R. Ibohal Singh v. Ch. Iboyaima Singh and Ors. — 1992 DIGILAW 154 (GAU)

The second appeal is directed against the judgment and decree dated 21.12.78 passed by the District Judge, Manipur in Civil Appeal No. 1 of 1977 setting aside the judgment and decree dated 23.12.76 passed by the Munsiff, Imphal (East) in OS No. 39/71/28/72/140/72 of 1973. At the time of hearing of this appeal, the learned counsel for the appellant has raised the following question of law : "Whether under the facts and circumstances of the case, the suit is barred by adverse possession?" 2. For the purpose of this appeal the facts may be stated as follows : The predecessor-in-interest of the first to sixth respondents, late Ch.Iboyaima Singh as plaintiff brought a suit against the appellant and proforma respondent No. 7 for possession of the suit land with shop building, described in the schedule of the plaint. His case was that he was granted settlement of a shop site measuring about 150' x 22” in Imphal Municipality by order dated 9.9.46 passed by the Political Agent, Mr. C. Cimson, Chairman, Imphal Town Fund. He paid premium of Rs.100/- as advance on 22.11.45 and the balance amount of Rs.650/-was paid on 2.4.47, in all he paid Rs. 750/- as premium for the shop site. 3. After getting settlement of the said shop site, the deceased plaintiff built a drum sheets roofed house on the eastern part of the said shop site for keeping building materials. Thereafter, he commenced construction of a pucca shop house and for that purpose he borrowed money at intervals from appellant's father late KK Singh, amounting to Rs. 2,500/-. He also took a loan^ofRs. 4,000/- from S. Mahawar by mortgaging the shop site under a registered deed. The arrangement was that the said loan would be adjusted from the rent of the shop that would be let out to him on completion of the house. The plaintiff late CI Singh constructed two storied building measuring 21'-6” in breadth and 31'-3' in length on the shop site. He set apart one room on the ground floor for letting out to late KK Singh towards the repayment of the loan taken from him, from the rent. The said room it on the northern side measuring 8' in breadth north to south and 31 -6" in length west to east. He set apart one room on the ground floor for letting out to late KK Singh towards the repayment of the loan taken from him, from the rent. The said room it on the northern side measuring 8' in breadth north to south and 31 -6" in length west to east. The remaining portion of the ground floor was let out to the mortgagee, S. Mahawar similarly for repayment of the mortgaged money. 4. The loan taken from late KK Singh was repaid in full by way of adjustment from the rent. However, late CI Singh allowed him to continue his possession and to carry on his business on the ground floor room because he gave loan to him in the time of his need. The loan received from S.Mahawar was also completely repaid by way of adjustment from the rent of the shop building let out to him. However, both father of the appellant late KK Singh and S. Mahawar, in collusion with each others started harassing the plaintiff by instituting various false cases in different Courts. 5. The father of the appellant KK Singh died on 21.3.66. The late KK Singh being only a licensee, according to the plaintiff, his son the appellant had no right over suit property, where late KK Singh carried on business. In spite of that the present appellant let out the northern portion of the ground floor of the shop building to the proforma respondent No. 7 without any authority. Both the defendants (appellant and respondent No.7) refused to-vacate the suit property when asked. The plaintiff late CI Singh after completion of the pucca shop house in the western part of the shop side, built a semi pucca CI sheets roofed house with a view to let out for residential purpose and on completion of the construction, the said building was let out to some person for residential purpose. 6. As the appellant and respondent No. 7 refused to vacate the suit property, in spite of repeated demands, the plaintiff filed the suit (TS No. 37 of 1971) in the Court of Sub-Judge which was, thereafter, transferred to the Court of Munsiff where it was renumbered as (TS No. 26 of 1973). In the suit plaintiff prayed for declaration for eviction of the defendants (appellant and respondent No. 7) from the suit property. 7. In the suit plaintiff prayed for declaration for eviction of the defendants (appellant and respondent No. 7) from the suit property. 7. Both the defendants (appellant and respondent No.7) contested the suit and filed joint written statement. In the written statement they stated that the said property was formerly lying within Imphal Town Fund which had the authority and jurisdiction to give settlement of land and also for settling dispute in respect of any settlement and occupation, etc. It also had the power of realisation of dues etc. They however, stated that an agreement, was entered into by and between late KK Singh, father of the appellant and the deceased plaintiff for sharing the shop site. As per the said agreement both of them would share the shop site and in pursuance of the said agreement' the deceased plaintiff took an amount of Rs. 50/- from the father of. the appellant as on earnest money in the beginning of the year, 1976. The plot was settled with the father of the appellant and the deceased plaintiff by the then political agent on 2.4.47 on payment of premium of Rs. 500/-out of which Rs. 265/- was paid by the appellant's father towards the settlement. Besides, another amount of Rs.98/-was also paid towards TF Tax. However, the settlement was in the name of the deceased plaintiff. It was further agreed that the father of the appellant would be entitled to a portion of land measuring on the northern side and the plaintiff in the southern side. Thereafter, the appellant's father constructed a building on the said plot by defraying huge expenses, occupation and construction made by the father of appellant on the shop site was accepted and approved by the local self Government Committee. Thus, the appellant and his father had been possessing the said land and the structure standing thereon, for more then 20 years, exclusively as their own property, to the knowledge of the deceased plaintiff without any interruption, whatsoever, from any quarter. Some dispute, however asose thereafter between the parties. A Title Suit No. 82 of 1951 was filed in the Court of Munsiff. Some dispute, however asose thereafter between the parties. A Title Suit No. 82 of 1951 was filed in the Court of Munsiff. But, it was allowed to be dropped on 1.8.51 as the deceased plaintiff had settled the matter with the father of the appellant and also admitted that the appellant had right, title and interest over the said disputed part of the plot of land and building. Later on, the appellant's father came to know in the year, 1956 that the plaintiff with an evil design had mortgaged the entire plot including the defendant's portion to one SK Singh at a sum of Rs. 4,000/- on 28.1.49 and also exclusively transferred same interest over it to Shri S. Mahawar. Some collusive litigations were also brought in, but had no consequential effect. That was not the end of the story. The deceased plaintiff, thereafter, trespassed a portion of the share of the land of father of the appellant in the year 19.9. The appellant's father therefore brought a suit (OS No. 13 of 1971) in the Court of Munsiff, claiming declaration of right, title and for eviction of the plaintiff in respect of the land. 8. The appellant who became the plaintiff in the said OS No. 13 of 1971 after the death of his father, filed an application for withdrawal of the above suit under Order 23 Rule 1 of the CPC,and by then the present suit was already instituted by the deceased plaintiff. In the said petition the present appellant stated, interalia, that during pendency of the suit (OS No. 13 of 1971) his father who instituted the suit as well as the defendant No. 3 late S. Mahawar, they were very material and important witnesses. Besides, the first defendant (deceased plaintiff) brought the present suit against him and there was an adverse judgment passed by the District Judge. Some more construction had been made by encroaching of some portion of the suit plot, as a result further amendment of the plaint by adding further relief was necessary. Further evidence also become necessary. If these new allegations and relief were to be incorporated, it would delay the disposal of the suit and if the plaint was not amended, the suit would become infructuous and, therefore the appellant considered it expedient to withdraw of the suit. Accordingly the suit was withdrawn. Further evidence also become necessary. If these new allegations and relief were to be incorporated, it would delay the disposal of the suit and if the plaint was not amended, the suit would become infructuous and, therefore the appellant considered it expedient to withdraw of the suit. Accordingly the suit was withdrawn. On the pleadings several issues were framed by the trial Court, witnesses were examined on behalf of the plaintiff and the defendant. 8A. In paragraph 6 of the plaint, the plaintiff stated that the father of the appellant was a licensee for life. The relevant portion of para 6 may be extracted as below : “K. Singh died on 23.1.66 and K. Singh being a mere licensee, his son cannot inherit northern room where K.Singh carried on business.” 9. Issue No. 4 and 8 relates to the plea of adverse possession. The trial Court dismissed the suit holding that the suit was barred by adverse possession and the right, title and interest of the deceased plaintiff, if any, was extinguished, inasmuch as the father of the appellant brought the suit OS (No.64 of 1956) for declaration of his right, title over the suit land and a bit more of the shop site against the deceased plaintiff and some other. The present suit was filed on 26th Nov/71. According to the trial Court, the hostile title was set up by the father of the appellant in the said suit in. the year 1956 and the present suit was filed after the expiry of the .statutory period: The principal respondent being aggrieved, filed an appeal (CA No.1 of 1977) before the Sub-Judges. The learned Sub-Judge by his judgment dated 29.11.78 allowed the appeal by setting aside the judgment and decree passed by the trial Court. The first appellate Court while allowing the appeal in his judgment, observed thus : "The father of the appellant late Khero Singh was a life long licensee in respect of suit land and building and therefore the plea of adverse possession could not be taken up. " According to the learned Sub-Judge, the father of the appellant being a licensee for life, the plea of adverse possession was not maintainable and therefore the suit was not barred. Hence the present second appeal. 10. I have heard both sides. Mr. " According to the learned Sub-Judge, the father of the appellant being a licensee for life, the plea of adverse possession was not maintainable and therefore the suit was not barred. Hence the present second appeal. 10. I have heard both sides. Mr. Priyananda, learned counsel for the appellant submits that the first appellate Court completely misconstrued the provision of law regarding adverse possession and came to an erroneous findings. According to him the suit ought to have been dismissed on the ground that the suit was barred by limitation by adverse possession. He further submits that although the settlement of the shop site was in favour of the deceased plaintiff, there was an agreement by and between him and the father of the appellant to share the property and in pursuance of the said agreement, the father of the appellant occupied the land and made construction. The appellants' father and after him the appellant possessed the land as their own property which would be proved from the various facts and circumstances such as, construction of structure made by the appellant application made to the Municipal Authority for separate latrine site and payment of tax and the filing of the suit in the Court of the Sub-Judge by the appellant's father claiming right, title over the suit property etc. The assertions of independent title .was hostile to the deceased plaintiff and these were made openly and publicly. Besides, the father of the appellant and the present appellant were and have been continuously possessing the suit property. The learned counsel also submits that at least time must begin to run from the date when the appellant's father asserted his own title by filing the suit in 1956. 11. Mr.Priyananda further submits that the withdrawal of the earlier suit and, therefore, the withdrawl of the suit cannot disentitle the appellant to take up the plea of adverse possession holding that the claim of hostile title set up by the father of the appellant and thereafter present appellant in the aforesaid suit was abandoned. 12. The submission of Mr.A.Nilamani Singh learned counsel for the principal respondents are two fold. These are; first the father of appellant being are licensee and he was allowed to occupied the suit property till his death and therefore during the lifetime there can not be a question of adverse pocession. 12. The submission of Mr.A.Nilamani Singh learned counsel for the principal respondents are two fold. These are; first the father of appellant being are licensee and he was allowed to occupied the suit property till his death and therefore during the lifetime there can not be a question of adverse pocession. Only after the death of the father of the appellant the the question of adverse pocession may come. The father of the appellent died on 23.1.66 and the suit was filled in 1971. therefore the present suit is very much within the time and the question and of adverse pocession does not arrive and therefore darmg the life time there can not be a question of nlyafter thedea'h °f the ftth'r ofthe appellant, the P°SSeSSi0n mayc°me- The father of the appellant died Jt W3S fikd ''Q I971' Therefore, the present suit is very the t,me and the question of adverse possession does not arise Secondly, even it is assumed that the father to the appellant was not a licensee as claim by principal respodent the suit can not barred by adverse pocession, inasmuch as the hostile title was setup only by filling the suit (no.64/56/87/58/91/02/13/71) and that the withdrawl of the suit, the suit became non-existance and therefore any claim made in the said suit shall obliterate. 13. On the rival contensions of the learned counsel for the parties, it is to be seen whether the suit is actually bared by adverse pocession. 14. Adverse possession means the possession by a man holding the land of is own behalf or on behalf of some other persons other than the true owner having a right to immediate possession. It implies that the true owner is out of possession. It must be complete possession exclusive of the possession of any other person. To constitute a title by adverse possession the possession required to be proved must be adequate in continuity in publicly and in extent and it is displaced by evidence of partial possession by the party against whom the title by adverse possession is claimed .Again there ought to be nothing equivocal in the possession which is relied upon as a bar. A person who gets into possession of property infiduciary character does not cease to hold it in that character simply because it becomes uncertain. who is the real person to whom he has to account. A person who gets into possession of property infiduciary character does not cease to hold it in that character simply because it becomes uncertain. who is the real person to whom he has to account. The requirement to make possession adverse very according to the peculiar facts the relationship of the parties and other like circumstances in which the adverse possession commences. Possession to be adverse must satisfy fundamental test of adequacy, in continuity, publicly and in extent so as to show that it is adverse to true owner. It is always necessary to look at position in which former owner stands towards property and also in relation to person setting up claim by adverse possession. 15. However, requirement of law to make the possession adverse may, therefore, depends on the fact; relationship and other like circumstances are also to be looked into. In order to perfect a title by adverse possession two important conditions are to be satisfied: (1) possession and (2) intention to exclude the owner from possession. A possession to be adverse must satisfy fundamental facts of adequacy in continuity and publicly and in existence so as to show that the possession is adverse. Therefore, this is always necessary to look at a position in which the former owner stands towards the property and also in relation to person set up the claim by adverse possession. Another important aspect regarding the running of time by adverse possession against true owners it is to be seen whether the owner has right to take over possession immediately. In case of some relationship between true owners and the person claiming adverse possession is such that the true owner is not entitled to immediate possession, time cannot run by adverse possession as envisages under Article 65 of the Limitation Act. For instance, a mortgagee in possession of mortgaged property, the mortgagor has no right to immediate possession. During the said period if a hostile title set up eitfier by the, mortgagee or by third person, the mortgagor having no right to immediate possession, the time cannot to run. Similar is the case of a relationship of landlord and tenant or license and licensee. During the continuance of the tenancy a tenant cannot set up a plea of adverse possession. 16. Similar is the case of a relationship of landlord and tenant or license and licensee. During the continuance of the tenancy a tenant cannot set up a plea of adverse possession. 16. In Md.Mumtaz Ali vs.Mohan Singh,AIR 1923 PC 118, observed thus : "The Board are unable to hold that the simple assertion of a proprietary right in a judicial proceeding connected with the land in dispute which ex-hypothesi was unfounded at the date when it was made, can be the mere lapse of six or twelve years, convert what was an occupancy or tenant title into that of an under-proprietor." In Atyam Veerraju & others vs. Pechwari Venkaona & others reported in AIR 1966 SC 624, the Supreme Court held: "It is also well settled that during the continuance of the tenancy, the tenant cannot acquire by prescription in permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord." 17. From the discussions made above, a tenant during the continuance of the tenancy cannot setup hostile title. However, after determination of the tenancy if a tenant continues in possession he may set up a plea of adverse possession. In short, it can be said that the person having no immediate right of possession over the land time cannot run against them on the ground of adverse possession. During the subsistence of tenancy, the landlord has no right for immediate possession. A possession of a tenancy can not became adverse even if he sets up a hostile title. This principle is also applicable in case of license and licensee, 18. On the basis of the above propositions of law, now it is to be seen whether the suit can be dismissed on account of adverse possession. The deceased plaintiff's averments is that the rather of the appellant was a licensee for his life. In the suit, witnesses were examined on behalf of the deceased plaintiff and on behalf of the appellant, but to my utter surprise, neither the trial Court nor the first appellate Court discussed any evidence of the witnesses regarding the claim of the deceased plaintiff and the father of the appellant. The District Judge abruptly came to the conclusion that the father of the appellant was a licensee for life without discussing any evidence of the witnesses. The District Judge abruptly came to the conclusion that the father of the appellant was a licensee for life without discussing any evidence of the witnesses. The first appellate Court held as follows : "The nature of possession of the suit plot and building will have to be determined by the interpretation of the document Ext. B/2. Ext. B/2 shows that the plaintiff was the owner of the whole plot of which the suit plot forms part and that Khero Singh was allowed to occupy the suit plot and shop building as long as he like, by the Town Fund Committee with the knowledge and acquiscence of the plaintiff. The resolution was passed on 26.4.49. It is thus seen that Khero Singh was a life long licensee in respect of the suit plot and shop building. This status is further confirmed by Ext. B/l filed by the defendants.On perusal of Ext. B/l it appears to me that during his life time Khero Singh applied to the Imphal Town Fund Board for the construction of a godown and a latrine in the plot No. 844, and for the payment of separate tax in respect of the suit plot and that the town fund rejected his prayer directing him to seek his relief in proper Court. After this order Khero continued to occupy the suit plot and shop building as a licensee under the plaintiff without any overt act to alter the character of his possession till his death." From this, it appears that the first appellate Court only relied on the Ext. B/l and B/2. Under what condition these exhibits (Ext. B/l and B/2) came into existence, it cannot be said from the judgment of the first appellate Court. It is a serious question which requires to be scrutinized .The appellant's specific claim is that there was an agreement between the deceased plaintiff and the father of the appellant and on the basis of that he occupied the land and constructed house. The learned Sub-Judge without discussing any evidence on record, only on the basis of the said documents, rushed to the conclusion that he was a licensee. 19. The first appellate Court being the last Court of facts, it is its duty to discuss the entire evidence on record. Without discussing the facts, the first areliate court cannot came to any conclusion. 19. The first appellate Court being the last Court of facts, it is its duty to discuss the entire evidence on record. Without discussing the facts, the first areliate court cannot came to any conclusion. Rule 31 of Order 41 of the CPC prescribes the procedure for writing an appellate judgment. The judgement of the first appellate Court must mention the point for determination and give decision thereon and also the reasons. It is incumbent on the final Court of facts (first appellate Court) to discuss all evidences on record and give its finding. While reversing the decision it must give reasons and indicate the source of reasons. Even on concurring a judgment, oral evidence should be summarised and give reason for accepting or rejecting the appeal. A judgment which does not discuss the reason and also the oral evidence on record is vitiated by the error of procedure. There must be substantial compliance of the provisions of Rule 31 of the Order 41 of the CPC. 20. In the impugned judgment of the case, I do not find any discussion of the evidence of the witnesses examined in that Court. Without such discussion it is difficult for this Court to come to any conclusion. In second appeal this Court cannot embark upon the task of scrutinisation of the evidence on record to come to a finding whether the appellant's father was a licensee as claimed by the plaintiff and principal respondent or there was an agreement between the deceased plaintiff and the father of the appellant as claimed by the appellant. Under the facts and circumstances of the case, I find that the impugned judgment of the first appellate Court is not sustainable in law. The case requires further scrutiny and examination of the witnesses and also the evidence on record. 21. In view of the rival contention of the parties regarding nature and character of possession of the suit property by the father 6f the appellant and thereafter by appellant is required to be determined after shifting the evidence. I, therefore, set aside the impugned order and remand the case to the District Judge for proper disposal of the appeal after considering all the evidences on record and on hearing the parties. I, therefore, set aside the impugned order and remand the case to the District Judge for proper disposal of the appeal after considering all the evidences on record and on hearing the parties. As this is a very old pending case, the learned District Judge shall try to dispose of the appeal as early as possible and at any rate within two months from the date of receipt of the case. Send down the case record immediately.