2014 Supreme(Bom) 1078

In the High Court of Bombay at Aurangabad
T.V. NALAWADE, J.
Dilipkumar Bherumal Kucheriya
Versus
Subhashchandra Nemichand Kucheriya & Others
Second Appeal No. 746 of 2008
Decided on : 08-05-2014

Headnote:Limitation Act, 1963 - Article 65 - Adverse possession. - Since defendants came in possession of suit property after partition in joint family hence their possession is permissive and not adverse. - From the evidence given in examination-in-chief by defendant No. 1, it can be said that it is to the effect that as a member of joint Hindu family, they came in possession. Thus, there is clear admission that when they entered in the property, it was permissive possession. Here it needs to kept in mind that there is no record whatsoever to show that there was joint family of Khivraj with predecessors in title of defendant No. 1. The evidence does not show that they had disputed the title of ‘K‘ during his lifetime. The entry made in city survey record cannot be used in this regard as there is nothing on the record to show that after giving notices to concerned, the entry was made. From the evidence, it can be said that there is some indirect evidence on adverse possession, which is to the effect that agreement was made to sell the property to third party by defendant No. 1. It cannot be disputed that this was within the knowledge of the real owner. Thus, there is no specific evidence on the ingredients of ‘adverse possession‘.

       In the present case, the defendant No. 1 has failed to prove the ingredients of ‘adverse possession‘. Argument was advanced that the defendant had denied title of plaintiffs in suit filed under the Rent Control Act and it needs to be treated that since 1975 the possession became adverse. This submission cannot be accepted as there is no such specific plea. Further, that suit was based on different cause of action and only due to resistance of the suit, it cannot be said that the possession ceased to be permissive. Thus, in fact the defendant has been in possession for many years, but the possession is not of adverse nature and so, defendant cannot prove the ownership due to adverse possession.

       Civil Procedure Code, 1908 - Section 11 - Principle of Respondent judicata. - Decision of a previous suit with different party not strictly operates as Respondent judicata but failure of concerned party to prove ownership in previous suit becomes relevant fact. - The decision of the civil suit filed against defendant No. 1 by third party cannot be used in the present case. Admittedly, the said suit was filed by third party for repudiation of contract between him and defendant No. 1. It was the contention of the plaintiff of that suit that the defendant of the said suit; present appellant, had no title and so, there was the right to the plaintiff to repudiate the contract. The said Special Civil Suit No. 72/1975 was filed by one ‘G‘ and in that case, while deciding the suit in favour of ‘G‘ and against the present appellant, the Court held that the names of ‘B‘ and ‘S‘ were entered in city survey record of the present suit property only on the basis of possession of these persons at the time of making of the review of properties and so, no title had passed to them on the basis of such entry.

       It can be said that in the said suit, the present appellant failed to prove the title in respect of the suit property and he was claiming that he was the owner of the property. It can be said that whatever record available was produced by the present appellant in the said suit, but he failed to prove the ownership. In strict sense, it cannot be said that the said decision operates as Respondent judicata against the present appellant, but the circumstance becomes relevant fact to show that there was no record whatsoever with the present appellant to prove the ownership and the entry was not made on the basis of any document of title or partition. Even if, the use of this decree of the said suit can be limited to that extent, the things cannot change for the present appellant. It was open to present appellant to prove that he has become owner due to adverse possession or his predecessor got property in partition, but he failed to prove such case.

       Civil Procedure Code, 1908 - Section 11, Order II, Rule 2 - Applicability of Res judicata. - Where previous suit under Rent Control Act was filed before Small Causes Court therefore subsequent suit claiming title based on adverse possession not barred by principle of res-judicata. - It cannot be disputed that the jurisdiction of Small Causes Court is limited to decide the dispute between the landlord and tenant and only when such relationship exists, the matter can be decided. Thus, there was no question of use of principle of res-judicata in the present suit filed on the basis of title. The suit falls under Article 65 of Limitation Act and so, the burden was on the defendant to prove the adverse possession. Such suit could not have been decided by the Small Causes Court. For the same reason, it can be said that the provisions of Order II, Rule 2 cannot be used against the plaintiffs. In previous suit, the present relief could not have been claimed before the Court created for litigation under the rent legislation. On this point, reliance was placed on the case of Shivaji s/o. Banaji Bhagat (Deceased through L.Rs.) v. Maroti s/o. Dewaji Pawar (Deceased through L.Rs.), 2008 (2) All MR 640 Bombay High Court (Nagpur Bench) by the plaintiffs. This Court has observed that when the relief was not legally available in the previous suit as it could not have been claimed, such relief can be claimed in subsequent suit. The facts were similar and so the observations are applicable to the present case.

       In 2008 (6) All MR 309 Bombay High Court (Nagpur Bench) by referring the provisions of Section 11, Order II, Rule 2, Order VII, Rule 11 of CPC, this Court observed that the second suit on the basis of cause of action in earlier suit is barred. There cannot be any dispute over this proposition, but there should be similar facts to which the provisions can be made applicable. The facts of the present case are totally different. The object behind the provisions of Order II, Rule 2 is discussed by this Court in the case of M.V.x. Press Annapurana & Anr. v. Gitanjali Woolens Pvt. Ltd. & Ors., 2011 (3) All MR 604 Bombay High Court, there cannot be any dispute over the interpretation of the provisions made by this Court. Similar observations are made in the cases of S.N.P. Shipping Services Pvt. Ltd. and Ors. v. World Tanker Carrier Corporation and Anr., AIR 2000 Bom 34 and Gajanan R. Salvi v. Satish Shankar Gupte & Ors., 2004 (Supp 2) Bom CR 917. Thus, there is no force in the contention that present suit is barred due to the provision of Section 11 of CPC or provision of Order 2, Rule 2 of CPC.