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2009(6) Supreme 493
SUPREME COURT OF INDIA
S.B. Sinha and Deepak Verma, JJ.
Biswanath Agarwalla — Appellant
versus
Sabitri Bera & Ors. — Respondents
Civil Appeal No. _________of 2009
Arising out of Special Leave Petition (Civil) No. 10194 of 2007
Decided on : 04-08-2009
Facts of the Case :
Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.
Findings of the Court :
In terms of West Bengal Premises Tenancy Act, 1956 the tenant upon termination of tenancy does not become a trespasser- He becomes a statutory tenant .When, however, a defendant is a trespasser and is sued as such, the situation would be totally different-.Plaintiff must file a suit having regard to the cause of action thereof. The Court, in a given case, mould the relief having regard to the provisions of Order VII Rule 7 of the Code of Civil Procedure, but the said provision cannot be applied in a situation of this Nature. Hence held that it was not a case where by non framing of an issue as to whether the defendant - appellant was a trespasser or not he was not prejudiced. Had such an issue been framed he could have brought on record evidence to establish that he had the requisite animus possidendi, particularly in view of the fact that it has been held by the courts below that he was not put in possession by the predecessor-in-interest of the plaintiffs in terms of an agreement for sale or otherwise. If he has not been able to prove the agreement, he could have taken the other plea, i.e., he has acquired indefeasible title by adverse possession. He is said to have been in possession of the suit premises for more than twelve years prior to the institution of the suit. The question as to whether he acquired title by adverse possession was a plausible plea. He, in fact, raised the same before the appellate court. Submission before the First Appellate Court by the defendant that he had acquired title by adverse possession was merely argumentative in nature as neither there was a pleading nor there was an issue. The trial court had no occasion to go into the said question. Hence in a case of this nature an issue was required to be framed. Furthermore, the High Court while determining the issues involved in the Second Appeal should have formulated questions of law-However keeping in view the peculiar facts and circumstances of this case interests of justice should be subserved if following directions were issued with a view to do complete justice to parties. The plaintiffs may file an application for grant of leave to amend his plaint so as to enable him to pray for a decree for eviction of the defendant on the ground that he is a trespasser.
Result : Appeals allowed
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.
It arises out of a judgment and order dated 17th August, 2006 passed by a learned single judge of the Calcutta High Court in C.O.A. No. 253 of 2006 in RVW No. 2671 of 1996.
3. The suit premises is a shop situate in a small town commonly known as Raghunathpur in the district of Purulia. Appellant herein is said to have entered into possession of the suit premises in the year 1970. Originally, he claimed to have come into possession in the said premises pursuant to or in furtherance of an agreement for sale entered into on or about 18th March, 1970 by and between him and S.K. Abdul Wahid Molla, the father of Safiqur Rahaman.
The respondents purchased the suit premises from Safiqur Rahaman on 21st July, 1980 by three registered deeds of sale.
4. Indisputably, the respondent No.1 filed a suit being Title Suit No.88 of 1990 in the Court of Munsif, Raghunathpur, District Purulia (West Bengal) inter alia praying for eviction of the appellant from the suit premises and mesne profit claiming themselves to be the owners and landlords thereof.
He prior to institution of the suit also served a notice upon the appellant in terms of Section 106 of the Transfer of Property Act asking him to handover peaceful and vacant possession alleging that he had been a tenant therein on a monthly rental of Rs.45/- under his vendor Safiqur Rahaman.
5. Appellant denied and disputed that he had ever been a tenant of Safiqur Rahaman at any point of time. The relationship between them was, thus, denied and disputed.
6. The learned trial judge having regard to the rival pleadings of the parties framed the following issues:
“1) Have the plaintiffs any cause of action to bring this suit?
2) Is the suit maintainable in its present form?
3) Is the suit barred by law of limitation?
4) Is the suit barred by provisions of the S.R. Act?
5) Is the suit barred by the principle of waiver, estoppel and acquiescence?
6) Have the plaintiffs landlord and tenant relationship with the defendant?
7) Have the plaintiffs served valid notice u/s 106 of the T.P. Act?
8) Have the plaintiffs right, title and interest in the suit property?
9) Are the plaintiffs entitled to get the decree as prayed for?
10) To what other reliefs, if any are the plaintiffs entitled?
The learned trial judge opined:
i. The plaintiffs have proved to be the owner of the suit property having purchased the same from the admitted owner S.K. Abdul Wahid Molla;
ii. The defendant has failed to prove his independent title over the suit property.
iii. The plaintiffs have failed to prove the relationship of landlord and tenant in between the plaintiffs and the defendant
iv. The plaintiffs having failed to prove the tenancy are not entitled to a decree.
7. The respondent No.1 preferred an appeal there against marked as Title Appeal No. 20/1993. By a judgment and order dated 31st May, 1995, the learned Appellate Court held that although the plaintiffs have failed to prove the relationship of landlord and tenant by and between them and the defendant or that the defendant had been let into the tenanted premises on leave and license basis, the plaintiffs - respondents are entitled to a decree for possession on the basis of his general title.
8. The learned First Appellate Court also rejected the appellant’s contention that he has acquired title by adverse possession.
It was held:
“It is needless to mention the learned Munsif of the court below in the body of the judgment, at the time of discussion (page 20 begins) issue nos. 6 and 8 on being satisfied by the plaintiffs chain of documents of their title over the suit premises and in such a position, the plaintiffs were entitled to get the decree for recovery of possession as owner of the suit premises and in this regard decision so referred by the learned lawyer of the appellants as re
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