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1999(9) Supreme 297
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
M. Jagannadha Rao and M.B. Shah, JJ.
Shri Ajit Chopra -Appellant
versus
Shri Sadhu Ram & Ors. -Respondents
Civil Appeal No. 755 of 1997
Decided on 2-11-1999
Counsel for the Parties :
For the Appellant : Seeraj Bagga, Ms. Shureshtha Bagga, Advocates.
For the Respondents : Atul Sharma, V. Balaji, E.C. Agrawala, Advocates.
(ii) Code of Civil Procedure, 1908-Section 47 (as it stood prior to 1976 Amendment)-Eviction suit under Rent Control Act-Eviction ordered-Decree not executed and time barred-Subsequent eviction suit under Rent Control Act for arrears of rent and eviction-Defence of adverse possession-Suit for possession thereafter on basis of title-High Court holding suit for possession was virtually enforcement of order of eviction in first eviction suit and as such barred by Section 47-Not correct-Suit for possession was not one for execution of eviction order-Ban under Section 47 not applicable-Suit in question is not based on decreed obtained in first eviction case filed under Rent Control Act-Second suit on title maintainable unless title itself stood barred-On facts adverse possession not established-Plaintiff appellant entitled to decree for possession.
If a suit for possession is decreed and the decree-holder gets possession and thereafter there is a fresh dispossession, there is no difficulty in holding that a fresh suit is maintainable for ejectment, because the fresh trespass creates a fresh cause of action. But that is not the only situation in which it can be said there will be a fresh cause of action. There can be other situations where a fresh cause of action arises. The second suit on title (where the earlier decree on lease stood barred) would be maintainable "unless the title itself stood barred". (Paras 25 & 33)
In the instant case the plaint is not based on the decree obtained in the first eviction case filed under the Rent Control law. The second suit on title was filed on 5.8.70 within 12 years of the commencement of the adverse possession on 19.12.58 i.e. before 19.12.70.
Held : Judgment and decree, which was passed in a previous suit under the Rent Control Act by which it was held that respondent was tenant and that he was required to vacate the premises on or before 19.12.1958, would not bar a fresh suit for recovery of possession from a tenant. Reason being that the tenant has not acquired title over the property by adverse possession. It is true that the appellant could have executed the decree passed in the said suit. He had not executed the same on the alleged ground that there was a fresh agreement of tenancy. Whatever may be the position, after lapse of three years it was not open to the appellant to file an application for executing the said decree under the Limitation Act, 1908. Still there is no bar under the Rent Act or under the Limitation Act, 1908. Still there is no bar under the Rent Act or under the Code of Civil Procedure for filing a suit for recovery of possession from the tenant, who had failed to deliver the possession on the basis of a decree passed against him. Unless, the defendant - tenant establishes that he has become owner of the suit property by adverse possession, the suit filed by the owner on the basis of his title cannot be dismissed despite the fact that application for the execution of the decree passed under the Rent Act was barred after lapse of three years. The title of the plaintiff over the suit property was not extinguished (i) by the act of the parties including adverse possession, (ii) by the decree of the Court or (iii) by not executing the decree which was passed in a previous suit. If there is any agreement between the parties after passing of the decree, permitting the tenant to continue in the premises, he may either be a tenant, licensee or a trespasser. Presuming that no fresh tenancy was created or license was granted then also respondent has failed to acquire title by adverse possession on the date of the suit i.e. 5.8.1970, because as per the decree he was entitled to occupy the premises up to 19.12.1958 as a tenant. By lapse of time, plaintiff has lost right to execute the previous decree as it became time - barred but has not lost the title. Unless the title is extinguished, second suit by the owner if filed within period of limitation is not barred. The present suit is not barred by Section 11 or Section 47 of the Code of Civil Procedure. (Paras 32 and 35)
JUDGMENT
M. Jagannadha Rao, J.-The appellant is the legal representative of the original plaintiff Sri R.C. Chopra in the suit bearing Suit No. 25/1 of 1970 on the file of the Senior Sub-Judge, Simla District, Simla, in the State of Himachal Pradesh. The present suit was filed by the said Sri R.C. Chopra for possession and Rs. 610/- as past mesne profits. The trial Court decreed the suit on 30.11.1976 for possession but refused to pass a decree for mesne profits. The defendant appealed before the District Court, Simla which dismissed the appeal by judgment dated 23.7.1977. On further appeal by the defendant in R.S.A. No. 70 of 1977, learned Single Judge of the High Court of Himachal Pradesh, by judgment, dated 29.10.1991 allowed the appeal, set aside the judgments of the lower Courts and dismissed the suit on a new question, namely, that the present suit was not maintainable in view of Section 47 of the Code of Civil Procedure, as it stood before the 1976 Amendment. The plaintiff died on 22.10.1985, during the pendency of the Second appeal. This appeal by Special Leave has been preferred by the plaintiff s legal representatives.
2. The property in question belonged originally to one Dewan Chand Bhatia of Simla and the present plaintiff Sri. R.C. Chopra purchased the same on 18.6.1957 by way of a registered sale deed. It appears that the plaintiff s vendor Sri Bhatia granted a lease in favour of the respondent - defendant on 10.2.1952. Later, Sri Bhatia filed an eviction petition on 19.7.1955 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on various grounds. The respondent denied the relationship of landlord and tenant. The said contention of the tenant was accepted and the eviction case was dismissed by the Rent Controller, Simla on 25.9.1956. The landlord Bhatia s appeal before the Appellate Authority succeeded and appeal was allowed on 30.9.1957 holding respondent was a tenant and that grounds existed for his eviction. (It was during the pendency of that first appeal that the present plaintiff purchased the property from Sri Bhatia on 18.6.1957, subject to the decision of the appeal). The respondent - tenant filed a revision in the High Court on 2.1.1958 contending that he was not a tenant and seeking stay of dispossession which was granted on 15.1.1958. Ultimately, the revision was dismissed by the High Court on 19.9.1958 holding that the respondent was a tenant. Three months time was granted for vacation of the premises. The eviction order was not executed for quite some time but the present suit was filed by the appellant (purchaser from Mr. Bhatia) within 12 years from 2.1.1958, the dismissal of the tenant s revision.
3. It is the case of Sri R.C. Chopra, the present plaintiff that as a purchaser from Sri Bhatia, by sale deed dated 18.6.1957 he tried to evict the respondent but that the respondent entreated that he be not evicted. The present plaintiff was in Government service and was at Bombay and was being transferred from place to place. Therefore, it is said, the plaintiff agreed afresh to allow the respondent to continue as his tenant. But, it is said, the respondent was not paying rent and this led to the appellant giving a notice on 24.7.1969 to the respondent for eviction and demanding arrears of rent. There was no reply from the respondent.
4. At that stage i.e. after 24.7.1969, admittedly, Sri R.C. Chopra the present plaintiff filed a fresh eviction petition against the respondent, under the East Punjab Rent Restriction Act, 1949. In that eviction case, the respondent filed a counter contending that he was not a tenant, and that he was not liable to pay any arrears of rent and that he had acquired title by adverse possession.
5. The present suit for possession based on title was therefore filed on 5.8.1970 and also seeking Rs. 610/- as compensation for use the occupation. The respondent filed written statement claiming adverse possession on the lines of his counter in the second eviction pet
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