Udho And Others v. Smt. Khimian And Others

1. The suit giving rise to this second appeal was instituted by the predecessors-in-interest of the plaintiff-respondents in the court of Munsif, Moradabad on 18-10-1966 for possession over two rooms situate in the city of Moradabad on the allegations that the property was purchased by one Uttam, father of the respondents by means of a registered sale-deed dated 29-1-1902 and since then the plaintiffs had been in possession thereof as owners, that some thatched houses were originally built up on the said property and the same had undergone changes and alterations, that Udho, defendant No. 1 had originally taken the said rooms for the purpose of tethering his cattle from Uttam's predecessor as licensee but later on Udho started paying rent to him and thus he became the tenant of the disputed property. It was alleged that Udho also paid rent to the father of the plaintiffs that the present plaintiffs had filed an earlier suit No. 335 of 1964 in the court of the Munsif, Moradabad on the basis of tenancy, which was, however, dismissed on the ground of a legal defect in the notice on 31-8-1965 and also on the finding that the plaintiffs had failed to prove that there existed the relationship of landlord and tenant between the parties. The plaintiffs, therefore, filed the present suit for ejectment against the defendants on the basis of their title. The defendants filed their written statement alleging that they had been residing in the disputed accommodation by virtue of their being the owners, that Uttam never let out the disputed accommodation to the defendants, that the plaintiffs had never been in possession within 12 years preceding the filing of the suit and the suit was barred by limitation. The defendants also took the plea that they had acquired rights of ownership by virtue of their being in adverse possession for a period of more than 12 years. Some other pleas were also raised which are no longer relevant.

2. The trial court decreed the suit for recovery of possession after eviction of the defendants from the accommodation in dispute and on appeal the decree was affirmed. The findings recorded by the courts below are:

(i) that the plaintiffs are the owners of the disputed property,

(ii) that the defendants were the tenants of the plaintiffs,

(iii) that the suit was barred by time as the plaintiffs had failed to prove their possession within 12 years prior to the suit, and

(iv) that the defendants had not become owners by adverse possession.

3. As I have already indicated, the plaintiffs had brought, an earlier suit also on the allegation of tenancy which they had failed to establish but in the present suit the courts below have arrived at a contrary finding and the first question which arises is as to whether the finding recorded in the earlier suit No. 335 of 1964 to the effect that the relationship of landlord and tenant did not exist between the defendants and the plaintiffs would operate as ‘res judicata’ in the present case. Admittedly that suit was between the same parties and it had been brought on the allegation of tenancy of the defendants and the following issue was struck by the trial court as issue No. 1 in that case:

“Whether there existed a relationship of landlord and tenant between the parties as alleged?”

4. Holding that there was no reliable evidence on behalf of the plaintiffs in support of their plea the issue was decided against the plaintiffs in that suit. That judgment became final between the parties and it is neither claimed nor is there any evidence of that decree having been challenged in appeal.

5. As has been repeatedly emphasised, it is not possible to postulate any hard and fast rule as to whether a previous decision in a suit for rent does or does not operate as ‘res judicata’ in a subsequent suit based on title. The answer would ultimately depend upon the fact as to whether the issue raised in the subsequent suit was directly and substantially in issue in the former suit and this would again depend on the circumstances of each case. If it was directly and substantially in issue in the former suit, the finding on that issue would operate as ‘res judicata’. But if it was not in issue at all or was only collaterally and incidentally in issue it would not so operate. In the instant case, however, we have seen that in the previous suit the allegations were identical and a definite issue on that point had been framed on the basis of the pleadings of the parties and a categorical finding had also been recorded. Hence, it cannot be argued with any show of force that the point was only incidental or collateral and was not directly and substantially in issue. Numerous decisions can be cited to support the contention. It was held by a Division Bench of the Oudh Chief Court in Bijai Bahadur Singh v. Bhagwan Baksh Singh, AIR 1930 Oudh 335 that if in a previous suit by landlord against the tenant for rent the questions of status and rate of annual rent were directly and substantially in issue, they would operate as res judicata in a subsequent rent suit between the same parties of the landlord and the tenant's assignees or transferees, and this would be the case, even though the decree in the previous case might have been ex parte. The same view was endorsed by the Patna High Court in Pardip Singh v. Ram Sunder Singh, AIR 1949 Pat 510, It was held:

“Ordinarily the decision would be res judicata only with regard to the existence of the relationship of landlord and tenant.”

6. It was further held:

“The principle of res judicata cannot be whittled down, and the decision of the Rent Court would be undoubtedly res judicata on the question as to whether the particular tenancy, which was asserted, did or did not in fact exist. Where, however, there was a clear decision that it did not exist, and that decision had no reference at all to the years in suit and was a decision generally, based on an examination of the entire position that the relationship of landlord and tenant had never existed, it is res judicata on that point.”

7. The same principle was declared in an earlier Full Bench decision of the Allahabad High Court See Mullo v. Ram Lal, AIR 1921 All 348 (2). The facts of that case were that in a former suit for rent in a revenue court the defendants contended that they were occupancy tenants and not sub-tenants of the plaintiffs as alleged and were not liable to pay rent. The suit was, however, decreed against them. Subsequently the defendants brought a suit for a declaration that they were the occupancy tenants of the land. It was held that the decision of the revenue court barred the suit. The Calcutta High Court had also endorsed the same opinion in Syam Lall Nasua v. Brindaban Chandra, AIR 1924 Cal 460. In that case the plaintiff had sued the defendants for arrears of rent in 1915 on the allegation that they held the disputed land under him as his tenants. The defendants pleaded that they were not tenants and set up a title in themselves. The court came to the conclusion that the plaintiff had failed to prove the relationship of landlord and tenant between the parties and in that view dismissed the suit for rent. The plaintiff then instituted another suit to eject the defendants on the allegation that they were trespassers. It was held that the previous decision was conclusive on the point that the defendants were not the tenants of the plaintiff during the years for which the rent was then claimed. It was held in Umedali Munshi v. Goyjapdi Molla, AIR 1926 Cal 114 that an ex parte decree for rent which was subsequently satisfied could operate as res judicata on the question of the parties being landlord and tenant. From the facts on record it is manifest that there cannot be a more patent case than the one in hand where the same point regarding the relationship of landlord and tenant between the parties was directly and substantially in issue in the previous suit. Therefore, in my opinion the courts below acted illegally in going behind the finding recorded in the earlier suit and holding in the present suit that the defendants were tenants of the plaintiffs. I, therefore, set aside that finding and hold that the defendants were not the tenants of the plaintiffs.

8. From this, however, it does not follow that the defendants were trespassers. Even though the previous suit based on the allegation of the relationship of landlord and tenant was dismissed, it was certainly open to the plaintiffs to bring the present suit for possession on the basis of their title. The concurrent findings of fact now recorded bar the courts below are that the plaintiffs have succeeded in establishing their title, they are the owners of the property in suit. That finding cannot be disturbed in second appeal. I have already held that the defendants are not the tenants of the plaintiffs and the present suit is on the basis of title which has been found to vest in the plaintiffs. It is admittedly a suit for possession of immoveable property and would be governed by the provisions of either Article 142 or Article 144 of the Indian Limitation Act.

9. The proposition is supported by numerous authorities that a suit for possession of immoveable property would be governed by Article 142, if it could be inferred from the facts of the case (primarily from the allegations made in the plaint and ultimately from proved facts) that the plaintiff had been dispossessed or had discontinued possession. Where Article 142 is attracted the burden of proof lies on the plaintiff to show that the date of dispossession or discontinuance of possession which gave him the cause of action for the suit was within 12 years preceding the suit. On the other hand, if a suit is not for possession based on the ground of dispossession or discontinuance of possession but is a suit for possession of immoveable property not specially provided for in any other Article of the Act, then Article 144 would apply and on proof of title the plaintiffs suit cannot be dismissed until the defendant further establishes his adverse possession for more than 12 years. As observed by a Full Bench of this Court in Qadir Bux v. Ramchand, AIR 1970 All 289.

“No suit can be governed both by Articles 142 and 144. Where Article 142 is applicable, the residuary Article 144 cannot apply. The residuary Article 144 can apply only if none of the Articles 123 to 143 (including Article 142) is applicable.”

10. The point for consideration, therefore, is as to whether on the facts of the present case it can be said that the plaintiffs had been dispossessed or had discontinued their possession within the meaning of Art 142. Again, the guiding principle for ascertaining this position was formulated by the Full Bench in Qadir Bux's case (supra). It was observed (at p. 295):

11. The term “dispossession” applies when a person comes in and drives out others from the possession. It imports ouster: a driving out of possession against the will of the person in actual possession.

12. This driving out cannot be said to have occurred, when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person in possession but in accordance with his wishes and active consent. The term “discontinuance” implies a voluntary act and abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession, but this cannot be assumed. In short, for the purpose of Article 142 it must be clearly understood that the term ‘dispossession’ means the ouster of a person from possession and the term ‘discontinuance’ means the intention to abandon title. A perusal of the plaint in the present case leaves no room for doubt that there was no allegation of either dispossession or discontinuance of possession. As observed in the earlier part of this judgment, the plaint allegations were that the property in suit had been originally taken by the defendants from the plaintiffs' ancestor temporarily for tethering cattle but later the defendants began to pay rent and they became tenants. In para 4 of the plaint it was expressly averred that the relationship of landlord and tenant existed between the parties. Again, in para 7 of the plaint the allegation was that the tenancy of defendant No. 1 was determined by the notice dated 18-7-1976. Thus, it cannot be said that the plaintiffs came to the court with the allegations of either dispossession or discontinuance of possession, because none of the essential ingredients, namely ouster or intention to abandon title is present in the plaintiffs' pleadings. Therefore, Article 142 of the Limitation Act would not apply to the facts of the present case. Learned counsel for the appellants strongly relies on Sangam Lal v. Ganga Din, AIR 1946 All 389 which according to him was on all fours with the present case. It is true that the facts of that case were more or less similar to those of the present case and on those facts it was held by the Division Bench:

“As a matter of fact the allegations made in the plaint did amount to an allegation that the plaintiff had been dispossessed. In view of the pleadings and the findings arrived at Article 142 was applicable to the case. That being so, the suit was barred by limitation and the question of the defendant's adverse possession did not arise.”

13. It was also observed:

“A plaintiff cannot, by cleverly drafting his plaint, evade the burden of proof which Article 142 casts upon a person who is suing for possession on the ground of dispossession.”

14. But that decision was overruled by the Full Bench in Qadir Bux's case (supra) and the twin characteristics of ‘dispossession’ and ‘discontinuance of possession’ with their precise legal connotations were postulated. In view of this dictum I find it impossible to hold on the averments made in the plaint of the suit in the present case that the plaintiffs came on the ground of dispossession or discontinuance of possession. The possession alleged was initially of a licensee and later that of a tenant. Hence, it cannot be suggested that the defendants had come into possession against the will or consent of the plaintiffs. Where the allegations of ‘dispossession’ or ‘discontinuance of possession’ are missing, Article 142 would be excluded and the residuary Article 144 of the Limitation Act would be applicable. It need hardly be repeated that under Article 142 the plaintiff has to prove firstly his title and secondly his possession over the property, in suit within 12 years preceding the suit. Where, however, Article 144 of the Limitation Act applies, the plaintiff alleging his title must succeed if the title is proved and his suit cannot be dismissed unless the defendant proves his adverse possession. In that event it is wholly immaterial if the plaintiff has failed to prove his possession over the property within 12 years of the suit.

15. The trial court recorded a clear finding in the instant case that the defendants had not been able to prove their adverse possession and that finding was affirmed by the lower appellate court. That finding is not vitiated by any error of law. The courts below correctly applied the law for determination of the question as to whether the defendants had proved their adverse possession which they had pleaded. Learned counsel for the appellants strongly relied, on the statement of P.W 1 Suraj (plaintiff No. 1) that when he had let this property to the defendants, he was 25 years old whereas the age of the witness recorded by the court below at the time of his deposition was 40 years. From this it was sought to be argued that on the plaintiff's own showing it was clear that the plaintiff No. 1 had not been in possession over the property within 12 years preceding the suit. As I have already pointed out, this circumstance is of absolutely no consequence when Article 142 is not attracted to the facts of the case. The present case must be governed by the residuary Article 144. The burden of proving adverse possession, therefore, rested on the defendants. S. IX Khare, J. speaking for the Court remarked in Qadir Bux's case (AIR 1970 All 289 (FB)) (supra):

“Where Article 144 of the First Schedule to the Indian Limitation Act, 1908, applies, the question whether or not the plaintiff has been able to prove his possession within twelve years of the suit or the defendant had remained in possession for over twelve years before the date of the institution of the suit becomes immaterial, because in such cases it is for the defendant to prove adverse proprietary possession for more than twelve years preceding the suit.”

16. Thus, it is quite clear that in the present case the defendants could succeed only if they proved their adverse possession. In order to establish a case of adverse possession the most important ingredient is that the origin of possession of the defendants was hostile since its very inception. There is no evidence that the defendants ever declared their intention to keep the property in hostility against the plaintiffs. An admission of Suraj plaintiff No; 1 merely of the fact that the defendants had been in physical possession for over 12 years does not satisfy the legal ingredient of adverse possession.

17. There can be no adverse possession without an animus to prescribe. So long as the intention to prescribe is not fulfilled, the question as to whether physical possession was with the plaintiff or the defendant is immaterial. As was observed by a Division Bench of this Court in Lalit Kishore v. Ram Prasad, 1943 All LJ 595 : (AIR 1943 All 362).

“Physical acts alone do not give rise to a right of easement unless such acts are accompanied by the requisite animus or intention.”

18. The same principle applies to proof of adverse possession. There is nothing on record in the present case to establish that the defendants had prescribed their rights by adverse possession. The defendants having failed to discharge that burden the plaintiffs were entitled to a decree.

19. There is no force in this appeal. It is accordingly dismissed with costs. The stay order dated 11-11-1970 is vacated.

20. Appeal dismissed.