Whether party in possession of immovable property on basis of agreement of sale can claim adverse possession?

 Similar view on the point of law was taken by the Hon'ble Supreme Court in the case of L.N. Aswathama and Another v. P. Prakash reported in MANU/SC/1222/2009 : (2009) 13 SCC 229, wherein the Hon'ble Supreme Court, while dealing with Section 53A of the Transfer of Properties Act, has held as under:-

"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi [MANU/SC/0821/1995 : (1995) 6 SCC 523], Md. Mohammad Ali v. Jagadish Kalia [MANU/SC/0785/2003 : (2004) 1 SCC 271] and P.T. Munichikkanna Reddy v. Revamma [MANU/SC/7325/2007 : (2007) 6 SCC 59]".

17. Thus, from the aforesaid two judgments, the law is well settled that the claim of perfection of title by adverse possession is not available to the plaintiffs of this case since it is the case of the plaintiffs that they came in possession over the land in question pursuant to an agreement for sale and admittedly, the sale did not take effect. Thus, the possession of the plaintiffs over the land in question cannot be said to be hostile to the true owner even if he has continued in possession for more than 12 years. The possession is nothing, but, permissive.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 152 of 1989

Decided On: 23.07.2019

 Salim Raza  Vs.  Mohan Mistry

Hon'ble Judges/Coram:

Ananda Sen, J.

Citation: AIR 2019 JHAR173

Print Page

When burden of proof is on defendant to prove that he is tenant?

 The entire case of the appellant is based on the proposition that as he was occupying the suit premises since 1979, it was with the permission of the landlord and as he was allowed to stay on the suit premises, so it is to be inferred that rent was paid by him and accepted by the landlord. It is contended that the appellant has proved that he is a tenant then ground of encroachment as pleaded by the plaintiff goes away and the plaintiff has no right to claim possession on the ground of encroachment and so no relief either of perpetual injunction or mandatory injunction or possession can be granted in favour of the appellant. Thus, foundation of the case of the appellant is that he is a tenant of the respondent. This fundamental fact is required to be proved. Question is whether this fact can be proved in the absence of any documentary or sufficient oral evidence?

13. Admittedly, no documentary evidence either of rent receipt or any agreement is produced by the appellant in both the suits. The appellant tried to prove this fact with the help of these three witnesses. However, he did not mention anything about obtaining the suit property with the help of any middle-man. Had this suit property been obtained with the help of Mr. Bhandilkar, then this fact ought to have been mentioned by the appellant in the written statement. Oral evidence should pass a test of credibility. It is expected that party should take a consistent stand to build up his case from the initial stage of the suit. Admittedly, the respondent had let out few shops or premises near the suit premises, to other persons. However, that evidence will not establish the fact that therefore the suit premises was also let out to the appellant by the respondent-landlord. The fact of possession is not challenged as there is a prayer of the possession and relief to that extent is prayed by the plaintiff. Thus, the fact that the appellant is in possession of the suit property since 1979 is itself not helpful to the appellant to establish tenancy. Long possession or even permissive long possession cannot itself establish a person is a tenant of the landlord. It can be only said that he was allowed to stay or remain on the suit property for some period and for that period, his possession was tolerated and therefore he cannot be labelled as an encroacher for that period. As soon as a permission is withdrawn, the status of an occupant is converted into an encroacher. Thus, in the absence of any tenancy, no legal right is created in favour of the appellant against the respondent.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 504 of 1991, 

Decided On: 05.10.2012

Pandurang Dharma Gaikwad  Vs. Mahamudmuya Ahmadsaheb Patil

Hon'ble Judges/Coram:

Mrs. Mridula Bhatkar, J.

Citation: 2013(2) MHLJ 949

Print Page

Whether mandatory injunction can be granted for vacation of property by person in permissive possession of property?

 I have given my anxious consideration to the arguments advanced by the counsel appearing for both parties at the Bar. In view of the rival contentions, the first question that arises for consideration is whether a suit for mandatory injunction simpliciter requiring vacation of the property is maintainable against the licensee or a person in permissive occupation whose licence or occupation has been terminated by the licensor? To consider the question in controversy, it is worthwhile to quote the relevant Sections.

9. Section 39 of the Specific Relief Act, 1963, reads as follows:

Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

10. Section 52 of the Indian Easement Act, 1882, reads as follows:

"License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.

11. Let us make a combined analysis of Section 52 of the Indian Easement Act and Section 39 of the Specific Relief Act, to determine the question arose above. Licence is a permission granted to the licensee to do or continue to do some act in or upon the immovable property. But the granting of that permission does not create any interest in the property and in the absence of such permission the act would be an unlawful one also. Licensee may be the actual occupant of the property and there cannot be an element of animus possidendi. A licensee has only a right of occupation with the permission of licensor and his possession is not a juridical possession. Since the permission granted is a limited one, which does not cause to create an interest in the property, the licensor has a right to revoke the permission which he had given earlier. Necessarily, such revocation correspondingly casts an obligation on the licensee to vacate the property in obedience to the revocation of permission. If that be so, if the licensee fails to perform his obligation, i.e., vacation of the property, the Court can issue a mandatory injunction to prevent the breach of said obligation and to compel the vacation of the immovable property. Thus, a combined analysis of Section itself makes the issuance of mandatory injunction against the licensee to vacate the property in possession of licensee within the legislative sanction under Section 52 of the Indian Easement Act and under Section 39 of the Specific Relief Act.

12. It follows that such mandatory injunction order to vacate the property is an enforceable one under Order XXI Rule 32, particularly, in view of Explanation under sub-rule (5) of Order XXI, which clarifies that "the act required to be done covers both prohibitory as well as mandatory injunction".

 Even after the termination of the licence, the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove the materials belonging to him and quit the place. But, during such time also, the licensor will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case, a licensee cannot possibly be treated as a trespasser. Further, it is held that it will be difficult to make a distinction in actual practice as to when a licensee becomes a trespasser and upto what time he will continue to be a licensee. There can be a more definite test. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licensor slept over the matter, then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such circumstances, the licensor will have to sue for recovery of possession and a suit for a mandatory injunction under Section 39 of the Specific Relief Act, 1963, will not be the remedy. Put it differently, the real test is whether on the expiry of licence the licensee has asserted his hostile title and whether the licensor had slept over the matter despite the assertion of hostile title made by the licensee, after the termination of licence?

IN THE HIGH COURT OF KERALA

R.S.A. No. 1278 of 2010

Decided On: 18.02.2014

Abraham Mathew Vs.  Mariamma Yohannan

Hon'ble Judges/Coram:

K. Harilal, J.

Citation: 2015(1) RCR (RENT)19

Print Page

Whether person in permissive possession claim possession of property against original owner?

 The Supreme Court in case of Maria Margarida Sequeria
Fernandes & Ors. (supra) has held that merely because the person
is allowed to stay in the premises gratuitously, even by long
possession of years or decades such person would not acquire any
right, title or interest to the said property. It is held that such person
can never acquire interest in the property irrespective of his long
possession and was to give possession forthwith on demand by the
owner of the suit property. It is held that the Courts are not justified in
protecting the possession of a caretaker, servant or any person who
was allowed to live in the premises for some time either as a friend,
relative, caretaker or as a servant. Such persons holds property of
the principal only on behalf of the principal and does not acquire any
right, title or interest of any nature whatsoever in the suit property.
19. In my view, the conclusion drawn by two Courts below is
contrary to the clear finding that possession of the defendant no.1

was permissive possession and no right, title or interest of any nature
whatsoever was either claimed or proved by the defendant no.1 in
the suit property and is contrary to the principles laid down by the
Supreme Court in case of Maria Margarida Sequeria Fernandes &
Ors. (supra).
20. In my view, since the defendant no.1 had not claimed any
right, title or interest of any nature whatsoever in the suit property,
including adverse possession in respect of the suit property or
tenancy and his possession having been found as permissive
possession, the Courts below ought to have directed him to hand
over possession of the suit land to the plaintiffs, who were admittedly
the owners of the suit land. The Courts below could not have
protected the defendant no.1 merely on the basis of his permissive
possession though it was for substantial period. The period of
possession of a person without any right, title or interest which was
not adverse to the interest of the owner, could not be protected by
two Courts below.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.473 OF 2015

Parvatibai Tanu Shivgan, V Shri Dhondu Sakharam Gurav 

 CORAM : R.D. DHANUKA, J.

 PRONOUNCED ON : 7TH SEPTEMBER, 2016
Citation: 2016(6) ALLMR 16

Print Page

Whether title in property can be created or extinguished on the basis of mutation entries?

 In addition to the abovementioned reason, the contention advanced by the learned Counsel appearing on behalf of the Respondents that the Appellants failed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of entries does not confer title upon the deceased Respondent No. 1 in the immovable property. In the case of Sawarni v. Index Kaur and Ors. MANU/SC/0730/1996 : (1996) 6 SCC 223, this Court held as under:

7...Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment....

22. In the case of Guru Amarjit Singh v. Rattan Chand and Ors.MANU/SC/0065/1994 : (1993) 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v.Hakam Singh and Ors. MANU/SC/0399/1994 : (1993) 4 SCC 403, this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The Respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the Appellants in the revenue records. In the case of Thakur Kishan Singh (Dead) v. Arvind Kumar MANU/SC/0015/1995 : (1994) 6 SCC 591 and P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors.MANU/SC/7325/2007 : (2007) 6 SCC 59, this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2151 of 2016 (Arising out of SLP (C) No. 2489 of 2011)

Decided On: 01.03.2016

Prem Nath Khanna  Vs.  Narinder Nath Kapoor and Ors.

Hon'ble Judges/Coram:V. Gopala Gowda and U.U. Lalit, JJ.

Citation; AIR 2016 SC1433

Print Page

Whether court can grant decree for mandatory injunction for possession when other side is in permissive possession?

        From the narration of events and the findings of  the  Court  as
    noted above, the admitted position which  emerges  on  record  is  that
    Settlement Deed dated 25.4.1949 executed by Sundaramurthy in favour  of
    his sister Jagadambal is found to be genuine. The Courts have  rejected
    the challenge of the respondents to  the  said  settlement  deed.  This
    finding has become final. Another finding which has  attained  finality
    is that Jagadambal had subsequently purchased  the  leasehold  property
    from the temple authorities and had become the absolute  and  exclusive
    owner of the suit property. There is thus, no question  of  inheritance
    of this property by the  respondents  as  daughters  of  Sundaramurthy.
    Since Jagadambal was found to be the absolute owner  of  the  property,
    the possession of the part of this property with the respondents has to
    be permissive as rightly found by the Trial Court. It is not their case
    that they were inducted as tenants or in any other capacity which would
    confer upon them any right to stay therein. On the contrary,  the  case
    put up by them was that they are entitled to  inherit  one-third  share
    each in the said property by virtue of succession which is found to  be
    a baseless scheme. On these facts, we are of the opinion that the trial
    court was right in passing the decree of mandatory injunction in a suit
    which was filed by Jagadambal.  
                                                      
NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 4245 / 2014
       [Arising out of Special Leave Petition (Civil) No. 259 of 2012]




    Gowri     V    Shanthi and Anr.                                   
   
Citation;AIR 2014 SC2863
    A.K. SIKRI, J.

Print Page