Holding

The 1970 suit for possession was not barred by Section 47 CPC or limitation, as adverse possession could not have begun before 19 December 1958, rendering the suit timely.

Summary

The plaintiff, Ajit Chopra (through his legal representative), purchased a property in 1957 subject to pending rent‑control litigation between the vendor and the tenant, Sadhu Ram. The tenant denied any landlord‑tenant relationship and claimed title by adverse possession, leading to a fresh eviction petition in 1969 and a suit for possession filed on 5 August 1970. The High Court held the suit barred under Section 47 of the CPC, treating it as an execution of the earlier eviction decree, and allowed the appeal. The Supreme Court examined when the landlord‑tenant relationship ended, when adverse possession could commence, and whether a second suit for possession is barred by Section 47 or limitation. It held that the tenancy continued until the revision was disposed on 19 September 1958, after which the tenant became a licensee, so adverse possession could not start before 19 December 1958, making the 1970 suit timely. Consequently, the appeal was allowed and the decree of eviction was restored.

Issues considered

The High Court's jurisdiction to consider a new point of law under Section 47 CPC in a second appeal.
When the limitation period for a suit for possession begins – from the date of purchase or from the eviction order.
Whether the 1970 suit for possession is barred as an execution of the earlier eviction decree under Section 47 CPC.
Whether a fresh suit for possession is maintainable when the earlier decree was not executed within the limitation period.
When adverse possession, if any, can be said to have commenced in the context of rent‑control proceedings.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. 47
East Punjab Urban Rent Restriction Act, 1949s. 13
Limitation Act, 1908

Subjects

evictionrent controladverse possessionlimitation periodSection 47 CPCsecond suitlandlord‑tenant relationshipexecution of decree

Judgment

A AJIT CHOPRA
v.
SADHU RAM AND ORS.

NOVEMBER 2, 1999

B [M. JAGANNADHA RAO AND M.B. SHAH, JJ.]

Code of Civil Procedure, 1908.

Sections I I and 47-Eviction decree in rent control proceedings-
C Decree not executed and time barred-Suit based on title filed within I 2
years of eviction proceedings attaining finality-Tenant claiming adverse
possession-Commencement of adverse possession-When-Held, adverse
possession starts when eviction proceedings attained finality-Throughout
the rent control proceedings _the relationship as tenant continues-Whether
D second suit maintainable-Held, suit not based on eviction decree and title
in property not extinguished by adverse possession-Second suit is
maintainable and not barred by Sections I I or 47-East Punjab Urban Rent
Restriction Act, I 949.

'8' filed eviction petition against respondent-defendant under Section
E 13 of the East Punjab Urban Rent Restriction Act, 1949 which was dismissed
by Rent Controller on the ground that there was no relationship oflandlord
and tenant between parties. B preferred appeal and during its pendency B
sold the property to Con 18.6.1957. Appeal was allowed and revision preferred
by respondent was dismissed by high Court on 19.9.1958 holding that
respondent was tenant. C did not execute eviction order and allowed respondent
F to continue as tenant. C filed fresh eviction petition against respondent under
the said Act in which respondent filed counter affidavit contending that he
was not tenant and had acquired title by adverse possession. Thereafter C
filed suit on 5.8.1970 for possession based on title which was contested by
respondent by claiming adverse possession. Trial court and first appellate court
G decreed eviction and rejected plea of adverse possession on the ground that
suit was filed within 12 years from 19.9.1958 when earlier proceedings had
become final. Second Appeal, filed by respondent was allowed by High Court
on the ground that suit for possession stood barred by Section 47 of the Code
-
of Civil Procedure since all matters concerning execution, satisfaction ·and
discharge of previous suit were to be agitated in execution proceedings and
H 340
AJIT CHOPRA v. SADHU RAM 341
not by separate suit. Hence, this appeal by legal representative of C. A
The appellant contended that suit was not in the nature of execution of
earlier order of eviction and was not barred; that suit was based upon denial

- of title of plaintiff by respondent in second eviction petition which gave fresh
cause of action; and that respondent could not claim adverse possession as
suit was filed within 12 years from the date on which earlier eviction case
had become final.
B

The respondent contended that suit was not maintainable in view of
Sec\ion 47 C.P.C.; that adverse possession started from the date of purchase
by plaintiff C as he did not get himself impleaded in first eviction case; and C
that in any event, limitation started from 30.9.1957 when Rent Appellate
Authority ordered eviction in the earlier case and therefore, suit was barred
by time.

Allowing the appeal, the Court

HELD: 1. The Rent Appellate Authority declared that there was in fact, D
a relationship oflandlord and tenant between the parties and ordered eviction
on 30.9.1957. The said declaration as to the nature of the relationship between
B and the respondent would be effective from the date of filing of the eviction
case on 19.7.1955 by B. Hence, there could not be any adverse possession
from 19.7.1955 merely because the respondent denied his relationship as E.
tenant from 1955 in the first eviction case. The relationship as tenant
continues throughout the proceedings before the Rent Controller, then during
. the pendency of the appeal and till the statutory revision under the Act is
disposed of. The relationship does not go on oscillating during the pendency
,. of the proceedings depending upon whether eviction is granted or not in
between. Therefore, the relationship oflandlord and tenant did not come to an F
end on 30.9.1957 when the landlord's appeal was allowed by the appellate
authority and such relationship continued during the pendency of the tenant's
statutory revision till 19.9.1958. Therefore, the respondent was a tenant upto
19.9.1958 when the revision was disposed of and, that thereafter the
respondent was a licensee for a period of 3 months upto 19.12.1958. The G
adverse possession, if any, could never have therefore started before
19.12.1958. The suit filed on 5.8.1970 was in time. [347-F-G)

2. The plaintifrs purchase was subject to the result of the litigation
between the vendor Band the respondent. That would mean that the plaintiff's
right to possession of the property purchased, was by agreement with the H
342 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A vendor, dependent upon the result of the pending proceedings and the plaintiff
had no immediate right to possession. The defendant continued to be in the
position of a tenant vis-a-vis the vendor and vis-a-vis the premises even after
the plaintifrs purchase. If the respondent was a tenant of the premises till
the revision was disposed of, he could not claim that he was in adverse
B possess!on against B or B's vendee when the latter had no right to immediate
physical possession. Therefore, it cannot be accepted that the respondent's
adverse possession started against the plaintiff from the date of sale by B to
hill! on 18. 7.1957. (348-E-F)
•
3.1 It was in the fresh rent control case in 1969 that the respondent
C filed a counter affidavit stating that he was the owner of the four quarters and
that he had prescribed title by adverse possession. This plea of the plaintiff
was indeed admitted in para 8 of the written statement to the suit. Thus, the.
present sµit is not one for execution of the eviction order passed in the first

. -
rent control case. The High Court was, therefore, wrong in treating the
present suit as one 'virtually' for execution of the order of eviction passed in
D the earlier rent control case. Hence the bar under Section 47 C.P.C. cannot
apply. [350-F) ·

3.2. A judgment and decree, which was passed in a previous suit under
the Rent Control Act by which it was held that respondent was tenant and
that he was required to vacate the premises on or before 1~.12.1958, would
E not bar a fresh suit for recovery of possession from a tenant. Unless, the
respondent-1enant establishes that he has become owner of the suit property
by adverse .possessio·n, the suit filed by the owner on the basis of his title
,. cai,inot be dismissed despite the fact that application for the execution of the
decree passed under the Rent Act was barred after lapse of three years. By
F lapse of time; plaintiff has lost right to execute the previou~ decree as it became
time-barred but has not lost the title. Unless the title is extinguished, second
suit by the owner if filed within period of limitation is not barred. The second
suit on title was filed on 5.8.1970 within 12 years of the commencement of
the adverse possession on 19.12.1958 i.e. before 19.12.1970. Thus, the present
suit is not barred by Section 11 or Section 47 of the Code of Civil Procedure
G and is maintainable. [354-D-H)
Mhadagonda Ra_mgonda Patil and Ors. v. Shripal Ba/want Rainade and
Ors., [1988] 2 SCC 298, followed. ·-
Mangan/a/ v. Jaiswal Industries, Neemach and Ors., ]1989) 4 SCC 344
H and Harbans Singh and Anr. v. Guran Ditta Singh and Anr., [1991] 2 SCC
AJIT CHOPRA v. SADHU RAM [M'. JAGANNADHA RAO, J.) 343

523, relied on • A
.....
Raghunath Singh and Ors. v. Hansraj Kunwar and Ors., (1934) ILR 56
All. 561; Kutti Ali v. Chindan and Anr., (1900) ILR 23 Mad. 629;
Viroopakashan v. Chambu Nayar and Ors., (1937) ILR Mad. 545; Amina v.

-· Ahmad, (1949) I MLJ 465 and Madhavan Variar v. Chathu Nambiar, (1950)
2 MLJ 501, approved. B

Vedapuratti v. Vallabha Valiya Raja and Ors., (1902) ILR 25 Mad. 300,
overruled.

Mayankutti v. Kunhammad and Ors., (1918) ILR 41 Mad. 641; Dinu
Yesu Desai v. Shripad Baji Carware, AIR, (1919) Born. 34; Ramanand and c
Ors. v. Jai Ram and Ors. AIR, (1921) All. 369; Sovani Jena v. Bhima Ray AIR,
(1922) Pat. 407; Mal Singh Bika Singh and Ors. v. Mohinder Singh Mehar
Singh AIR (1970) P & H 509 and Chhagan Lal v. The Indian !.•on and Steel
Co. and Ors. AIR, (1979) Cal 160, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 755 of
D
1997.

From the Judgment and Order dated 29.10.91 of the Himachal Pradesh
High Court in R.S.A. No. 70of1977.

Seeraj Bagga and Ms. Shureshtha Bagga for the Appellant. E

Atul Sharma, V. Balaji and E.C. Agrawala for the Respondents.

The Judgment of the Cqurt was delivered by

.. M. JAGANNADHA RAO, J. The appellant is the legal representative F
of the original plaintiff Sri R.C. Chopra in the suit bearing Suit No. 25/1 of 1970
on the file of the Senior Sub-Judge, Simla District, Simla, in the State of
Himachal Pradesh. The present suit was filed by the said Sri R.C. Chopra for
possession and Rs. 610 as past mesne profits. The trial Court decreed the suit
on 30.11.1976 for possession but refused to pass a decree for mesne profits.
G
The defendant appealed before the District Court, Simla which dismissed the
appeal by judgment dated 23. 7.1977. On further appeal by the defendant in
-·'-' R.S.A. No.70 of 1977, learned Single Judge of the High Court of Himachal
Pradesh, by judgment dated 29.10.91 allowed the appeal, set aside the
judgments of the lower Courts and dismissed the suit on a new question,
namely, that the present suit was not maintainable 'in view of Section 4 7 of H
•·
344 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A the Code of Civil Procedure, as it stood before the 1976 Amendment. The
plaintiff died on 22.10.85, during the pendency of the Second appeal. This
appeal by Special Leave has been preferred by the plaintiffs legal
representatives.

The property in question belonged originally .to one Dewan Chand
B Bhatia of Simla and the present plaintiff Sri R.C. Chopra purchased the same
on 18.6.1957 by way of a registered sale deed. It appears that the plaintiffs
vendor Sri Bhatia granted a lease in favour of the respondent - defendant on
10.2.1952. Later, Sri Bliatia filed an eviction petition on 19.7.1955 under Section
13 of the East Punjab Urban Rent Restriction Act, 1949 on various grounds.
C The respondent denied the relationship of landlord and tenant. The said
contention of the tenant was accepted and the eviction case was dismissed
by the Rent Controller, Simla on 25.9.1956. The landlord Bhatia's.appeal before
the Appellate Authority succeeded and appeal was allowed on 30.9.57 holding
respondent was a tenant and that grounds existed for his eviction. (It was
during the pendency of that first appeal that the present plaintiff purchased
D the property from Sri Bhatia on 18.6.1957, subject to the decision of the
appeal). The respondent-tenant filed a revision in the High Court on 2. 1.1958
contending that he was not a tenant and seeking stay of dispCJssession which
was granted on 15.1.1958. Ultimately, the revision was dismissed by the High
Court on 19.9.58 holding that the respondent was a tenant. Three months time
E was granted for vacation of the premises. The eviction order was not executed
for quite some time but the present suit was filed by the appellant (purchaser
from Mr.Bhatia) within 12 years from 2.1.1958, the dismissal of the tenant's
revision.

It is the case of Sri R.C.Chopra, the present plaintiff that as a purchaser
F from Sri Bhatia, by sale deed dated 18.6.1957 he tried to evict the respondent
but that the respondent entreated that he be not evicted. The present plaintiff
was in Government service and was at Bombay and was being transferred
from place to place. Therefore, it is said, the plaintiff agreed afresh to allow
the respondent to continue as his tenant. But, it is said, the respondent was
G not paying rent and this led to the appellant giving a notice on 24. 7 .1969 to
the respondent for eviction and demanding arrears of rent. There was no reply
from the respondent.

At that stage i.e., after 24.7 .1969, ad!11ittedly, Sri R.C.Chopra the present
plaintiff filed a fresh eviction petition against the respondent, under the East
H Punjab Rent Restriction Act, 1949. In that eviction case, the respondent filed
AJIT CHOPRA v. SADHU RAM [M. JAGANNADHA RAO, J.] 345
a counter contending that he was not a tenant, and that he was not liable to A
pay any arrears of rent and that he had acquired title by adverse possession.

The present suit for possession based on title was therefore filed on
5.8.1970 and also seeking Rs.610 as compensation for use and occupation.
The respondent filed written statement claiming adverse possession on the
lines of his counter in the second eviction petition. The appellant filed B
replication on 28.10.1970. The appellant amended the plaint claiming
compensation for a period of 3 years from 3.8.70 to 3.8.73. The trial Court
and the first Appellate Court, decreed eviction and rejected the plea of
adverse possession because the suit filed on 5.8.1970 was within 12 years
from 19.9.1958, on which date the earlier Rent Control Case between the C
respondent and the plaintiffs vendor, Sri Bhatia was concluded by way of
dismissal of the tenant's revision.

On appeal by the defendant, the High Court of Hirnachal Pradesh,
raised a new point which was not raised in the lower courts and held that
the present suit was one, "in reality", in the nature of execution of the earlier D
eviction order in the rent control case filed by Mr. Bhatia before the Rent
Controller and that therefore, this suit stood barred by Section 47 of the
Code of Civil Procedure since all matters concerning the execution,
satisfaction and discharge of the previous suit were to be agitated in the
execution proceedings in the previous eviction matter and not by a separate E
suit.

In this appeal before us by Sri R.C.Chopra's legal representatives, their
learned counsel contended that the point under Section 4 7 of the Code of
Civil Procedure was not raised in the lower Courts, nor in the grounds of
Second appeal and that the High Court ought not to have allowed the said F
question in the Second Appeal. It was argued that the suit was not "·in
reality" one in the nature of execution of the earlier order of eviction in
favour of the plaintiff's vendor, Sri Bhatia in the rent control case and was .
not barred. It was argued that this suit was based upon a fresh cause of
action, namely, the denial of Mr. Chopra 's in the counter filed in the second G
eviction case of 1969. Assuming that the adverse possession started, it could
] not have started earlier than 19.9.1958 when the tenant-respondent's revision
in the earlier eviction case was' dismissed. The present suit, it is pointed out
has been filed within 12 years from 19.9.58 on 5.8.70.

On the other hand, learned counsel for the respondent, contended that H
346 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A the question of adverse possession or limitation of 12 years apart, the basic
objection was that the suit was not maintainable in view of Section 47 CPC
inasmuch as this suit was in the nature of execution of the earlier eviction
order obtained by the plaintiffs vendor, Sri Bhatia, against the respondent
in the rent control case. The limitation, it was said started from the date of
purchase by the plaintiff Sri R.C. Chopra on 18.7.57 because Sri Chopra did
B not get himself imp leaded as a co-plaintiff in the earlier eviction case filed by
Sri Bhatia. It was contended that in any event, the decree for eviction in the
earlier case became executable even as on 30.9.57 when the Rent Appellate
Authority allowed Sri Bhatia's appeal and ordered eviction. The plaintiff could
exclude only the period from 15.1.58 to 19.9.58 when the respondent obtained
C stay of eviction from the High Court. Therefore, the present suit was both not
maintainable and was also barred by time.

On the above contentions, the following points arise for consideration:

(I) Was the High Court right in entertaining a new point for consideration
D in the Second appeal and treating it as a 'substantial question of law' and
allowing the appeal on that ground?

(2) Did limitation start against the appellant from 18.7.57 when the
plaintiff purchased from Sri Bhatia or from 3.9.57 when the Rent Appellate
Authority, in the earlier case ordered eviction in favour of Sri Bhatia?
E
(3) In any event, was the present suit "in reality" one in the nature of
execution of the first rent control eviction order obtained by the plaintiff's
vendor Sri Bhatia against the respondent and was it therefore barred by
Section 47 CPC?

F (4) If the order for eviction in the rent control case was not executed
within limitation, could a fresh suit lie for eviction and was it be barred by
Section 47 CPC?

POINT NO. I

G Learned counsel for the appellant placed reliance on the decision of this
Court in Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors.,
[1997] 5 SCC 438 to say that under sub-clause (5) of Section 100 of the
Code of Civil Procedure, as amended in 1976, the Second Appellate Court
{
could not have taken up a new question of law without stating whether it was
H a substantial question of law.
AJIT CHOPRA v. SADHU RAM [M. JAGANNADHA RAO, J.] 347
We do not think it necessary to decide this point because we feel that A
this appeal can be disposed of in favour of the appellant on Points· 2, 3 and
4, even assuming that the point raised by the High Court under Section 47,
C.P.C. is a substantial question of law.

POINTN0.2:
B
We shall here assume that after the dismissal of the revision petition
on 19.9.58 of the respondent, there was no fresh lease between the present
plaintiff and the respondent in 1959 even though it was so contended in the
present plaint.

In our view, during the period of 3 months from 19.9.58 granted by C
the High Court in the rent control case to the respondent to vacate, the
respondent was in the position of a licensee as per the permission of the High
Court i.e., upto 19.12.1958 and not as a trespasser.

In the earlier Rent Control case filed by the present plaintiff's vendor, D
Sri Bhatia on the basis of tenancy, even though the said relationship was
denied by the respondent and the Rent Controller accepted that plea of the
tenant, the Rent Appellate Authority declared that there was in fact, a
relationship of landlord and tenant between the parties and ordered eviction
on 30.9.57. In our view, the said declaration as to the nature of the relationship
between Sri Bhatia and the respondent would be effective from the date of E
filing of the eviction case on 19.7.55 by Sri Bhatia. Hence, there could not
be any adverse possession from 19.7.1955 merely because the respondent
denied his relationship as tenant from 1955 in the first eviction case. When
the High Court in revision confirmed the said finding of the Rent Appellate
Authority on 19.9.58, the High Court too put its seal of approval that such F
a relationship of landlord and tenant existed from 1955 till the date of
disposal of the revision petition. We are, therefore, clearly of the view that
the respondent was a tenant upto 19.9.1958 when the revision was disposed
of and, that thereafter the respondent was a licensee for a period of 3 months
upto 19.12.1958. The adverse possession, if any, could never have therefore
started before 19.12.1958. The suit filed on 5.8.1970 was in time. G
It was, however, argued for the respondent that the relationship of
landlord and tenant stood determined on 30.9.57, once the Rent Appellate
Authority ordered eviction. We are again unable to agree with this contention.
The relationship as tenant continues throughout the proceedings before the
Rent Controller, then during the pendency of the appeal and till the statutory H
348 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A revision under the Act is disposed of. It may be that in a given case the Rent
Controller may pass an eviction order and in another case, the Appellate
Authority may do so and in yet another case the revisional authority may
pass the eviction order. It may also be that, in a particular case, there is a
remand order at some stage and the authority to which the matter is remanded
B might come to a conclusion different from the one it arrived at before remand.
Throughout the proceedings, the relationship as tenant continues till the
eviction order is passed by the appellate or statutory revisional authority. The
relationship does not go on oscillating during the pendency of the proceedings
depending upon whether eviction is granted or not in between. In that view
of the matter, the contention for the tenant that the relationship of landlord
C and tenant came to an end on 30.9.1957 when the landlord's appeal was
allowed by the appellate authority and that there was no such relationship
during the pendency of the tenant's statutory revision till 19.9.1958, must
stand rejected.

We finally come to the contention that at any rate the respondent's
D adverse possession started as against Mr.Chopra (purchaser from Mr. Bhatia)
from the date of sale by Sri Bhatia to the plaintiff on 18.7.57, inasmuch as
Sri R.C.Chopra did not get impleaded in the first eviction case soon after
his purchase. We are unable to agree. Mr. Chopra's purchase was subject to
the result of the litigation between the vendor Sri Bhatia and the respondent.
E That would mean that the plaintiffs right to possession of the property
purchased, was by agreement with the vendor, dependant upon the result of
the pending proceedings and the plaintiff had no immediate right to
possession. The defendant continued to be in the position of a tenant vis- •
a-vis the vendor and vis-a-vis the premises even after the plaintiffs purchase.
If the respondent was a tenant of the premises till the revision was disposed
F of, he could not claim that he was in adverse possession against Mr. Bhatia
or against Mr. Bhatia's vendee when the latter had no right to immediate
physical possession. Therefore, this contention of the respondent, cannot be
accepted.

G Thus, even ifthe respondents adverse possession started on 19.12.1958,
when the three months time granted by the High Court expired, or even if
it be that the adverse possession started on 19.9.58 when the revision was
rejected, the suit for possession filed on 5.8.70 was well within 12 years. The
adverse possession did not start earlier. Point 2 is decided in favour of the
appellant.
H
AJIT CHOPRA v. SADHU RAM [M. JAGANNADHA RAO, J.] 349

POINT3: A
We next come to the question whether the suit was not maintainable
under section 4 7 CPC as held by the High Court for the first time in Second
Appeal.

The suit having been filed on 5.8.1970, before the Amendment of the B
Civil Procedure Code under Central Act 54 of 1976, we go by the unamended
section 4 7. That section read as follows:

"4 7. Question to be determined by the Court executing decree:-

(!) All questions arising between the parties to the suit in which the C
decree was passed, or their representatives, and relating to the
··- execution, discharge or satisfaction of the decree, shall be determined
by the court executing the decree and not by a separate.suit.

(2) The Court may, subject to any objection as to limitation or
jurisdiction, treat a proceeding under this section as a suit or a suit D
as a proceeding and may, if necessary, order payment of any additional
court fees.

(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this
section, be determined by the court. E
Explanation: For the purposes of this section, a plaintiff whose suit
has been dismissed and a defendant against whom a suit has been
dismissed, are parties to the suit."

It will be noticed that under sub-clause (I), all questions arising between
the parties to the suit in which the decree was passed, or their representatives,
F
and relating to the execution, discharge or satisfaction of the decree, shall
have to be determined by the Court executing the decree and not by a
separate suit.

The High Court observed: "Reading of the entire plaint would show that G
plaintiff claimed a decree for possession by "virtually" praying to enforce the
order of ejectrnent and on the basis of the plea of defendant being a tenant
in the premises by virtue of a fresh contract of tenancy". This view, in our
opinion, cannot be accepted. The plaint states in para 8 as follows:

"That the defendant did not care to pay any rent of the said quarters H
350 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

to the plaintiff taking undue advantage of the plaintiffs absence from
Simla because the plaintiff was in Government service in Maharashtra
State. The plaintiff initiated proceedings for ejectment ofthe defendant
from the said quarters under section 13 of the East Punjab Act No.III
of 1949, on the ground of non-payment of rent in respect of the said
quarters before the Learned Rent Controller, Simla and in the said
B proceedings the defendant has set up a false and frivolous plea of
· ownership of the said quarters by adverse possession. The plaintiff
has, therefore, thought it advisable to file a suit for possession of the
said quarters by ejectment of the defendant therefrom, whose
occupation thereoftill 13-11-1958 is established as a tenant therein by
c judicial findings which are binding on the defendant."

The defendant admitted in para 8 of his written statement in the present
suit as follows:

"para 8 of the plaint is also emphatically denied except the pendency
D · of the ejectment proceedings and the reply submitted thereto by the
replying defendant".

From the aforesaid averments in para 8 of the plaint, it is obvious that
the plaintiff referred to the fresh eviction case filed by Mr. Chopra in 1969 the
present plaintiff, after the legal notice dated 24. 7 .1969. It was in that fresh rent
E control case that the respondent filed a counter stating that he was the owner
of these four quarters and that he had prescribed title by adverse possession.
This plea of the plaintiff was indeed admitted in para 8 of the present written
statement. Thus, the present suit is not one for execution of the eviction order
passed in the first rent control case.

F In our view, the High Court was, therefore, wrong in treating the present
suit as one 'virtually' for execution of the order· of eyiction passed in the
earlier rent control case. Hence the ban under section 47 cannot apply. Point
3 is decided in favour of the appellant.

PO/NT4:
G
This point is crucial to the case. Now, if a suit for possession is decreed
and the decree-holder gets possession and thereafter there is a fresh
dispossession, there is no difficulty in holding that a fresh suit is maintainable
for ejectment, because the fresh trespass creates a fresh cause of action. This
principle is stated in Dhanraj Singh and Ors. v. Mt. Lakrani Kuar, AIR ( 1916)
H All. 163 referred to by the learned Single Judge in the judgment under appeal.
AJIT CHOPRA v. SADHU RAM [M. JAGANNADHA RAO, J.] 351

But that is not the only situation in which it can be said there will be a fresh A
cause of action. There can be other situations where a fresh cause of action
arises.

Where an earlier decree based on title for ejectment is not executed in
time but a fresh suit is however filed on the same basis against the same
defendant for ejectment relying on the earlier judgment, it has been held that B
a second suit does not lie. This is based on the principle that no second suit
lies merely on the basis of an earlier judgment if the time for execution of
the earlier decree has become barred. The cases relied up by the High Court
in Ramanand and Ors. v. Jai Ram and Ors., AIR (1921) All. 369, Sovani Jena
v. Bhima Ray, AIR (1922) Pat. 407, Mal Singh Bika Singh and Ors. v. C
Mohinder Singh Mehar Singh, AIR (1970) P & H 509 belong to this category.
But, in the present case, they are distinguishable. The plaint before us is not
, based on the decree obtained in the first eviction case filed under the Rent
Control law. We may add that Chhagan Lal v. The Indian Iron and Steel Co.
and Ors., AIR ( 1979) Cal. 160 also belongs to this category.
D
We shall next tum to cases more directly in point. These are where the
earlier suit is based on the relationship of landlord and tenant and the latter
suit is based on title. In Kutti Ali v. Chindan and Anr. (1900) ILR 23 Mad.
629, the earlier suit of 1890 was brought by the landlord against the defendant,
on the basis of a lease. The decree was allowed to become time barred as
no execution petition was filed within 3 years. A fresh suit was filed in 1898 E
on the basis of title for eviction The Division Bench held: "The defendants
being tenants in 1890 cannot have acquired a prescriptive title in 1898 when
this suit was brought. The plaintiff is, therefore, entitled to recover the land
upon his title independently of any letting by him". Omission to sue on title
in the earlier suit was not (constructive) res judicata.
F
This judgment, in ~utti Ali unfortunately, suffered several ups and
downs. In a Full Bench of five Judges in Vedapuratti v. Vallabha Valiya Raja
and Ors .. (1902) ILR 25 Mad 300, the above case was held to be wrongly
decided. In that case the first suit for redemption of a mortgage was decreed
but execution got barred by time and a second suit for redemption was held G
not maintainable. Then came Mayankutti v. Kunhammad and Ors., (1918 ILR
41 Mad. 641 (a case relied upon in the judgment of the High Court now in
appeal before us). There the plaintiffs father had sued the defendant on a
lease deed and obtained a decree for possession directing payment of
compensation under the Malabar Compensation for Tenants Improvements
Act. The execution got barred by time and then a fresh suit was filed on the H
352 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A genuine title. The suit was held barred following the Full Bench in Vedapuratti
and dissenting from Kutti Ali. One peculiar feature of this case which makes
it distinguishable is that the Malabar Act Section 5 stated that,
notwithstanding, the determination of the tenancy, the tenant was entitled
to remain in possession until evicted in execution of the decree and Section
B 6(4) stated that every matter arising under Section 3 was to be deemed to
relate to execution. That would mean the statutory tenancy continued even
after the eviction order till the compensation· for improvement was paid to
the tenant.

But after Raghunath Singh and Ors. v. Hansraj Kunwar and Ors. (1934)
C ILR 56 All. 561 was decided by the Privy Council, Vedapuratti stood
impliedly overruled. Their Lordships held in that case that when execution
of a decree for redemption was allowed to get barred, a fresh suit would lie.
The important principle laid down by Lord Russell of Killowen in regard to
the right to redeem was that the "right was not barred by res judicata". It
meant that the Full Bench case in Vedapuratti which overruled Kutti Ali was
D no longer good law. This position became clear when a similar question
arose before a Full Bench of the Madras High Court in Viroopakshan v.
Chambu Nayar and Ors,. (1937) ILR Mad. 545. That was again a case of a
second suit for redemption, the execution in the first suit having become
barred. Varadachariar J (as he then was), after referring to the decision of the
E Privy council observed that the Full Bench decision in Vedapuratti was no
longer good law and a second suit lay "unless ....... the right of redemption
has been extinguished in one of the modes contemplated by the statutes and
that the mere fact that a decree for redemption obtained on a former occasion
has not been executed will not prevent the mortgagor from maintaining a
subsequent suit for recjemption". The result was that with the overruling of
F Vedapuratti, the decision in Kutti Ali revived. To the extent Mayankutti v.
Kunhammad, (1917) ILR 41 Mad 641 (which was relied upon by the High
Court in the judgment under appeal before us) dissented from Kutti Ali, the
said dissent would therefore no longer hold good. That is how, Kutti Ali still
remains and governs the situation on the facts before us.
G The facts before us are again similar to those in Amina v. Ahmad,
(1949) I MLJ 465. That decision is similar to Kutti Ali and the said ruling
was followed. There the first suit was for eviction solely based on tenancy
and the execution was allowed to become time bared as in the case before
us. The second suit for eviction based on title was held maintainable and
H not barred. Satyanarayana Rao, J. observed: .
AJIT CHOPRA v. SADHU RAM [M. JAGANNADHA RAO, J:J 353
"On the principle of the decision in Kutti Ali v. Chindan, I think that A
the second suit based on title is not barred ..... A suit based on tenancy
is very narrow in its scope and it is unnecessary very often for the
plaintiff landlord to plead his title; it is enough for him in such a suit
to pro~e the lease and the tenancy and that it was validly terminated."

In that case too, the fresh suit was filed within 12 years from the date fixed B
in the earlier compromise decree. The possession during the period granted
under the compromise was treated as permissive.

A similar situation arose again in Madhavan Variar v. Chathu Nambiar,
(1950) 2 MLJ 501 before Satyanarayana Rao and Viswanatha Sastri, JJ. They C
observed (p.504) that "as the cause of action in the present suit was different
from the cause of action in the earlier suit, the decision in Mayan Kutti v.
Kunhammad, had no application".

In our view, the decision in Kutti Ali and in Amina are directly in point
and are correctly decided. Both relate to an earlier suit based on a lease when D
the execution of the decree was time barred and the second 'Suit was based
on title. The second suit was held neither barred by section 4 7 CPC nor by
section 11 CPC. so· far as mortgage cases are concerned, the position stood
settled long back by the decision of the Privy Council in Raghunath Singh' s
case as explained in the Full Bench in Viroopakshan. In fact, this Court E
approved the Privy Council judgment in Raghunath Singh and held that a
second suit for redemption was maintainable even if the -eai'lier decree for
redemption stood barred by limitation. (see Mhadaagonda Ramgonda Patil
and Ors. v. Shripa/ Ba/want Rainade and Ors., [ 1988} 3 SCC 298; Magan/al
v. Jaiswal Industries, Neemach and Ors., [1989] 4 SCC 344 and Harbans
Singh and Anr. v. Guran Ditta Singh and Anr., (1991] 2 SCC 523. We, F
accordingly hold on the above line of cases that the present suit is not barred
by Section 11 or Section 4 7 of the Code of Civil Procedure.

We have, in the above discussion, covered all the cases referred to by
the High Court in the judgment under appeal except one, namely, Dinu Yesu
Desai v. Shripad Baji Carware, AIR (1919) Born. 34. That case, in our view, G
:::io>· is clearly distinguishable because in the first decree for redemption which
stood barred by time for execution purposes, it was also stated that the
plaintiff's "right to redeem shall be forever barred". In fact, in that case, on
that ground the High Court distinguished Ramji v. Pandharinath, (1918) ILR
43 Born 334 SB where there was no such clause. In Ramji, second suit for H
354 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R .

. A redemption was held maintainable as in the Privy Council case and Vedapuratti
of the Madras High Court was clearly dissented. Hence Dinu Yesu Desai is
clearly distinguishable and does not apply. In principle, if the second suit in
redemption cases is· maintainable "unless the right to redeem itself stood
barred', on the same parity of reasoning, the second suit on title (where the
B earlier decree on lease stood barred) would be maintainable "unless the title
itself stood barred'.

As stated under Point 2, the second suit on title was filed on 5.8.70
within 12 years of the commencement of the adverse possession on 19.12.58
i.e. before 19.12.70. The High Court was in error in holding the suit was not
C maintainable.

The· result is a judgment and decree, which was passed in a previous
suit under the Rent Control Act by which it was held that respondent was
tenant and that he was required to vacate the premises on or before 19.12.1958,
would not bar a fresh suit for recovery of possession from a tenant. Reason
D being that the tenant has not acquired title over the property by adverse ·
possession.' It is true that the appellant could have executed the decree
passed in the said suit. He had not executed the same on the alleged ground
that there was a fresh agreement of tenancy. Whatever may be the position,
after lapse of three years it was not open to the appellant to file an application
E for executing the said decree under the Limitation Act, 1908. Still there is
no bar under the Rent Act or under the Limitation Act, 1908. Still there is
no bar under the Rent Act or under the Code of Civil Procedure for filing
a suit for recovery of possession from the tenant, who had failed to deliver
the possession on the basis of a decree passed against him. Unless, the
defendant - tenant establishes that he has become owner of the suit property
F by adverse possession, the suit filed by the owner on the basis of his title
cannot be dismissed despite the fact that application for the execution of the
decree passed under the Rent Act was barred after lapse of three years. The
title of the plaintiff over the suit property was not extinguished (i) by the
act of the parties including adverse possession, (ii) by the decree of the Court
G or (iii) by not executing the decree which was passed in a previous suit. If
there is any agreement between the parties after passing of the decree,
permitting the tenant to continue in the premises, he may either be a tenant, ....
licensee or. a trespasser. Presuming that no fresh tenancy was created or
license was granted then also respondent has failed to acquire title by adverse
possession on the date of the suit i.e. 5.8.1970, because as per the decree he
H was entitled to occupy the premises up to 19.12.1958 as a tenant. By lapse
AJIT CHOPRA v. SADHU RAM [M. JAGANNADHA RAO, J.) 355
of time, plaintiff has lost right to execute the previous decree as it became A
time-barred bl!t has not lost the title. Unless the title is extinguished, second
suit by the owner if filed within period of limitation is not barred.

We allow the appeal and restore the decree of the eviction as granted
by the trial Court and as affirmed ,by the first appellate Court. There will be
no order as to costs in this appeal. B

A.K.T. Appeal allowed.