Gulab Chand Chaurasiya v. Ram Sewak — 1989 DIGILAW 497 (ALL)

JUDGMENT A.N. Varma 1. This is a defendants' second appeal arising out of a suit for recovery of possession and damages and in the alternative the refund of the sale consideration along with interest thereon. The trial court had dismissed the suit. On appeal that decree was set aside and the suit of the plaintiff respondents for recovery of possession of the disputed shop as well as for the damages for use and occupation was decreed. Hence this second appeal. 2. The relevant facts which are not in dispute are that one Ram Narain Lal, the husband of the respondent no. 4 and father of the remaining defendant respondents was the owner of the disputed shop and Swamidin was the tenant thereof. On 1-5-1953 Ram Narain Lal had filed a suit no. 231 of 1953 for eviction of Swamidin. Meanwhile Ram Narain Lal filed another Suit no. 613 of 1955 on 23-8-1955 for the same relief, namely, ejectment and damages against Swamidin but the suit was stayed under section 10 CPC. During the pendency of these suits, Ram Narain executed a sale deed in favour of Ram Sewak and Ram Awatar, the present plaintiff respondents on 29-3-1966. Suit No. 231 of 1953 which was pending as a second appeal here was later withdrawn on account of defect in the notice under section 106 T. P. Act. Eventually on 28-2-1968 suit no. 613 of 1955 was decreed and the appeal filed by Swamidin against that decree was dismissed on 24/25-4-1969. The second appeal filed by Swamidin was dismissed in default by the High Court on 7-9-1979. Meanwhile Ram Narain Lal had died on 9-5- 1973 and his heirs the present defendant respondents were duly substituted in the second appeal. The second appeal which was dismissed in default was subsequently restored but was again dismissed on merits on 15-7-1980. In the meantime the heirs of Ram Narain executed a sale deed dated 28-1- 1980 in favour of Gulab Chand the present defendant appellant and thereafter in execution of the decree passed in suit no. 613 of 1955 Swamidin was evicted and possession was taken by Gulab Chand on behalf of the heirs of Ram Narain. This gave rise to the present suit no. 29 of 1980 filed by the plaintiff respondent against the heirs of Ram Narain and Gulab Chand, the relief claimed being one of possession. 613 of 1955 Swamidin was evicted and possession was taken by Gulab Chand on behalf of the heirs of Ram Narain. This gave rise to the present suit no. 29 of 1980 filed by the plaintiff respondent against the heirs of Ram Narain and Gulab Chand, the relief claimed being one of possession. The suit was dismissed by the learned Civil Judge but on appeal, it was decreed. Thereafter the present second appeal. On these facts learned counsel for the appellant submitted that the suit filed by the plaintiff respondents was clearly barred by time and the lower appellate court has committed a substantial error of law in setting aside the decree passed by the trial court. Very briefly the contention of the learned counsel for the appellant was that with the execution of the sale deed by Ram Narain in favour of the plaintiff respondents, the possession of Swamidin who was in occupation as a tenant of the vendor became adverse to the vendee. That being so, the present suit which was admittedly filed more than 12 years after the transfer of the property in favour of the plaintiff respondents became barred by time. 3. Having given the matter a careful consideration, I find no merit in the above contention. It is apparent that before the suit can be dismissed on this ground, it must be found that the possession of the vendor and of his tenant Swamidin should have been open, hostile and adverse to the vendees. In the present case, however, a close scrutiny of the undisputed facts would demonstrate beyond doubt that the cause of action for the present suit arose only after 30-7-1980, the date on which Swamidin was evicted in execution of the decree passed in suit no. 613 of 1955 and the heirs of Ram Narain instead of handing over possession to the plaintiffs as contemplated under the sale deed allowed Gulab Chand to occupy the shop. 4. The position is like this. On the date of execution of the sale deed dated 29-3-1966 the shop was in occupation of Swamidin and two suits for his eviction, viz., suit no. 231 of 1953 and 613 of 1955 filed by the vendor were both pending. 4. The position is like this. On the date of execution of the sale deed dated 29-3-1966 the shop was in occupation of Swamidin and two suits for his eviction, viz., suit no. 231 of 1953 and 613 of 1955 filed by the vendor were both pending. Reference to the fact that a suit for the eviction of the tenant was already pending was made in the sale deed obviously because the vendor was conscious of his statutory obligation under clause (f) of section 55 (1) of the Transfer of Property Act. In affirmation of this position the vendor had stated in the sale deed that the disputed shop was in possession of the tenant and that a civil suit no. 231 of 1953 had already been instituted for his eviction. It was further stated that the suit had been decreed by the trial court but the tenant's second appeal was pending in the High Court. Significantly the sale deed did not state or stipulate as one might have expected that the further progress of the suit was from the date of sale the sole concern of the vendees. Not only this, the sale deed further stated that if after the decision of the second appeal by the High Court the vendees are not able to get possession, the vendor would return the entire sale consideration together with the interest at the rate of one percent per mensum, which amount the vendees could realise from the personal properties of the vendor. Implicit in the sale deed read as a whole is an implied assurance by the vendor that he would put the vendees in possession of the shop after Swamidin had been ejected therefrom and that towards that end the vendor had already taken necessary action. That being so, the vendees could legitimately sit back and await the out come of the action already initiated by the vendor for the eviction of the tenant. 5. In this view of the matter, it is impossible to hold that the vendor's possession became automatically adverse to the vendees by the mere execution of the sale deed. It must be remembered that in the final analysis the question, whether the possession of the vendor or his tenant became adverse as against the vendees would depend on the facts and circumstances of each case. It must be remembered that in the final analysis the question, whether the possession of the vendor or his tenant became adverse as against the vendees would depend on the facts and circumstances of each case. Thus a sale deed may contain a stipulation that the vendor would continue in possession of the property transferred thereunder whether as a licensee of the vendees or as a lessee for a stipulated period as is often not uncommon. We are also aware of transactions of sale carrying a stipulation that the vendee would transfer the property in favour of the vendors within an agreed period. All these are instances which go to show that there is absolutely no warrant for the proposition that as soon as the vendor transfers the property, his possession ipso facto and without more becomes adverse to the vendees. As mentioned above, it would depend on the nature and terms of the contract of sale and contemporaneous agreement reached between the parties at the time of an out and out sale which will be decisive of the issue whether the possession of the vendor after the execution of the sale deed is adverse. 6. Judged from these perspectives, it is not possible to hold that the possession of Swamidin, the tenant of Ram Narain, became adverse to the plaintiff respondents right from the date of the execution of the sale deed in their favour. As mentioned above, time began to run against the plaintiffs only after the eviction of Swamidin and the failure of the heirs of Ram Narain to put the plaintiff in possession. Sri V. K. S. Chaudhary, learned counsel for the defendant appellant, however, submitted that even if one were to go by the recitals in the sale deed, in view of the fact that the sale deed referred only to suit no. 231 of 1953 and not to suit no. 613 of 1955 the plaintiff respondents were bound to file the suit at least as soon as the second appeal arising from suit no. 231 of 1953 was dismissed by this court on 4-8-1966. Even if therefore, limitation were to be computed from that point, he submitted, the suit would be barred by limitation. 7. I cannot agree. It must be remembered that we are called upon to construe a sale deed and not a statute. 231 of 1953 was dismissed by this court on 4-8-1966. Even if therefore, limitation were to be computed from that point, he submitted, the suit would be barred by limitation. 7. I cannot agree. It must be remembered that we are called upon to construe a sale deed and not a statute. Hypertechnical approach would hence be completely out of place in interpreting the sale deed in question. In my opinion, commonsense approach should be adopted in interpreting such documents and efforts should be made to get at the real intention of the parties. So construed, I have no manner of doubt that the basic thing which the vender wanted to convey through the sale deed was that the shop was in occupation of his tenant and that he had already taken steps by way of a civil suit to have the shop vacated so that possession may be delivered to the vendee. Nothing therefore, turned on any particular suit number. Admittedly both the suits were pending at that time. The omission, therefore, to mention suit no. 613 of 1955 in the sale deed would not be decisive of the controversy. The cause of action for the present suit to my mind arose only after the heirs of the vendor instead of putting the vendee in possession allowed Gulab Chand to occupy the shop by permitting him to take delivery of possession on their behalf on 30-7-1980. From that point of time, the present suit was clearly within time. 8. Sri V. K. S Chaudhary learned counsel for the appellant also laid considerable emphasis on the failure of the vendee to get themselves impleaded in the civil suits filed against Swamidin. He urged that as the tenant bad neither attorned to the vendees nor did the vendees take steps to assert their title over the disputed shop, vis a vis, Swamidin, the latter's possession must be deemed to have been adverse right from the date of the execution of the sale deed in favour of the plaintiff respondents. I am unable to agree. In my opinion, neither the failure of the vendees to get themselves impleaded in the suit nor the supposed omission of Swamidin to attorn to the vendee would result in converting the occupation of Swamidin into adverse possession as against the vendees. I am unable to agree. In my opinion, neither the failure of the vendees to get themselves impleaded in the suit nor the supposed omission of Swamidin to attorn to the vendee would result in converting the occupation of Swamidin into adverse possession as against the vendees. The vendees had no reason to suspect that inspite of the assurance given by the vendor that he was taking steps to have the tenant evicted from the disputed shop with the obvious intention of putting the vendees in possession in fulfilment of the obligation enjoined upon them by clause (f) of section 55 (1) of the Transfer of Property Act, the heirs would go back on that promise. Further, there is no period of limitation for substitution of the transferees in the case of transfers lis pendens. The failure of the plaintiffs to get themselves impleaded in the suit hence did not materially affect the legal position set out hereinabove. The question of attornment is also of no relevance here as the controversy is not whether the plaintiff respondents are the tenants of Swamidin. Swamidin has already been evicted. The present suit is based on title for possession against those who have no right to hold the property in question. In any case, the mere failure of Swamidin to attorn to the plaintiff respondents did not automatically convert the occupation of Swamidin into adverse possession as against the plaintiffs right from the date of sale. There is nothing to indicate that Swamidin had renounced his character as a tenant of the vendor. The vendor had, as already noticed, assured the vendees that he was taking steps to put them in possession over the disputed shop after the eviction of the tenant. I, therefore, find no merit in the above contention either. 9. I may now briefly comment on two decisions, viz., AIR 1936 Madras 589 and 1963 Bihar Law Journal 303 on which Sri V. K. S. Chaudhary placed strong reliance in support of his contention that the possession of the vendor after the transfer of the property becomes adverse immediately upon the execution of the sale deed. 10. I have carefully examined both these decisions and find that neither of the same is of any assistance. Both are distinguishable on the facts. 10. I have carefully examined both these decisions and find that neither of the same is of any assistance. Both are distinguishable on the facts. In neither of these two was the court called upon to answer the issue in the light of the facts of the case in hand. In Bihar case after the transfer of the property the vendor had sold it to some other person and put him in possession within the knowledge of his previous vendee. The issue directly raised and decided in that case was whether the vendor's title passed upon the execution of the sale deed or on the registration thereof. The Madras case is also distinguishable on facts in that their Lordships were not called upon to examine the legal affect of the vendor having impliedly promised to put the vendee in possession of the property sold to him after the eviction of the sitting tenant against whom the vendor had already taken action for his eviction. Further neither of these two decisions considered the effect of clause (f) of section 55 of the Transfer of Property Act. Lastly, these decisions did not consider of situation where the vendor and vendees may have simultaneously with the execution of the sale deed agreed to allow the vendor to remain in possession either himself or through his agent for a certain length of time. For all these reasons, I am clearly of the opinion that the correct approach in such cases should be to examine the facts of each case to see whether the possession of the vendor over the property transferred by him becomes adverse to the vendee upon the execution of the sale deed or later. 11. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.