bangalore in his suit OS.No.10653/1987. For convenience, the
appellant will also be referred to as 'plaintiff' and respondents as 'defendants'.
2. Appellant filed the said suit alleging that suit land measuring 2550 sq. yds.
had been leased in perpetuity by the military authorities (General Officer
Commanding, Madras District, Bangalore) to M/s S.
Giridharilal & Son, a proprietary concern under a registered lease deed
dated 30.9.1921; that the lessee put up several structures thereon and was in
possession and enjoyment thereof as absolute owners; that G.
Anraj Sankla, proprietor of Giridharilal & Son was declared as insolvent
in Insolvency Case No.7 and 12 of 1940 on the file of the District Judge, Civil
& Military Station, Bangalore and the Official Receiver took charge of the
insolvent's properties including the said land with buildings (for short 'suit
property'); that the Official Receiver put up the suit property for sale by
auction; that M. Bhowrilal, father of plaintiff was the highest bidder and the
sale of the right, title and interest of Anraj Sankla that is, his leasehold
rights, in regard to the suit property in favour of M. Bhowrilal was confirmed
on 25.8.1941 and Sale Certificate was issued to him on 29.8.1941 which was duly
registered. After the death of his father on 21.7.1969, he came into possession
and enjoyment of the suit property. According to the appellant though the lease
was one in perpetuity, it was an absolute grant and since no premium or rent
was fixed, the enjoyment was to be perpetual and absolute. When matters stood
thus, the Commanding Officer of Station Headquarters, Bangalore (Fourth
Defendant), under instructions from the first defendant, illegally and unauthorizedly
dispossessed him from the suit property in September, 1975, during the
emergency period. Thereafter, he was corresponding with the Defence Ministry
for relief, and they went on promising to look into the matter. Ultimately, as
they failed to give any relief, he issued a notice through counsel under
Section 80 of the Code of Civil Procedure on 8.5.1984, followed by another
notice dated 13.4.1987, claiming possession of the suit property. As the said
demand was not complied with, he filed the suit (OS No.10653/1987) on 21.8.1987
for the following reliefs:
(a) for a declaration that he was the absolute owner of the suit property;
(b) for a direction to the defendants to deliver back possession of the suit
property to him; and (c) for mesne profits, costs and other appropriate reliefs.
3. The suit was resisted by the Defendants-Respondents. They contended that
S. Giridharilal & Son was only a lessee and therefore, plaintiff even if he
was the successor-in-interest could under no circumstances, claim absolute
ownership. It was also alleged that they had taken action for resumption of the
leased land for contravention of the terms of lease (construction of
unauthorized structures and failure to notify the lessor about transfer of the
leasehold rights) and the suit land was surrendered without protest. The
allegation of forcible dispossession in September, 1975 was denied. It was also
contended that the only relief sought by the plaintiff in his several
representations and letters, in respect of the resumption of the leased land,
was compensation for the structures; that the claim was not entertained as the
structures were unauthorized; and that if there was any dispute or outstanding
claim in that behalf, he should have sought reference to arbitration in terms
of the lease-deed, and the suit was misconceived and not maintainable.
4. On the said pleadings, the trial court framed the following issues :
(1) Whether the plaintiff proves that he is the absolute owner of the suit
(2) Whether the defendants prove that there was contravention of the terms
of lease deed dated 30.9.1921? (3) Whether the Defendants prove that the
plaintiff has expressed his intention not to seek possession of the suit
property? (4) Whether the Defendants prove that the suit is barred by time? (5)
Whether the Defendants prove that suit is not maintainable for the reasons
stated in para 12 of the Written Statement.
(6) Whether the defendants prove that suit is bad for non- joinder of
necessary parties? (7) Whether the defendants prove that court fee paid is
insufficient? (8) What relief the parties are entitled to.
Plaintiff examined himself as PW1 and got exhibited Ex.P1 to Ex.P43.
The Defendants also examined one witness. After appreciating the oral and
documentary evidence, the trial court decreed the suit in part. It answered the
first issue against the plaintiff by holding that plaintiff had not acquired
ownership. It held issues (2) to (6) against the defendants.
It held that issue No.(7) did not survive for consideration. As a
consequence, it rejected the prayer for declaration of title and granted the
relief of possession to the Plaintiff and ordered a separate enquiry regarding mesne
5. Feeling aggrieved, the defendants filed RFA No.181/1996 before the High
Court. The High Court by judgment and decree dated 10.7.2001 allowed the appeal
and dismissed the suit. The judgment of the High Court is based on the
following findings of facts:
(a) The lease under deed dated 30.9.1921 (Ex.P1) was not a lease in
perpetuity, but only a tenancy at will.
(b) The sale certificate in favour of plaintiff's father (Ex.P3 dated
29.8.1941) was not followed by a registered instrument transferring the
lessee's interest in favour of plaintiff's father. Therefore, no title was
conveyed to plaintiff's father, in regard to the suit land.
(c) There was a clear embargo in the lease deed in respect of transfer of
the leasehold interest, without notice to the lessor and without the consent of
the lessor. There was no notice to the lessor in regard to the sale of
leasehold right nor consent for such auction sale. Therefore, the transfer of
leasehold interest was void, even though it was a court sale.
(d) The possession of plaintiff's father and later that of plaintiff was no
better than that of a trespasser as there was no valid transfer.
(e) As plaintiff had failed to prove title or leasehold interest, he was not
entitled to recover possession on the basis of possessory title. Nor was he
entitled to restitution of possession, on the facts of the case.
6. The appellant has challenged the said judgment and decree of the High
Court. He contends that the findings recorded by the High Court are erroneous
and contrary to the evidence and therefore, the judgment of the High Court is
liable to be set aside. The contentions of appellant gives rise to the
following points for consideration :
(i) Whether the lease under deed - Ex.P1 dated 30.9.1921, is a perpetual
(ii) Whether the plaintiff's father did not secure any manner of right,
title or interest in the suit property, as the sale certificate in his favour
was not followed by a registered deed of transfer.
(iii) Whether the transfer of leasehold interest in favour of plaintiff's
father was void, for want of notice to lessor and consent of the lessor.
(iv) Whether the plaintiff was forcibly dispossessed in September 1975 and
entitled to a decree for possession.
(v) Whether the suit was barred by limitation.
Re: Point (i)
7. Section 105 of Transfer of
Property Act, 1882 defines lease as follows :
"A lease of immovable property is a transfer of a right to enjoy such
property, made for a certain time, express or implied or in perpetuity, in
consideration of a price paid or promises or of money, a share of crops,
service or any other thing of value, to be rendered periodically or on
specified occasions to the transferor by the transferee, who accepts the transfer
on such terms.
Lessor, Lessee, Premium and Rent defined - The transferor is called the Lessor,
the transferee is called the Lessee, the price is called the Premium, and the
money, share, service or other thing to be so rendered is called the
Thus the essential ingredients of a lease are : (a) There should be a
transfer of a right to enjoy an immovable property; (b) Such transfer may be
for a certain term or in perpetuity; (c) The transfer should be in
consideration of a premium or rent; (d) The transfer should be a bilateral
transaction, the transferee accepting the terms of transfer.
8. In this case the plaintiff claims that the suit land was leased in
perpetuity by the General Officer Commanding, Madras District, Bangalore under
Ex.P1 dated 30.9.1921. Condition II provides that the lessee can erect
buildings on the schedule land only in accordance with the plan with the
written permission of the General Officer Commanding or by any of his principal
staff officers. Condition III provides that the land shall not be used for any
purpose other than that specified in the lessee's application. Condition III
(A) provides that no rent is payable in respect of the lease. Condition IV
provides whenever it is intended to transfer the leasehold interest by sale,
gift, mortgage or exchange, the lessee or the intending transferor shall give
the lessor one month's notice in writing before the transfer is completed; and
the lessor shall have the power to veto on any such transfer within one month.
It further provides that if notice of such intended transfer was not given or
if such transfer was made after the same has been vetoed, the transfer shall be
void. Condition V provides that every person, on whom the lessee's interest in
the land or the buildings erected on the land may devolve by transfer, by
succession or by operation of law, shall send to the lessor within one month
from the date of such devolution, a report in writing of that fact together
with such particulars as may be required.
Condition VII provides that so long as the lessee observes the conditions to
be observed by him, he may subject to condition IX, hold the land for ever
without interruption. Condition IX provides that the lessor may resume the land
or any portion thereof at any time after giving one month's notice in writing
and on payment of compensation for the buildings erected on the land, upon
proper authority; and if there is any dispute as to the amount of such
compensation, the same shall be referred to a Committee of Arbitration and the
lessee shall be bound by the decision of such Committee of Arbitration.
9. To decide the duration of the lease, the deed has to be read as a whole.
The deed dated 30.9.1921 does not specify any duration, but permits the lessee
to hold the land forever subject to the right of the lessor to resume the land
by giving one month's notice. There is no grant in perpetuity. The right of the
lessor to resume the land by giving a month's notice, is unconditional at the
absolute will and discretion of the lessor, whenever he desires. These terms
indicate that though the instrument was termed as a lease, it only granted
permissive occupation terminable at the will of the owner, and therefore, at
best a tenancy at will. The absolute discretion to resume the land at any time
without assigning any reason, and absence of any express grant in perpetuity
and absence of any consideration, militates against the instrument being
construed as a lease in perpetuity. The learned counsel for appellant submitted
that courts have taken the view that existence of a mere provision for
forfeiture for non-payment of rent or other specified breach, in a deed
granting permanent lease, will not make the lease non- permanent. Such line of decisions,
may not assist the appellant as a provision for determination of the lease for
a specified breach, is in no way comparable to reservation of an absolute right
to resume at will without assigning any reason, in a lease without
consideration. We, therefore, affirm the finding that Ex.P1 is not a lease in
perpetuity. We, however, desist from examining the further question whether the
lease itself was invalid for want of consideration, as such a contention was
not raised in the written statement nor urged before the trial court or High
Re : Point (ii)
10. The plaintiff has produced the original registered sale certificate
dated 29.8.1941 executed by the Official Receiver, Civil Station, Bangalore.
The said deed certifies that Bhowrilal (father of plaintiff) was the highest
bidder at an auction sale held on 22.8.1941, in respect of the right, title,
interest of the insolvent Anraj Sankla, namely the leasehold right in the
property described in the schedule to the certificate (suit property), that his
bid of Rs.8,350 was accepted and the sale was confirmed by the District Judge,
Civil and Military Station, Bangalore on 25.8.1941. The sale certificate
declared Bhowrilal to be the owner of the leasehold right in respect of the
suit property. When a property is sold by public auction in pursuance of an
order of the court and the bid is accepted and the sale is confirmed by the
court in favour of the purchaser, the sale becomes absolute and the title vests
in the purchaser.
A sale certificate is issued to the purchaser only when the sale becomes absolute.
The sale certificate is merely the evidence of such title. It is well settled
that when an auction purchaser derives title on confirmation of sale in his favour,
and a sale certificate is issued evidencing such sale and title, no further
deed of transfer from the court is contemplated or required. In this case, the
sale certificate itself was registered, though such a sale certificate issued
by a court or an officer authorized by the court, does not require
registration. Section 17(2)(xii) of the Registration Act, 1908
specifically provides that a certificate of sale granted to any purchaser of
any property sold by a public auction by a civil or revenue officer does not
fall under the category of non testamentary documents which require
registration under sub-section (b) and (c) of section 17(1) of the said Act. We
therefore hold that the High Court committed a serious error in holding that
the sale certificate did not convey any right, title or interest to plaintiff's
father for want of a registered deed of transfer.
Re : Point (iii)
11. Condition IV of the lease deed provides that a transfer of the lease by
way of sale, gift, mortgage or exchange shall be void if intimation thereof is
not given to the lessee. Condition V requires a report in writing to be sent to
the lessor by the transferee of lessee's interest by succession or operation of
law. Condition IV deals with transfers inter vivos (transfer from one living or
juristic person to another living or juristic person) and Condition V deals
with devolution by succession or by operation of law including auction sales
confirmed by court. Only transfers in violation of Condition IV are void. No
penal consequence is specified for failure to comply with Condition V.
Therefore, it is not possible to hold that the auction sale of the leasehold
right in favour of Bhowrilal was void for want of notice to the lessor.
Re : Points (iv) and (v)
12. In this case the plaintiff approached the Civil Court with a specific
case that he was the owner of the suit property and that he was illegally
dispossessed by the defendants in September 1975 and sought a declaration of
title as absolute owner and for delivery of possession. He also contended that
as the suit was filed within 12 years from the date of dispossession, the suit
was within time. The plaintiff admitted in the plaint that the suit property
was leased to M/s S. Giridharilal & Son and his father purchased only the
leasehold right in a court auction in 1941.
Therefore, the trial court rightly found that the plaintiff did not
establish ownership to the suit property and therefore, did not grant the
relief of declaration of title. That finding attained finality as the Plaintiff
did not choose to challenge the rejection of the prayer for declaration of
Therefore, the only question that remained for consideration was whether the
plaintiff has made out any case for the relief of possession.
Plaintiff's specific case is that in September 1975 during emergency period,
he was forcibly dispossessed. Obviously, therefore, he will be entitled to a
decree for possession only if he establishes that he was forcibly dispossessed from
lawful possession and such dispossession was within 12 years prior to the date
of the suit (21.8.1987).
13. The plaintiff who was examined as PW1 stated that in September, 1975,
fourth defendant forcibly dispossessed him from the suit property without any
notice. No other witness was examined to corroborate his testimony. No other
evidence was let in to show that he was in possession of the suit property in
September, 1975 or that he was illegally dispossessed. In his
cross-examination, he admitted that he was never in personal possession and
that his tenant was in possession.
There was also no evidence in regard to the measurement of the alleged
structures. The evidence of plaintiff shows that neither he nor his alleged
tenant gave any complaint regarding the forcible dispossession. In fact, no
document was produced to show that any tenant of plaintiff was in possession in
1975. The documentary evidence produced by the plaintiff himself, however, tell
a different story regarding dispossession.
14. Ex.P10 dated 6.3.1976 is a letter from plaintiff to fourth defendant. In
that letter, he makes a vague allegation that the defendants were trying to
commit acts of trespass and take forcible possession of the property. The said
letter was sent nearly six months after September 1975. If he had already been
dispossessed from the suit property in September 1975, the tenor of the letter
would have been completely different. Be that as it may.
15. Ex.P16 dated 27.4.1977, is a letter written by the plaintiff's advocate.
It states that plaintiff had already furnished necessary documents and
therefore the fourth defendant should take immediate steps to resolve the
question of compensation. This document does not speak about forcible
dispossession at all. In Ex.P23 dated 21.2.1979, Ex.P26 dated 30.1.1980 and
Ex.P31 dated 9.3.1981, all referring to the subject "resumption of defence
land (suit property)", plaintiff requests the defendants to take immediate
steps to resolve the question of compensation. These letters clearly show that
the suit land was already resumed by the defendants in terms of the lease and
that plaintiff was seeking only compensation and nothing more. In fact, the
plaintiff specifically stated thus in Ex.P31 dated 9.3.1981 :
"I have already expressed that I have no objection for the resumption
of the land in question provided suitable compensation for the property created
on the land is paid to me."
Again in Ex.P34 dated 11.5.1981 and Ex.P35 dated 16.11.1981, the plaintiff,
with reference to the subject of resumption of the suit land, requested that
compensation be paid to him at the earliest. Alternatively, he requested that
resumption may be cancelled.
16. It is thus seen from 1975, when the plaintiff alleges that he was
forcibly dispossessed from the suit property, till 1981 there is no whisper in
any of the letters written by the plaintiff (either personally or through
counsel) about any forcible dispossession in September, 1975.
On the other hand, all the letters specifically refer to resumption of the
land by defendants and seek only compensation. It can be inferred from these
letters that the suit property had been resumed long prior to September, 1975
in accordance with the terms of the lease deed, that from about 1976-1977,
plaintiff attempted to get some compensation for the structures, that as the
records did not show any authorized structures, the defence department sought
documents and clarifications and plaintiff furnished some documents to claim
compensation. Having failed in his claim for compensation and being tempted by
the steady rise in property values in the area, the plaintiff has apparently
put forth a case of forcible dispossession in September, 1975.
17. Significantly, in the notice dated 8.5.1984 (Exhibit P.40) sent through
counsel under Section 80 CPC, the plaintiff for the first time alleged that in
the year 1975 the military authorities unauthorizedly and illegally and
forcibly dispossessed him from the property. The month or date of alleged
dispossession is not mentioned. The subsequent notice dated 13.4.1987 (Exhibit
P.42) makes an improvement as it is alleged therein that the forcible
dispossession was in the year September, 1975.
This was reiterated in the plaint. But the detailed correspondence
consisting of several letters and representations by Plaintiff from 1976 to
1981 do not refer to forcible dispossession but, on the other hand, refers to
resumption of possession by the Defence Department in terms of the lease and to
the claim of plaintiff for payment of compensation for the structures. It is,
therefore, clear that the case of plaintiff that he was forcibly dispossessed
from the suit land in September, 1975 is an afterthought to grab defence land.
As plaintiff has failed to prove forcible dispossession and the documents
disclose that the land was resumed in terms of the lease dated 30.9.1921
without any protest from the plaintiff, he is not entitled to the relief of
possession, even if such dispossession was within twelve years before the date
of suit. Apart from merits, the claim for possession is also clearly barred by
limitation as the suit was filed on 21.8.1987 and plaintiff was lawfully
dispossessed several years prior to 1975.
18. If at all there is any dispute or issue was pending, that was relating
to the claim for compensation and plaintiff had to seek arbitration in that
behalf by establishing that structures were lawfully put up with the permission
of the lessor and the nature and extent of such structures. But no such request
was made for arbitration. No such relief is claimed in the plaint. At all
events by 1987, there was no surviving claim for compensation and no request
could even be made for reference to arbitration. The plaintiff - appellant is
not therefore entitled to any relief.
19. Though the judgment of the High Court may be erroneous in regard to
certain issues of fact, we find that the final decision of the High Court to
dismiss the suit was correct and just and does not call for interference. We,
therefore, affirm the decision of the High Court dismissing the suit.
20. The appeal is, accordingly, dismissed. Parties to bear their respective
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