1. This is a defendants appeal in a suit brought by the plaintiff for recovery of possession of the land in dispute from the defendant. The facts giving rise to this appeal may be summarized as follows.

2. The plaintiff respondent filed a suit for recovery of pos­session of 1 Kanal and 6 Marlas of land comprising Khasra No. 1850 in Tehsil Kishtwar. The proposed vendor. Qadus, exe­cuted an agreement to sell the land in dispute for a sum of Rs. 400 in favour of the appellant Ghulam Qadir. This agreement was executed on 21st Chet. 1998 (Bikrami). Possession of the land in dispute was delivered to the proposed vendee at the time of execution of the agreement. The proposed vendor Qadus received the entire consideration money of Rs. 400 but did not execute the sale deed. The present suit for possession was insti­tuted on 17th Assuj, 2021 = 1-10-1964.

3. The suit was resisted by the defendant mainly on the ground that his possession under the agreement of sale became adverse from the date of its execution and therefore the defen­dant acquired title by adverse possession.

4. Both the Courts below have negatived the contention of the defendants but held that as the possession of the defendants was purely permissive the plaintiffs suit was entitled to succeed.

5. This case was originally heard by Jaswant Singh J. sitting singly but in view of the point of law involved he has referred this case to the Full Bench.

6. One of the points involved in this case is the same which we have decided in Civil revision No. 100 of 1969-Shiv Kumar & Ors. V. Aiodhia Nath & others. In this case we have clearly held that to begin with the possession of the proposed vendee under an agreement to sell will be permissive unless it is con­verted into an adverse one by a disclaimer of the title of the landlord or by assertion of other hostile acts We have further held that the possession of the defendant will become adverse from the date when the right to sue for specific performance becomes barred In the instant case however- under the terms and recitals of the agreement to sell, no time limit was fixed for execution of the sale deed and in these circumstances time would continue to run from the date when the plaintiff had notice that performance was refused No evidence was adduced before the courts below regarding there being any refusal on the part of the plaintiff to execute the sale deed and yet the defendants remained in possession of the property without the sale deed being executed for more than 22 years, before the filing of the present suit.

7. The only point that has been argued before us is where the vendor had delivered possession of the property in dispute to the defendant and had received the entire consideration money and remained silent for a long period of 22 years, he will be estopped from recovering possession of the property, even apart from the question of adverse possession. It is true that the question of adverse possession in this case does not arise be­cause there has been no refusal on the part of the proposed vendor to execute the sale deed, but we are rather impressed with the argument of the learned counsel for the appellant that as the plaintiff himself had given possession and received the entire consideration money, he cannot be allowed to take ad­vantage of his own fraud, so as to recover possession from the defendants after such a long time. In Venkatesh Damodhar V. Mallappa Bhimappa, 46 Bombay 722, 724, 726 a Division Bench of the Bombay High Court, in almost similar circum­stances, observed as follows: -

"The result is that Damodhar has agreed to sell the property to the first defendant who was then in possession, and had all along been in possession since the time of the decree, and the defendant paid the purchase price. It is quite true that the defendant has not got a sale deed, and the time has passed within which he could have sued Damodhar to get a sale deed But the equitable principles which should be applied to these

Click Here to Read the rest of this document