Supreme Court of India
BISWANATH AGARWALLAversusSABITRI BERA & ORS.
- Citation
- 2009 INSC 1012
- Decided
- 4 August 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The Supreme Court held that the issue of whether the defendant was a trespasser must be framed, and the High Court erred in not formulating substantial questions of law; the suit must be amended to seek eviction on the trespass ground.
Summary
The respondents filed a title suit for eviction of the appellant, claiming ownership and landlord status over a shop in Purulia. The appellant denied being a tenant, asserting that he entered possession under a sale agreement and later pleaded adverse possession, claiming over twelve years of possession. The trial court dismissed the suit for lack of proof of tenancy; the first appellate court decreed in favour of the respondents on the basis of their general title, and the High Court upheld this, treating the appellant as a trespasser without framing the issue of trespass. The Supreme Court held that the question of whether the appellant was a trespasser must be framed as an issue and that the High Court failed to formulate substantial questions of law, thereby prejudicing the appellant. Consequently, the Court directed the respondents to amend the plaint to seek eviction on the ground of trespass, to pay the appropriate court fee, and instructed the trial judge to frame the appropriate issue and dispose of the suit expeditiously. The appeals were allowed with these directions.
Issues considered
- Whether a civil court can pass a decree for eviction on the ground that the defendant is a trespasser without framing the issue of trespass.
- Whether the High Court was required to formulate substantial questions of law in the second appeal.
- Whether a plaintiff can obtain a decree for eviction solely on the basis of general title without proving a landlord‑tenant relationship.
- Whether the defendant’s plea of adverse possession should have been entertained.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 7
- Court Fees Act, 1870s. 4, s. 7
- Indian Evidence Act, 1872s. 116
- Transfer of Property Act, 1882s. 106
- West Bengal Premises Tenancy Act, 1956
Subjects
evictiontrespasslandlord‑tenant relationshipadverse possessionissue framingsubstantial question of lawamendment of plaintArticle 142Transfer of Property ActWest Bengal Premises Tenancy Act
Judgment
[2009] 12 S.C.R. 459
""-- BISWANATH AGARWALLA A
V.
SABITRI BERA & ORS.
(Civil Appeal No. 5085 of 2009 etc.)
AUGUST 4, 2009.
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]
Suit - Suit for eviction - Defendant claiming to be put in
+
possession of suit property by predecessor-in-interest of
plaintiff by virtue of sale - Defendant also taking plea of c
adverse possession before appellate court - Suit dismissed
by trial court on the ground that tenancy not proved - Decreed
by first appellate court on the basis of general title of plaintiff
- In second appeal, substantial question of law not framed -
. Suit decreed holding that defendant was trespasser - No
issue as regards trespass was framed - On appeal, held:
Issue as regards trespass was required to be framed - Non-
D
framing of the issue prejudiced the defendant - High Court
was also required to frame substantial question of Law -
Direction issued to plaintiff to amend the plaint seeking E
eviction on the ground of trespass - Constitution of India,
1950 - Article 142.
Respondent No. 1 filed a title suit inter alia praying
for eviction of the appellant from the suit premises
claiming to be owners and landlords of the suit premises. F
Appellant denied his tenancy and claimed that he was put
in possession of the suit property, by the predecessor-
in-interest of the plaintiff-respondent, by virtue of sale.
Trial Court held that though plaintiff had proved his
ownership and defendant failed to prove his ownership, G
+
but as the plaintiffs failed to prove the tenancy, they were
not entitled to decree. First appellate court decreed the
suit on the basis of general title of the plaintiffs. High
Court, in second appeal decided in favour of the plaintiffs
453 H
460 SUPREME COURT REPORTS [2009] 12 S.C.R.
A on the ground that the defendant was a trespasser. No
issue was framed by trial court in that regard.
In appeal to this Court, it was contended inter alia
that no substantial questions of law were formulated by
High Court.
B
Allowing the appeals, the Court
Held: 1.1. An issue as to whether the defendant was
a trespasser or not, was required to be framed. It is not, +
c a case where by non-framing of an issue as to whether
the defendant-appellant was a trespasser or not, he was
not prejudiced. Had such an issue been framed, he could
have brought on record evidence to establish that he had
the requisite animus possidendi, particularly in view of the
D fact that it has been held by the courts below that he was
not put in possession by the predecessor-in-interest of
the plaintiffs in terms of an agreement for sale or
otherwise. If he has not been able to prove the agreement,
he could have taken the other plea, i.e., he has acquired
indefeasible title by adverse possession. He is said to
E
have been in possession of the suit premises for more
than twelve years prior to the institution of the suit. The
question as to whether he acquired title by adverse _.
possession was a plausible plea. He, in fact, raised the
same before the appellate court. [Paras 20] [476-A-D]
F
1.2. In terms of West Bengal Premises Tenancy Act,
1956, the tenant upon termination of tenancy does not
become a trespasser. He becomes a statutory tenant
(loosely called). When, however, a defendant is a
G trespasser and is sued as such, the situation would be
totally different. Plaintiff must file a suit having regard to
the cause of action thereof. [Para 19] [475-F-G]
Gautam Sarup v. Leela Jetty and Ors. (2008) 7 SCC 85;
H
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 461
""- Bhagwati Prasad v. Shri Chandramaul (1966) 2 SCR 286; A
Shri Ram and Anr. vs. Smt. Kasturi Devi and Anr. AIR 1984
Allahabad 66; Hajee Go/am Hossain Ostagar vs. Sheik Abu
Bakkar AIR 1936 Calcutta 351, referred to
1.3. The landlord in a given case although may not 8
be able to prove the relationship of landlord and tenant,
but in the event he proves his general title, may obtain a
decree on the basis thereof. But in a case of this nature,
+ as in the present case, a defendant was entitled to raise
a contention that he had acquired an indefeasible title by C
adverse possession. [Para 17] [470-F-G]
Radha Devi and Ors. v. Ajay Kumar Sinha 1998 (2)
BLJR 1061; Champa Lal Sharma v. Smt. Sunita Maitra
(1990) 1 BLJR 268; Deepak Kumar Verma and Ors. v. Ram
Swarup Singh 1992 (1) BLJR 102, referred to. D
2. The High Court while determining the issues
involved in the second appeal should have formulated
questions of law. [Para 22] [476-F]
Dharam Singh vs. Kamai/ Singh and Ors. (2008) 9 s·cc E
759; Koppisetty Venkat Ratnam (0) through LRs. v. Pamarti
Venkayamma (2009) 4 SCC 244, relied on.
*
3. Keeping in view the peculiar facts and
circumstances of this case ancl as the plaintiffs have filed F
the suit as far back in the year 1990, this Court in exercise
of its jurisdiction under Article 142 of the Constitution of
India directs the plaintiffs to file an application for grant
of leave to amend his plaint so as to enable him to pray
for a decree for eviction of the defendant on the ground G
+ that he is a trespasser, and pay the requisite court fee.
The trial judge is directed to frame an appropriate issue
and the parties would be entitled to adduce any other or
further evidence on such issue. [Para 23] [477-E-H; 478-
A-B]
H
462 SUPREME COURT REPORTS [2009] 12 S.C.R.
. .Jr
A Case Law Reference:
1998 (2) BLJR 1061 referred to. Para 17
(1990) 1 BLJR 268 referred to. Para 17
1992 (1) BLJR 102 referred to. Para 17
B
(2008) 1 sec 85 referred to. Para 17
(1966)2 SCR 286 referred to. Para 18
+
AIR 1984 Allahabad 66 referred to. Para 18
c
AIR 1936 Calcutta 351 referred to. Para 19
(2008) 9 sec 759 relied on. Para 22
(2009) 4 sec 244 relied on. Para 22
D CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5085 of 2009.
From the Judgment & Order dated 17.08.2006 of the High
Court at Calcutta in C.O.A. No. 253 of 2006 in R.V.W. No. 2671
E of 2004 in Second Appeal No. 675 of 1996.
WITH
C.A. No. 5086 of 2009.
F V. Prabhakar, Ashoke K. Sadhu Khan, Revathy Raghavan
for the Appellants.
R.K. Gupta, S.K. Gupta, Arun Yadav, Shekhar Kumar for
the Respondents.
G The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. Whether a Civil Court can pass a decree on the ground
H
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 463
[S.B. SINHA, J.]
-+--.. that the defendant is a trespasser in a simple suit for eviction A
is the question involved in this. appeal.
It arises Qui Qf a judgment and order dated 17th August,
20Qq !J?§§ed by a learned single judge of the Calcutta High
Qeurt in C.O.A. No. 253 of 2006 in RWV No. 2671 of 1996. B
3. The suit premises is a shop situate in a small town
commonly known as Raghunathpur in the district of Purulia.
Appellant herein is said to have entered into possession of the
+-
suit premises in the year 1970. Originally, he claimed to have
come into possession in the said premises pursuant to or in c
furtherance of an agreement for sale entered Into on or about
18th March, 1970 by and betw~en him and S.K. Abdul Wahid
Molla, the father of $9fi~ur Rahaman.
• The respondents purchased the suit premises from Safiqur D
.. Rahaman on 21st July, 1980 by three re9i~tered deeds of sale .
4. Indisputably, th@ ff:!Spondent No.1 filed a ~ult being Title
Suit No,§El, gf 1990 in the Court of MYrmlt Raghunathpur, District
13µ,rulia (We~t. B~n~e\) ioteF- ali_GI praying for eviction of the
aP,p~l\~\1t fl'~m the $.Yit pr-emises and mesne profit claiming E
themse!Ves to be the owners and landlorgs thereof.
-<I:
He prior to institution of the suit also served a notice upon
the appellant in terms of Section 106 of the Transfer of Property
Act asking him to handover peaceful and vacant possession F
alleging that he had been a tenant therein on a monthly rental
of Rs.45/- under his vendor Safiqur Rahaman.
5. Appellant denied and disputed that he had ever been a
tenant of Safiqur Rahaman at any point of time. The relationship
.... between them was, thus, denied and disputed . G
6. The learned trial judge having regard to the rival
pleadings of the parties framed the following issues:
"(1) Have the plaintiffs any cause of action to bring this H
464 SUPREME COURT REPORTS [2009] 12 S.C.R.
A suit? k
(2) Is the suit maintainable in its present form?
(3) Is the suit barred by law of limitation?
B (4) Is the suit barred by provisions of the S.R. Act?
(5) Is the suit barred by the principle of waiver, estoppel
and acquiescence?
+
(6) Have the plaintiffs landlord and tenant relationship
c with the defendant?
(7) Have the plaintiffs served valid notice u/s 106 of the
T.P. Act?
(8) Have the plaintiffs right, title and interest in the suit
D
property?
(9) Are the plaintiffs entitled to get the decree as prayed
for?
E (10) To what other reliefs, if any are the plaintiffs entitled?
The learned trial judge opined:
i. The plaintiffs have proved to be the owner of the suit
property having purchased the same from the
F admitted owner S.K. Abdul Wahid Molla;
ii. The defendant has failed to prove his independent
title over the suit property.
iii. The plaintiffs have failed to prove the relationship
G of landlord and tenant in between the plaintiffs and
the defendant
iv. The plaintiffs having failed to prove the tenancy are
not entitled to a decree.
H
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 465
[S.B. SINHA, J.]
"+-. 7. The respondent No.1 preferred an appeal thereagainst A
marked as Title Appeal No. 20/1993. By a judgment and order
dated 31st May, 1995, the learned Appellate Court held that
although the plaintiffs have failed to prove the relationship of
landlord and tenant by and between them and the defendant
or that the defendant had been let into the tenanted premises B
on leave and license basis, the plaintiffs - respondents are
entitled to a decree for possession on the basis of his general
title.
-+
8. The learned First Appellate Court also rejected the C
appellant's contention that he has acquired title by adverse
possession.
It was held:
"It is needless to mention the learned Munsif of the court o
below in the _body of the judgment, at the time of discussion
(page 20 begins) issue nos. 6 and 8 on being satisfied
by the plaintiffs chain of documents of their title over the
suit premises and in such a position, the plaintiffs were
entitled to get the decree for recovery of possession as E
owner of the suit premises and in this regard decision so
referred by the learned lawyer of the appellants as reported
in AIR 1984 ROC 78 Allahabad page A 35, and other
decision so reported in AIR 1984 Allahabad page 66
completely on the flat point of the suit in favour of the F
plaintiffs and where it has been clearly stated in a suit for
eviction by the plaintiffs against the defendant under the
relevant provision of Transfer of Property Act where title
of the plaintiffs over the suit property being proved and the
relationship of landlord and tenant not proved, in spite of
the same, the plaintiffs or proving the landlords title are G
entitled to get recovery of possession of the suit premises
from the defendant as owner thereof and what in fact,
happened in the given facts and circumstances, out of
which this appeal arose.
H
466 SUPREME COURT REPORTS (2009] 12 S.C.R.
A xxx xxx xxx
for the discussion made above and on the existing
materials on the case record and when the plaintiffs
proved their title and ownership over the suit premises by
virtue of Ext. 4 series and on the other hand the defendant
B
as per their written statement failed and neglected to
discharge his onus on proving his right or permanency in
the suit premises as tenant or otherwise, the plaintiffs suit
must succeed and the findings of the learned Munsif in +
deciding the issue Nos. 6 and 8 particularly the contents
c of the issue no. 6 are not at all satisfactory and cannot be
sustained in law in the given facts and circumstances of
the case and as such the irresistible conclusion from the
above discussion is that the judgment and decree so
passed by the Ld. Munsif is not tenable in law and the
D plaintiffs are entitled to get the decree for eviction against
the defendants. As a result, the appeal succeed in part on
contest."
9. By reason of the impugned judgment, the High Court
E dismissed the Second Appeal preferred by the appellant,
opining:
"I am sorry to say that such submission on the part of the
appellant cannot be accepted. A person can be in
possessory right in various ways i.e. licensee/tenant/
F permissible possession holder/ adverse possession
holder/trespasser. But, the onus heavily lies with the tenant
to prove in what capacity he is occupying the premises as
the landlord is not in a position to claim any recovery of
ttie possession as against him since there is no landlord
G and tenant relationship. In the instant case, the schedule
land under the deed of gift and so-called agreement for
sale are different. So far as the execution of Deed of gift
is concerned, it has been sufficiently proved. So far as
payment of rent is concerned, that has been stated in the
H cross-examination. The only failure is about the non-
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 467
[S.B. SINHA, J.)
~ disclosure of the rent receipt. But, simply such statement A
will not develop the case of adverse possessory right of
L
the tenant, which he has claimed now before the second
appellate court. Therefore, when he is not claiming to be
a tenant at best, he can claim as a licensee of the
premises in question whereunder the title of the landlord B
has already been proved by virtue of the document.
Therefore, such licensee is estopped from questioning the
title of the landlord as per Section 116 of the Indian
Evidence Act, 1872. Tenancy is not proved, therefore, he
is not a tenant. He is not claiming to be the licensee c
although he could have, therefore, I cannot compel him to
be licensee. The remaining, if any, is permissive
occupation, which is as good as license. However, it is well
settled that the permissible occupation cannot be regarded
as adverse possessory right. Adverse possession is not
D
proved. Therefore, the remaining capacity, if any, is
trespasser. It is far to say that a trespasser can challenge
the title of the landlord. Under such situation the
presumption, which has been drawn by the lower appellate
court is an appropriate presumption on that score."
E
10. A review application filed thereagainst by the appellant
has also been dismissed by the High court.
Both the aforementioned orders are in question before us.
F
11. MrV, Prabhakar, learned counsel appearing on behalf
of the appellant would contend:
i. No substantial questions of law having been
formulated by the High Court, a jurisdictional error
,,. has been committed by it in passing the impugned
judgment.
G
...
ii. The relationship of landlord and tenant and/or the
licensor and licensee having not been proved, the
High Court as also the First Appellate Court
H
468 SUPREME COURT REPORTS [2009] 12 S.C.R.
A committed a serious error in passing the impugned ~--
judgment on the premise that the appellant was a
trespasser.
12. Mr. R.K. Gupta, learned counsel appearing on behalf
of the respondents, on the other hand, would support the
B
impugned judgment, contending:
i. Even in a suit for eviction, the plaintiffs would be
entitled to obtain a decree for possession relying
+
on or on the basis of his title.
c
ii. In a suit for eviction, it is for the defendant to show
that he has a right to remain on the tenanted
premises either as a permanent tenant or
otherwise.
D 13. The plaintiffs served a notice on the defendant under
Section 106 of the Transfer of Property Act. Such notice
evidently was served on the premise that the defendant -
appellant was his tenant. He denied and disputed the same .
•
The plaintiff in his plaint disclosed the cause of action for the
E suit having arisen on and from 1st October, 1990 from which
date the monthly tenancy had ceased to exist. The plaintiff
prayed for grant of mesne profits at the rate of Rs.3/- for each
day for wrongful occupation of the premise as after the
termination of tenancy the defendant was to be treated as a
F trespasser.
14. Paragraph 10 of the plaint reads as under:
"10. That for the purpose of jurisdiction and court fee the
value of this suit for prayer (A) is laid at Rs. (sic) For eviction
G a tentative court fee of Rs.100/- is paid for future mesne 't
profits to a decree."
"
How much court fee was paid and on what basis has not
been disclosed.
H
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 469
-. [S.B. SINHA, J.]
-1~
The reliefs prayed for by the plaintiffs are: A
"(a) A decree for eviction of the defendant from the
schedule premises, be passed against the defendants.
(b) A decree for mesne profits in case eviction is allowed,
at the rate of Rs.3/- per day from (sic) be passed against B
the defendants as scheduled in schedule-II and Ill below
and for future mesne profits uptil delivery of possession of
suit property at the rate the court is pleased to order for
which tentative court fee is paid at present."
c
15. It is not clear what amount of court fee was paid.
Presumably, the court fee was paid of one year's rent that is
calculated on the basis of twelve months' rent at the rate of
Rs.45/- in terms of Section 7(xi)(cc) of the Court Fees' Act,
1870.
_. D
Section 4 of the Court Fees' Act, 1870 reads as under:
"4. Fees on documents filed, etc., in High Courts in their
extraordinary jurisdiction;- No document of any of the kinds
specified in the First or Second Schedule to this Act E
annexed, as chargeable with fees, shall be filed, exhibited
-"'( or recorded in, or shall be received or furnished by, any of
the said High Courts in any case coming before such Court
in the exercise of its extraordinary original civil jurisdiction;
or in the exercise of its extraordinary original criminal F
jurisdiction;
in their appellate jurisdiction; - or in the exercise of
its jurisdiction as regards appeals from the judgments
(other than judgments passed in the exercise of the
~ G
ordinary original civil jurisdiction of the Court) of one or
more Judges of the said Court, or of a division Court;
or in the exercise of its jurisdiction as regards
appeals from the Courts subject to its superintendence;
H
470 SUPREME COURT REPORTS [2009] 12 S.C.R.
A as Courts of reference and revision. - or in the
exercise of its jurisdiction as a Court of reference or
revision'
unless in respect of such document there be paid a
fee of an amount not less than that indicated by either of
B
the said Schedules as the proper fee for such document."
For obtaining a decree for recovery of possession, court
fees are required to be paid in terms of Section 7(v) of the Court
Fees' Act, 1870 i.e., according to the value of the subject matter
C of the suit.
16. We will have to proceed on the basis that wh1;;reas the
plaintiff proved his title, the defendant coultl not. The learned
trial judge has held that the defendant could not prove the
o agreement of sale.
The High Court formulated the following points in the form
of question which are as under:
"6. Have the plaintiffs landlord and tenant relationship with
E the defendant?
7. Have the plaintiffs seNed valid notice u/s 106 of the T.P.
Act."
17. Was, in the aforementioned situation, a suit for recovery
F of possession maintainable is the question.
The landlord in a given case although may not be able to
prove the relationship of landlord and tenant, but in the event
he proves his general title, may obtain a decree on the basis
G thereof. But in a case of this nature, a defendant was entitled
to raise a contention that he had acquired an indefeasible title
by adverse possession.
In Radha Devi and Ors. v. Ajay Kumar Sinha [1998 (2)
BLJR 1061], the Patna High Court accepted that a landlord is
H
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 471
[S.B. SINHA, J.]
entitled to obtain a decree of eviction on the basis of his A
general title, though he could not prove the re:ationship of
landlord and tenant. It was opined:
"... In other words, where there is relationship of landlord
and tenant, order of eviction be passed on the existence
8
of any one of the grounds mentioned in Section 11 of the
said Act. It is, therefore, clear that proof of relationship of
landlord and tenant gives right to a landlord to get an order
of eviction under the provisions of the aforesaid Act. .. "
In Champa Lal Sharma v. Smt. Sunita Maitra [(1990) 1 C
BLJR 268], it was held:
"It is also well settled that one such relationship is admitted
or established, tenant would be estopped and precluded
from challenging the title of the landlord and if he does so, 0
_.. under the general rule, make himself liaole for eviction on
that ground.
It, therefore, logically follows that a finding of existence of
relationship of landlord and tenant is a sme qua non for
passing a decree for eviction against a tenant except in a E
case, as mentioned hereinbefore the plaintiff on payment
of ad valorem Court fee may obtain a decree for eviction
on the basis of his general title.
*** *** *** F
It is, therefore, evident that the court has to ultimately
decide the question as to whether the plaintiff in case his
title is in dispute, would be entitled to withdraw the rent so
deposited by the tenant or not. It, therefore, makes the
--r position, in my opinion, absolutely clear that before, the G
said question is decided finally so as to enable the court
to come to a decision whether the plaintiff landlord is
entitled to a decree for eviction or not must come to the
finding that there exists a relationship of landlord and
tenant by and between the plaintiff and the defendant, if H
472 SUPREME COURT REPORTS (2009] 12 S.C.R.
A such an issue is raised. In absence of any such finding the ....
court will have no jurisdiction to pass a decree of evidence
as against the defendant in such a suit."
[See also Deepak Kumar Verma and Ors. v. Ram
Swarup Singh 1992 (1) BLJR 102]
B
A defendant as is well known may raise inconsistent pleas
so long they are not mutually destructive.
In Gautam Sarup v. Leela Jetty and Ors. [(2008) 7 SCC
c 85], this Court held:
"22. What, therefore, emerges from the discussions made
hereinbefore is that a categorical admission cannot be
resiled from but, in a given case, it may be explained or
clarified. Offering explanation in regard to an admission
D or explaining away the same, however, would depend upon
the nature and character thereof. It may be that a defendant
•
is entitled to take an alternative plea. Such alternative
pleas, however, cannot be mutually destructive of each
other."
E
An issue as to whether the defendant was a trespasser
or not, thus, was required to be framed.
)-
18. Mr. Gupta, however, would rely upon a decision of this
Court in Bhagwati Prasad v. Shri Chandramau/ [(1966) 2 SCR
F
286]. Gajendragadkar, C.J. therein was dealing with the rules
of pleadings. It was opined that although the rules of pleadings
should be adhered to; when parties go to the trial knowing fully
well the points he is required to meet, the Court may not insist
on the strict application thereof, stating:
G y
"When Mr. Setalvad was pressing his point about the
prejudice to the defendant and the impropriety of the
course adopted by the High Court in confirming the decree
for ejectment on the ground of licence, we asked him
H whether he could suggest to us any other possible plea
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 473
[S.B. SINHA, J.]
-f, which the defendant could have taken if a licence was A
expressly pleaded by the plaintiff in the a/te1, 1ative. The
only answer which Mr. Setalvad made was that in the
•
absence of definite instructions, it would not be possible
for him to suggest any such plea. In our opinion, having
regard to the pleas taken by the defendant in his written B
statement in clear and unambiguous lang·uage, only two
issues could arise between the parties : is the defendant
the tenant of the plaintiff, or is he holding the property as
the licence subject to the terms specified by the written
statement? In effect, the written statement pleaded licence, c
subject to the condition that the licence was to remain in
possession until the amount spent by him was returned by
the plaintiff. This latter plea has been rejected, while the
admission about the permissive character of the
defendant's possession remains. That is how the High
D
Court has looked at the matter and we are unable to see
"" any error of law in the approach by the High Court in
dealing with it.
In support of its conclusion that in a case like the
present a decree for ejectment can be passed in favour E
of the plaintiff, though the specific case of tenancy set up
by him is not proved, the High Court has relied upon the
two of its earlier Full Bench decisions. In Abdul Ghani v.
Musammat Babni l.L.R. 25 All. 256 the Allahabad High
Court took the view that in a case where the plaintiff asks F
for the ejectment of the defendant on the ground that the
defendant is a tenant of the premises, a decree for
ejectment can be passed even though tenancy is not
proved, provided it is established that the possession of
the defendant is that of a licensee. It is true that in that G
'i
case, before giving effect to the finding that the defendant
was a licensee, the High Court remanded the case,
because it appeared to the High Court that that part of the
case had not been clearly decided. But once the finding
was returned that the defendant was in possession as a H
474 SUPREME COURT REPORTS [2009] 12 S.C.R.
A licensee, the High Court did not feel any difficulty in
,...
confirming the decree for ejectment, even though the
plaintiff had originally claimed ejectment on the ground of
tenancy and not specifically on the ground of licence. To
the same effect is the decision of the Allahabad High Court
B in the case of Balmakund v. Daiu I.LR. 25 All. 498"
(Emphasis supplied).
The said decision itself is an authority for the proposition
that it was necessary to bring on record some evidence that
c the defendant was a licensee and he could not have raised any
other alternative plea. It was followed by a learned Single Judge
of the Allahabad High Court in Shri Ram & Anr. vs. Smt.
Kasturi Devi & Anr. [AIR 1984 Allahabad 66]. stating:
D "15. Lastly, it was argued for the appellants that there is
no relationship of landlord and tenant as between Smt.
Kastoori Devi on the one hand and Sri Ram or Satya Pal.
on the other. The trial court was of the view that no such
relationship has been made out. This finding was,
however, reversed by the lower appellate court and not
E
without cogent basis. Sri Ram admits that one Desh Rai
was the tenant in this part of the house who vacated. Sri
Ram thereafter came in the said portion of the house. In ....
cross-examination, he admitted also that it was agreed
between him and Smt Kastoori Devi what would be treated
F as the rent for the said portion. Further the case of the
appellants is that on January 20. 1970, Sri Ram got this
portion allotted in his name. All these are pointers in the
direction that there was relationship of landlord and tenant
and not that Sri Ram has been residing in that portion of
G the house as licencee of Smt. Kastoori Devi. This apart ,,_
the suit for eviction brought by Smt. Kastoori Devi against
them does not fail even if it is assumed that there was
no relationship of landlord or of tenant or that Sri Ram
was in the position of a mere licensee. The licence has
H been determined by registered notice given by Smt.
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 475
[S.B. SINHA, J.]
~- Kastoori Devi already. In the plaint. Smt. Kastoori Devi A
referred expressly to her title to the house by virtue of the
will executed in her favour by the husband. The law is
settled that even if Sri Ram was the licensee, Smt.
Kastoori Devi can, on the basis of title claim eviction even
though she has set up the case that there was the B
relationship of the landlord and tenant and assumed that
the same is not established, vide Bhagwati Pd. v.
Chandramau/ AIR 1966 SC 735. Abdul Ghani v. Mst.
Babni (1903) ILR 25 All 256 (FB) Ba/ Mukund v. Datu
(1903) ILR 25 All 498 (FB)." c
(Emphasis supplied)
19. Mr. Gupta would further rely upon a decision of the
Calcutta High Court in Hajee Go/am Hossain Ostagar vs.
Sheik Abu Bakkar[AIR 1936 Calcutta 351] to contend that the D
. defendant in a suit for ejectment was bound to show that he
had a right to remain on a land permanently wherefor the onus
would be on him. That c'ase related to a agricultural tenancy. A
simple tenancy can be terminated by service of notice under
Section 106 of the Transfer of Property Act. Once a valid notice E
is served, the tenant becomes trespasser.
~ The situation, however, has undergone a sea change after
almost all the States have enacted the premises tenancy Acts
governing the conditions of tenancy in respect of house
F
premises. The State of West Bengal has also enacted the West
Bengal Premises Tenancy Act, 1956.
In terms of the 1956 Act, the tenant upon termination of
tenancy does not become a trespasser. He becomes a
statutory tenant (loosely called). G
'"i·.
When, however, a defendant is a trespasser and is sued
as such, the situation would be totally different. Plaintiff must
file a suit having regard to the cause of action thereof. The
Court, in a given case, mould the relief having regard to the
H
476 SUPREME COURT REPORTS [2009] 12 S.C.R.
A provisions of Order VII Rule 7 of the Code of Civil Procedure,
but the said provision cannot be applied in a situation of this
nature.
20. We, therefore, are of the opinion that it is not a case
where by non framing of an issue as to whether the defendant
8
- appellant was a trespasser or not he was not prejudiced. Had
such an issue been framed he could have brought on record
evidence to establish that he had the requisite animus
possidendi, particularly in view of the fact that it has been held -+-
by the courts below that he was not put in possession by the
C predecessor-in-interest of the plaintiffs in terms of an agreement
for sale or otherwise. If he has not been able to prove the
agreement, he could have taken the other plea, i.e., he has
acquired indefeasible title by adverse possession. He is said
to have been in possession of the suit premises for more than
D twelve years prior to the institution of the suit. The question as .,
to whether he acquired title by adverse possession was a
plausible plea. He, in fact, raised the same before the appellate
court.
E 21. Submission before the First Appellate Court by the
defendant that he had acquired title by adverse possession
was merely argumentative in nature as neither there was a
pleading nor there was an issue. The learned trial court had no
occasion to go into the said question.
F 22. We, therefore, are of the opinion that in a case of this
nature an issue was required to be framed. Furthermore, the
High Court while determining the issues involved in the Second
Appeal shoU!ld have formulated questions of law.
G In Oharam Singh vs. Kamai/ Singh & Ors. [(2008) 9 SCC .,-
759), this Court held:
"6. In response, learned Counsel for the respondents
submitted that on considering the memorandum of appeal
and the grounds indicated therein, the High Court had
H
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 477
[S.B. SINHA, J.]
allowed the second appeal and, therefore, there was A
nothing wrong. It is stated that after considering the
materials on record, the High Court had recorded its
findings that the suit deserves to be dismissed.
xxx xxx xxx B
9. A perusal of the impugned judgment passed by the High
Court does not show that any substantial question of law
has been formulated or that the second appeal was heard
on the question, if any, so formulated. That being so, the
judgment cannot be maintained. C
xxx xxx xxx
15. Under the circumstances, the impugned judgment is
set aside, we remit the matter to the High Court so far as
0
it relates to Second Appeal No. 285 of 2000 for disposal
in accordance with law. The appeal is disposed of on the
aforesaid terms with no order as to costs."
{See also Koppisetty Venkat Ratnam (D) through LRs.
v. Pamarti Venkayamma [(2009) 4 SCC 244]} E
23. However, we are of the opinion that keeping in view
the peculiar facts and circumstances of this case and as the
plaintiffs have filed the suit as far back in the year 1990, the
interests of justice should be subserved if we in exercise of our F
jurisdiction under Article 142 of the Constitution of India issue
the following directions with a view to do complete justice to
the parties.
i. The plaintiffs may file an application for grant of
leave to amend his plaint so as to enable him to G
pray for a decree for eviction of the defendant on
the ground that he is a trespasser.
11. For the aforementioned purpose, he shall pay the
requisite court fee in terms of the provisions of the H
478 SUPREME COURT REPORTS [2009) 12 S.C.R.
A Court Fees Act. +-
iii. Such an application for grant of leave to amend the
plaint as also requisite amount of court fees should
be tendered within four weeks from date.
B iv. The defendant - appellant would, in such an event,
be entitled to file his additional written statement.
v. The learned trial judge shall frame an appropriate ....
issue and the parties would be entitled to adduce
c any other or further evidence on such issue.
vi. All the evidences brought on record by the parties
shall, however, be considered by the court for the
purposes of disposal of the suit.
D vii. The learned trial judge is directed to dispose of the )t
suit as expeditiously as possible and preferably
within 3 months from the date of filing of the
application by the plaintiffs in terms cf the
aforementioned direction (i).
E
24. The appeals are allowed with the aforementioned
directions. No costs.
~
K.K.T. Appeals allowed.
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