P.H. Dayanand vs S.Venugopal Naidu & Ors

P.H. Dayanand ... Appellant

Versus

S. Venugopal Naidu & Ors. ... Respondent

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. The short question that arises for consideration in this appeal is as to

whether the Courts below were correct in decreeing the suit only on the

premise that defendant No.2-appellant could not prove his title. 2

3. The basic fact of the matter is not in dispute. The plaintiff-respondent

No.1 purchased the suit property in the year 1991 from one T. Bayarappa.

Apparently plaintiff-respondent No.2 was in permissive possession thereof.

As despite request he refused to vacate the licensed premises, the suit was

filed.

4. On the other hand, the defence of the appellant before us was that he

had been in lawful possession of the property in his own right.

Appellant, inter alia, contended that the original owner of the

property, viz., Shri T. Bayrappa had entered into an agreement of sale with

one Shri Krishnamurthy. A Power of Attorney was also executed in his

favour. The said Krishnamurthy has assigned his rights under an agreement

in favour of denfendant No.1, (late Shri G. Srinivas) and delivered

possession of the property to him. Shri Srinivas raised constructions

thereupon. Shri Krishnamurthy allegedly as an agent of T. Bayrappa

assigned his rights in favour of G. Srinivas on 10.5.1997.

He filed a suit for specific performance of contract. It was

furthermore claimed that Shri Srinivasan entered into an agreement with the

petitioner to convey the property for a total consideration of Rs.9,60,000/-. 3

A joint written statement was filed in the said suit by the contesting

defendants. Admittedly, however, the said suit for specific performance of

contract was withdrawn. An additional written statement was filed by the

petitioner claiming his title under the aforementioned agreement entered

into by and between him and the defendant No.1

5. The learned Trial Court framed a large number of issues.

Parties adduced their respective evidences on the said issues.

The suit was decreed and the first appeal filed thereagainst was also

dismissed by the High Court by reason of the impugned judgment.

6. Mr. Nageshwar Rao, learned senior counsel appearing on behalf of

the appellant, in support of the appeal at the outset, drew our attention to the

fact that although plaintiff purported to have purchased the suit property in

the year 1994 but from the records it would appear that he allegedly entered

into an agreement for sale with Shri T. Bayrappa in the year 1991. The

Power of Attorney was also executed in his favour authorizing him to

encumber and alienate the said property.

It was pointed out that from the record it would furthermore appear

that the plaintiff-first respondent filed a writ petition before the High Court

of Karnataka alleging that Bangalore Development Authority had been 4

making attempts to dispossess him and demolish the structures on the land

when his application for regularization of construction was pending before

the said Authority. Learned counsel would contend that from the said

records, thus, it would appear that the land in question had been acquired by

the Bangalore Development Authority and, thus, the plaintiff having lost his

title, the question of defendant No.2's being in permissive possession

thereof would not arise and thus, the suit filed by the plaintiff claiming title

over the property could not have been decreed.

7. Mr. P.V. Shetty, learned counsel appearing on behalf of the

respondent, on the other hand, would support the judgment.

8. Both the courts below have concurrently found the contentions of the

plaintiff-respondent that he had purchased the property from the rightful

owner T. Bayrappa. Even according to the appellant, the purported

transaction between Shri T. Bayrappa and Shri Krishnamurthy and

defendant No.1 did not result in execution of a registered deed of sale in his

favour. Admittedly, the defendant No.1 himself filed a suit for specific

performance of the contract against his vendor. It has concurrently been

found by both the courts that the defendant No.2 cannot be said to have

acquired any title over the property, particularly when the defendant No.1

himself withdrew the suit for specific performance of contract. It was 5

furthermore noticed that even the purported agreement for sale was not

produced before the trial court by the defendant No.1.

10. When questioned, Mr. Nageshwar Rao conceded that there is nothing

on record to show that the Bangalore Development Authority at any point of

time has acquired the property in suit in terms of the provisions of the Land

Acquisition Act, 1894 or otherwise. Admittedly, the plaintiff's vendor was

in possession of the suit property. It is only through him, the defendant

No.1 and defendant No.2 claimed possession. As the original owner has

transferred his title in favour of the plaintiff-respondent, the court was

required to go into the question of inter se claim between the parties on or

over the land in dispute. Even if plaintiff and his vendor has been in prior

possession, the defendant No.2 who came in permissive possession of the

property through him cannot be said to have acquired a better title than the

plaintiff.

This aspect of the matter has been considered in Somnath Burman v.

Dr. S.P. Raju & Anr. [(1969) 3 SCC 129] wherein this Court held :

"It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within twelve years. According to the appellant, except in a suit under Section 9 of the 6 Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property and its possession within twelve years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner."

11. Mr. Nageshwar Rao, however, drew our attention to a decision of this

Court in Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale

(Dead) & Ors. [(2007) 6 SCC 737], wherein it was held :

"13. The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions."

12. The said decision, thus, itself is an authority for the proposition that

the court is entitled to take into consideration the defence of the defendants.

The sole question which arose for consideration before the Court therein

was as to which of the parties had a better title.

7

13. For the reasons aforementioned, there is no merit in this appeal. It is

dismissed accordingly.

As a finding of fact has been arrived at by the courts below that the

appellant had been prolonging the hearing of the suit, he must pay and bear

the costs of the first respondent. Counsel's fee assessed at Rs.75,000/-.

.....................................J. [S.B. Sinha]

.....................................J. [Cyriac Joseph]

New Delhi;

November 7, 2008