#480

Описание: IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
VIKRAM NATH; J., RAJESH BINDAL; J.
Civil Appeal No. 7502 of 2012; JANUARY 03, 2024
BRIJ NARAYAN SHUKLA (D) THR. LRS. versus SUDESH KUMAR ALIAS SURESH KUMAR (D) THR. LRS. & ORS.
Adverse Possession - Tenants cannot claim adverse possession against their
landlords since their possession is permissive in nature. (Para 9.4)

5. The Trial Court had placed reliance upon the sale deed, the Mutation and the
Khasra and Khewat entries. Further, the Trial Court had held that the proceedings under
section 145 CrPC would not be of any benefit to the defendant respondents as it was not
clear from the material placed that the said proceedings related to the land in question.
6. The defendant respondent preferred appeal before the District Judge which was
registered as Civil Appeal No.14 of 1979. The District Judge, Hardoi, vide judgment dated
29.11.1979 dismissed the appeal. It however did not agree with a couple of findings
recorded by the Trial Court and accordingly, recorded its own findings. According to the
appellate court, the proceedings under section 145 CrPC were related to the land in
dispute and that the possession of the defendant respondent was found over the land in
dispute. It accordingly decreed the suit for possession and not for injunction as had been
done by the Trial Court. The Appellate Court further held that the plaintiff-appellants were
the owners of the land in dispute and they had been successful in establishing their title.
7. Another finding recorded by the Appellate Court was that the land in dispute was a
non-agricultural land and there was no question of abolition of Zamindari with respect to
the said land and therefore the claim of the defendants of becoming the owners on the
abolition of Zamindari was not correct. It further found that the suit for arrears of rent filed
in 1944 was with respect to some other land and not the land in dispute in as much as the
suit land was vacant open piece of land whereas the 1944 suit for arrears of rent was with
respect to the house of the defendants. Even the plot areas in the two suits were different.
The Plot No.1019 being a huge piece of land where as the plaintiff appellant had
purchased only a part of it, they had derived valid title from the Zamindars, the erstwhile
owners.
8. It accordingly held that the period of 12 years for perfecting rights on the basis of
adverse possession would commence from 1966 and the suit having been filed in 1975
was well within time.
9. The defendant respondent preferred Second Appeal before the High Court which
was registered as Second Appeal No.202 of 1980. It is this appeal which has been allowed
by the impugned judgment giving rise to the present appeal. The High Court dismissed
the suit of the appellant on the ground of limitation as according to it, the defendant
respondent had matured their rights or rather perfected their rights by adverse possession
having continued so since 1944 when the first suit for arrears of rent was filed. We are,
however, of the firm view that the High Court fell in serious error in holding so, for the
following reasons:
9.1 It has not dealt with the findings recorded by the Trial Court and the First Appeal
Court with respect to the issue of Limitation and the evidence considered by them.
9.2 The High Court was hearing the Second Appeal under section 100 of Code of Civil
Procedure, 19082
and it having reappreciated the findings to disturb findings of fact,
committed an error.
9.3 The High Court has not recorded any finding that the plaintiff appellants were not
the owners or that they have failed to prove the ownership.
9.4 The suit of the year 1944 was for the arrears of rent and not relating to any dispute
of possession. The defendant respondents were tenants and therefore their possession
was permissive as against the then landlords. There was no question of them claiming
any adverse possession from 1944.