Land Acquisition Act, 1894 – Land given on lease for 20 years to the defendant with a clause that plaintiff-lessor could seek ejectment of the defendant-lessee from the leased premises, only in case the rent for one year remained in arrear – After six years, entire leased land acquired under s.4 of the Land Acquisition Act – Land Acquisition Collector determined market value of the acquired land – Dispute with regard to apportionment of compensation referred to the Reference Court – Lessee claimed share in the compensation on the ground that they were deprived of the right to retain possession of leased land for the unexpired period of 14 years of the lease in their favour – Reference court held that the lessee had not paid rent for more than 12 months and, thus, in accordance with clause 9 of the lease deed, the lease had come to an end and therefore, the lessee had no right to claim a share in the compensation payable for the land leased to them – After about two years, a part of the land acquired stood de-notified and the said land continued to be in possession of the lessee – Thereafter, the lessor filed suit for possession of the said land i.e. the land leased that continued in possession with the lessee post the de-notification – Trial court decreed the suit – In appeal against the said judgment, the lessee sought amendment of his written statement asserting that the suit was barred by limitation under Art. 66 of the Schedule to the Limitation Act – First Appellate Court did not permit the lessee to amend the written statement but the question of limitation was allowed to be raised on the basis of material available on record – First Appellate Court did not find any merit in the argument raised by the lessee that the award passed by the Reference Court operated as res judicata – First Appellate Court found that the plea of forfeiture was totally inconsistent and contradictory to the averments made in the original statement – High Court allowed the second appeal filed by lessee holding that the finding recorded in the award that upon non-payment of rent for 12 months, the lease had come to an end, had attained finality – Therefore, such finding would operate as res judicata – High Court further held that period of limitation under Art.67 of the Limitation Act is 12 years, the period for which commences from the date when the tenancy is determined and since the tenancy was determined in 1960, the suit filed in 1981 was beyond the period of limitation – Hence instant appeal – Held: The issue in the proceedings under s.30 of the Act, before the Reference Court was restricted to the apportionment of compensation, consequent to the acquisition of the leased land – The issue was restricted to the payment of compensation on account of the unexpired period of lease and issue was not the title of the lessor or the eviction of the lessee – Before the award was announced by the Reference Court, part of the land acquired was de-notified – After denotification of the land, the lessee continued to be in possession and the title of the lessor as owners stood restored – De-notification under s.48 of the Act is possible only when possession has not been taken and the land has not been vested in the State – Once the land was de-notified, the status of the parties as they existed prior to s.4 notification stood revived – Finding returned in the award of the Reference Court that the lease stood determined on account of non-payment of rent was a finding made by the Reference Court for a limited purpose i.e. not to accept the lessee’s claim for compensation – Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee – Limitation Act, 1963 – Art.67. Limitation Act, 1963: Art.67 – Suit filed within 12 years of the determination of the tenancy by efflux of time – The defendant has not proved forfeiture of tenancy prior to the expiry of lease period – Mere non-payment of rent does not amount to forfeiture of tenancy – It only confers a right on the landlord to seek possession – The plaintiffs filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Art.67 alone – In view of this, the suit for possession would not be covered by Art.65 since there is a specific article i.e. Art.67 dealing with right of the lessor to claim possession after determination of tenancy – The appellants-plaintiffs claimed possession from the defendant alleging him to be the tenant and JAGDISH PRASAD (D) THR. LRS.
that he had not handed over the leased property after determination of the lease – Therefore, such suit would fall within Art.67 of the Limitation Act – Such suit having been filed within
12 years of the determination of lease by efflux of time, the same is within the period of limitation.
Res Judicata: s.11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit – The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata – Therefore, the finding recorded by the High Court that the order of the Reference Court operated as res judicata was clearly not sustainable – Code of Civil Procedure, 1908 – s.11.
Lease: Status of tenant – Tenant at sufferance or tenant holding over – The defendant was inducted as a lessee for a period of 20 years – The lessor had a right to seek possession in terms of clause 9 of the lease deed – The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased – After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over – s.116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money – If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance. Estoppel: When lessee continued to be in possession of the land leased by way of registered lease deed and admitted the ownership of the lessor before the Reference Court, it operates as estoppel against the lessee in respect of the title of the lessor. Adverse Possession: Respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant – The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years – The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner – The question of adverse possession without admitting the title of the real owner is not tenable.
Allowing the appeal, the Court
HELD: 1. The issue in the proceedings under Section 30 of the Act, before the Reference Court was restricted to the apportionment of compensation, consequent to the acquisition of the leased land. The argument was raised that the lessee had another 14 years of the lease period, therefore, the lessee claimed compensation in lieu of the unexpired lease period. The issue was restricted to the payment of compensation on account of the unexpired period of lease. The issue in question was not the title of the appellants or the eviction of the respondent. Still further, the finding of the Reference Court is that the respondent had no right to claim a share in the compensation. The entitlement of the appellants to claim possession from the tenant was not an issue in the previous proceedings. Before the award was announced by the Reference Court, part of the land acquired was de-notified. Once the land was de-notified, the status of the parties as they existed prior to notification under Section 4 of the Act stood revived. [Paras 23, 24] [1026-F-H; 1027-A-B] Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer [2000] 1 SCR 1095 ; Ishwer Singh v. Sarwan Singh AIR 1965 SC 948 ; Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976) 4 SCC 780 : [1976] 3 SCR
721 ; Run Bahadur Singh v. Lucho Koer ILR (1885)
11 Cal 301 ; Asgar & Ors. v. Mohan Varma and
Others [2019] 2 SCR 664 - referred to.
2. The High Court has relied upon the findings recorded by the Reference Court that the tenancy stood terminated so as to deny the apportionment of the compensation in respect of acquisition of land. The issue examined by the Reference Court was whether the defendant was entitled to any share of compensation awarded for the land acquired. Such issue was decided against the defendant. It is this finding that the defendant is not entitled to any share of the compensation awarded which operates as res judicata in a subsequent suit and not the JAGDISH PRASAD (D) THR. LRS.
reasonings recorded by the Court for arriving at such a finding. [Para 25] [1027-C-D]
Union of India v. Nanak Singh AIR 1968 SC 1370: [1968] 2 SCR 887 ; Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830 – relied on.
3. The finding returned in the award of the Reference Court that the lease stood determined on account of nonpayment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendant’s claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. [Para 27] [1028-E-G]
4. In respect of second question of law examined by the High Court that the plaintiff’s suit was barred by limitation is based upon the notice produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable. [Para 28] [1028-H; 1029A-C]
5. The defendant was inducted as a lessee for a period of
20 years. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance. [Para 29] [1029-D-F] Bhawanji Lakhamshi and Others v. Himatlal Jamnadas Dani and Others (1972) 2 SCC 388 : [1972] 2 SCR
890 ; Badrilal v. Municipal Corpn. of Indore (1973) 2 SCC 388 : [1973] 3 SCR 15 ; R.V. Bhupal Prasad v. State of A.P and Others (1995) 5 SCC 698 : [1995] 2 Suppl. SCR 658 ; Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Company Ltd. AIR 2019 SC 2664 ; Bisheshar Nath v. Kundan & Ors. ILR (1922) 44 All 583 ; Sheo Dulare Lal Sah v. Anant Ram & Anr. AIR 1954 All. 475 – referred to.
6. The suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on JAGDISH PRASAD (D) THR. LRS.
13th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and are, thus, set aside. [Paras 38, 39] [1038-G-H; 1039-A-C]
MEC India Pvt. Ltd. v. Lt. Col. Inder Maira & Ors. 80 (1999) Delhi Law Times 67 ; Sidram Lachmaya, heir and legal representative of deceased Lachmaya Shivram Madur, heir of Original Plaintiff v. Mallaya Lingaya Chilaka ILR 1949 Bom 135 (FB) : (1948) SCC OnLine Bom – referred to.
7. The respondent continued to be in possession of the land leased vide registered lease deed dated 22nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. [Para 41] [1039-D-G]
Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : (2020) SCC OnLine SC 37 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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