Holding

The tenant failed to prove the alleged oral gift and could not claim title by adverse possession; the trial court’s decree in favour of the appellant stands.

Summary

The appellant, Kamakshi Builders, entered into a partnership with the owner of a property (Respondent No.3) and, through an arbitration award, acquired ownership of the premises that had been leased to Ambedkar Educational Society (Respondent No.1). The society claimed title to the property on the basis of an alleged oral gift from the former owner and, alternatively, on the basis of adverse possession, and refused to vacate. The appellant sued for possession and arrears; the trial court decreed in its favour, but the High Court reversed the decision. The Supreme Court held that the burden of proving an oral gift lay on the society, which failed to produce any documentary evidence or to have the donor examined, and therefore could not establish title. The Court also held that Article 67 of the Limitation Act did not apply because the tenancy had not been terminated, and that a tenant cannot acquire title by adverse possession while still in possession as a tenant. Consequently, the trial court’s decree was upheld.

Issues considered

The validity and evidential basis of the alleged oral gift of the property from the former owner to the tenant.
Whether the tenant could acquire title by adverse possession while still a tenant.
The allocation of the burden of proof in a claim of title based on an oral gift.
The applicability of Article 67 of the Limitation Act, 1963 to the suit.
Whether the tenant’s conduct, acquiescence or construction of buildings conferred any title.

Legislation cited

Arbitration Act, 1996s. Section 14(2)
Limitation Act, 1963s. Article 65, s. Article 67
Societies Registration Act
Transfer of Property Act, 1882

Subjects

oral giftburden of prooftenancyevictionLimitation ActArticle 67adverse possessionrent controlpartnershiparbitration awardtitle by prescriptionacquiescenceSocieties Registration Act

Judgment

MIS. KAMAKSHI BUILDERS A
v.
MIS. AMBEDKAR EDUCATIONAL SOCIETY AND ORS.

MAY 18, 2007

(S.B. SINHA & MARKANDEY KA TJU, JJ.] B

Rent control and eviction:

Transfer of Property Act, 1882/Limitation Act, 1963; Articles 65 & 67:
c
Tenancy-Tenant-Landlord issuing notice to tenant terminating
tenancy-Tenant did not deliver vacant possession and continued to tender
rent-Tenant allegedly acquiring title of the tenanted premises by way of
oral gift from Landlord-Landlord entering into a partnership agreement
with a builders & Ors.-Partner acquiring ownership of no property in terms
of an Arbitration Award-Notice to tenant for payment of rent-Suit for
D-
recovery of possession and arrears of rents-Decreed by Trial Court-
Recovered by High Court-On appeal, held a person who is claiming title
of the property by reason of an oral gift, a heavy burden lay on him to prove
the same-Tenant is an educational society claiming such title, registration
of the gift deed was expected of it-Acquisition of ownership of the property E
by way of gift, wholly without consideration is not expected of a registered
society-A letter purported to be issued by landlord, donor gifting the property
to tenent but the same had not been proved-Adverse inference could be
drawn which would have gone against the interest of the tenant-Besides,
in making an oral gift by an owner of no property in favour of his tenant
actual delivery of possession is imperative at point of time status of tenant F
merged from te11ant to lessee-The same was within the special knowledge
of the Landlord-Thus, onus lay heavily on him to prove the same-Neither
did, the tenant file any application for mutation of its nature before the
Revenue Authorities nor it take any steps to let others know about change
of his status as claimed-Acquiescence on the part of the tenant did not G
confer any title on him, conduct is a relevant fact but thereby no title could
be conferred-Non examination of Landlord though would give rise to a
presumption but by reason ofpresumption alone, the burden is not discharged/
a title is not created-Since the claim of the tenant was based on a title, the
339 H
340 SUPREME COURT REPORTS [2007) 7 S.C.R.

A onus was on him to prove the same but he failed to discharge the burden
under the circumstances-Trial Court committed no error in passing a decree
in favour of the plaintiff.

Limitation Act, 1963:

B Article 67-Applicability of-Held: not applicable-Article 67 is a
special provision it would apply in a case where tenant was ceased to be
a tenant.

Respondent No. 3 was the owner of a property which was let out to
Respondent No.1, on a monthly rent by a deed of lease dated 16.05.1973; the
C period of lease was expired in 1975. Respondent No.1, however, did not
surrender the tenancy or deliver vacant possession of the tenanted premises
to Respondent No.3. However, it tendered rents till December 1976. Later the
landlord entered into a development agreement with the managing partner of
the appellant-builde~ and others. However, disputes having arisen between
D them, the same were referred to an arbitrator. An arbitration award was passed
in terms whereof the appellant-partner became the owner of the property. the
tenant was called upon to pay rents in respect of the suit property by issuing •·
'-

a notice; in reply, respondent no. 1 asked the appellant to furnish the evidence
in proof of the ownership of the suit property. It however, did not disclose that
it bad acquired any ownership by reason of a purported oral gift made by the
E then Landlord as claimed later. As it failed to vacate the premises, a suit for
recovery of possession and arrears of rents and also for damages for wrongful
use and occupation of the property was filed by the appellant/partner, which
was decreed by trial court. On appeal the order oftbe trial court was reversed
by the High Court. Hence, the present appeal

F Appellant-partner contended that the High Court had failed to take into
consideration that Respondent No. 3 being admittedly the owner of the
property, the burden lay on Respondent No. 1, tenant, who had alleged an oral
gift was made in its favour, and it having failed to prove the same, assuming
that the landlord did not demand rent or did not take step therefore, he cannot
G be said to have proved its case; and that the question of the tenant acquiring
any title by adverse possession would not arise, as at all material point of
time, it was a tenant.

Respondent No. 1, tenant submitted that the burden of proof lay heavily
on the appellant to prove that the oral gift was made by Respondent No. 3 that
H DW-2, one of the attestors of the oral gift in his cross-examination stated
KAMAKSHI BUILDERS v. AMBEDKAREDUCATIONALSOCIETY 341
that he had written a letter of thanks to Respondent No.3 for his generous A
donation, non-production thereof would not give rise to an adverse inference;
~
that the trial judge committed a serious error in opining that he should have
displayed the factum of oral gift on any board, such a conduct, is very artificial
and unnatural; that although, no application for mutating the name was filed,
the same was not sufficient to negative the gift, particularly in the context of
other surrounding circumstances; that assumption of the Trial Judge that B
Respondent No.3 being a Muslim would have gifted the property to some
minority institution is based on conjectures and that the suit was barred by
limitation in terms of Article 67 of No Limitation Act as the deed of lease,
~
being for a period of 11 months, expired on 16.07.1974.

Allowing the appeal, the Court
c
HELD: 1.1. It is expected ofa person who has obtained title by reason of
an oral gift; Hiba although permissible in law, but a heavy burden lay on him
to prove the same. Respondent No.1 is an educational society. It was running
an institution on the suit property. It was, therefore, expected ofit that it would D
insist on execution of a registered deed of gift. [Para 16) [350-D, E)
,.

... ~
1.2. There cannot be any doubt whatsoever that only by reason of the '
fact that Respondent No.3 did not get himself examined for one reason or the
other, the same would mean that Respondent No.1 discharged its burden. The
Trial Judge did not place reliance on depositions of the witnesses examined E
on behalf of the Respondents to prove oral gift as they were interested persons.
The High Court did not deal with the matter. The Trial Judge analysed the
evidences brought on record by the parties. So far as the appreciation of
evidence based on oral evidence is concerned, the Trial Judge having had the
occasion to notice the demeanour of the witnesses, was the best judge to arrive
at a finding in regard to their reliability or trustworthiness. The High Court F
did not deal with the matter, ordinarily it could not have even done so.
""--' [Para 17) (350-E, F, G)

1.3. Non-examination of Respondent No.3 indisputably would give rise
to a presumption but by reason of presumption alone, the burden is not
discharged, a title is not created. (Para 28) (353-B, CJ G

Raj bir Kaur and Anr. v. S. Chokesiri & Co., (1988) 1 SCS 19, relied on

--... Marland Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh,
AIR (1931) Bombay 97; The Ramanathapuram Market Committee,
H
342 SUPREME COURT REPORTS (2007) 7 S.C.R.

A Virudhunagar v. East India Corpn. Ltd., Madurai, AIR (I976) Madras 323
and Vidhyadhar v. Manikrao and Anr., [I 999) 3 SCC 573, referred to.

Sardar Gurbaksh Singh v. Gurdial Singh, AIR (I927) PC 23, referred
to.

B 1.4. It may be true that conduct of the parties would be relevant, but
what would be more relevant is the conduct of a party, who from his status of
a tenant acquires the status of the owner of the property. Acquisition of such
ownership by way of gift and, thus, wholly without consideration, is not
expected of a society registered under the Societies Registration Act. Not
only that it was acknowledged such donation to the donor by issuing an
C appropriate letter in that behalf (which is said to have been done). DW-2
although stated before the court that such a letter had been written, the same
had not been proved. As the said letter has not been produced, the inference
which could be drawn therefrom is that either DW-2 did not tell the truth
that such a letter was written and/or an adverse inference could be drawn
· D ·that had the said letter been produced, the same would have gone against the
interest of Respondent No.I. [Para I8 and 2I) [35I-A, B, E, F)
,.
I.5; In making an oral gift by an owner of the property in favour of his
tenant apart from it being unlikely, actual delivery of possession is imperative.
There is nothing on record to show that at any point of time, Respondent No.3
E had delivered the possession of the premises in question to Respondent No.1.
Respondent No.I being a tenant, continued to be a tenant Its status as a lessee
on its own showing merged into a higher status. At what point of time such
status was changed been a relevant fact It was within the special knowledge
of Respondent No.3. The onus lay heavily on him to prove the saine.. It failed
F to discharge its burden. [Para 2I) [35I-F, G)

1.6. The Trial Judge cannot be said to have committed any error in
noticing the fact that Respondent No.I on its own showing did not file any
applicatio·n for mutation of its name before the Revenue authorities. It, even
did not take any 'step to let others know about its change of status, be it the
G Revenue Department, or be it other authorities with which it was dealing. An
application for mutation of one's name in the revenue records by the parties
although would not by itself confer any title, but then a presumption in regard
to the nature of possession can be drawn in that behalf. Had such an
application been tiled by Respondent No.I before the concerned authorities,
at least !t could have b.een shown that it had claimed possession on its own
H
KAMAKSHI BUILDERSv. AMBEDKAREDUCATIONALSOCIETY 343
right, not as a tenant. (Para 221 (351-H; 352-A, B, CJ A
2.1. The High Court although noticed the lease came to an end in the
year 1975 and if from the said date or at least from the date of purported oral
gift allegedly made in its favour by Respondent No.I. Any change in the nature
of its position occurred, it was expected of it to accept the same by its conduct
Why it would pay rent to Respondent No.3 till October 1976 has not been B
explained. (Para 231 [352-C-DI

2.2. Acquiescence on the part of Respondent No.I, as has been noticed
by the High Court, did not confer any title on Respondent No.I. Conduct may
be a relevant fact, so as to apply the procedural lay like estoppel, waiver or C
acquiescence, but thereby no title can be conferred. [Para 241 (352-D, El

2.3. It is now well-settled that time creates title. Acquisition of a title is
an inference of law arising out of certain set of facts. If in law, a person does
not acquire title, the same cannot be vested only by reason of acquiescence or
estoppel on the part of other. [Paras 25 and 261 (352-E, Fl D
2.4. It may be true that Respondent No.3 should have examined himself
..,,-,1 and the Trial Judge committed a serious error in drawing an adverse
inference in that behalf as against Respondent No. I. It was, however, so done
keeping in view the fact that Respondent 1~0.3 was evidently not interested in
the property in view of the fact that it had suffered a decree. E
[Para 281 (352-G; 353-A)

3. Article 67 of the No Limitation Act is a special provision. It would
apply in a case where a tenant has ceased to be a tenant in terms of the
provisions of the Andhra Pradesh (Rent and Eviction Control) Act
(Para 30) [353-D, E) F
4.1. A claim of title by prescription by Respondent No.1 is not tenable.
It based its ctaim on a title. It had, therefore,primafacie, no animus possidendi.
[Para 29) [353-C, DJ

4.2. A tenant continues to be a tenant despite termination of tenancy. G
Article 67 of the Limitation Act would not be attracted in a case where a tenant
remains a statutory tenant In a case of this nature, Article 65 would apply.
- As the claim of Respondent No.1 was based on a title, the onus was on him to
---./ prove the same. Respondent No.1 failed to discharge the same, and therefore,
the Trial Judge has committed no error in passing a decree in favour of the H
344 SUPREME COURT REPORTS [2007] 7 S.C.R.

A plaintiff. [Para 30) [353-E, F)
Smt. Shakunta/a S. Tiwari v. Hem Chand M Singhania, (1987) 3 SCC
211, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6345 of 2000.
B From the Final Judgment and Order dated 31.12.1999 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in C.C.C. Appeal No. 182 of
1998.
\·
··-....,.
Dust:;ant A. Dave, S. Udaya Kr. Sagar, Bina Madhavan, Akhil Sibal,
C Hema) K. Seth, Mishi Choudhary and Bharat Singh (for Mis. Lawyer's Knit
& Co.) for the Appellant.

K. Parasaran, A. Subba Rao, Anirudh Sharma, A.T. Rao, A.V. Rangam,
A. Ranganadhan and Buddy A. Rangandhan for the Respondents.

D The Judg.nent of the Court was delivered by

S.B. SINHA, J. 1. This appeal is directed against the judgment and
order dated 31.12.1999 passed by the High Court of Andhra Pradesh, allowing
the appeal from a judgment and decree dated 05.09.1998 passed by the IV
Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. I6I of 1989.
E
_ 2. Respondent No. 3 herein was the owner o( the property which is
situated at Bagh LingampaHi, Hyderabad. It was let out to Respondent No.
I, where an educational institution was being run on a monthly rent of
Rs.1,200/- by a deed oflease dated 16.05.1973. The period oflease was initially
for I I months, which expired in 1975. Respondent No. 1, however, did not
F surrender the tenancy or deliver vacant possession of the tenanted premises
to Respondent No.3. It tendered rents till December 1976. No rent, however,
was demanded by Respondent No. 3 from Respondent No. I. Several
constructions were raised by it from time to time.

3. Respondent No. 3, however, entered into a development agreement
G with the managing partner of the appellant and other persons on 01.04.1986.
A deed of partnership was executed on 2 I .04. I 986. Disputes and differences
having arisen between the partners, the same were referred to an arbitrator.
An arbitration award was passed on 22. I l.1987, in terms whereof a sum of
Rs.4,00,000/- was awarded in favour of Respondent No. 3. The said ~w,ard was
H made the rule of court in terms of Section 14('2} ~f·'th'e,,J\i't:)fftatlbii:Act, i940 '
KAMAKSHI BUILDERS i'. AMBEDKAR EDUCATIONAL SOCIETY (S.B. SINHA, J.] 345
"'-.,..
~

by an order dated 29.02.1988. Allegedly, by reason of the said award, the A
appellant became the owner of the property. Respondent No. 1 was called
upon to pay rents in respect of the suit property by a notice dated 22.11.1987.
The tenancy was tenninated by a notice dated 30.10.1988. On or about
08.12.1988, Respondent No. 1, in reply to the said notice, asked the appellant
to-furnish the particulars in regard to the ownership of the suit property. It,
however, not claimed therein that it had acquired any ownership by reason B

.- :•
of a purp0rted oral gift made by Respondent No. 3 herein, as appears to be
the case now. As it failed to vacate the premises, a suit for recovery of
possession and arrears cf rents and also for damages for wrongful use and
occupation of the property was filed by the appellant. In the written statement
filed in the suit, it was, inter alia, contended that Respondent No. 3 herein c
made an oral gift in its favour on or about 01.10.1975. In the alternative, it was
contended that it had acquired an indefeasible title in respect of the property
in question by adverse possession. Respondent No. 3 in its written statement
supported the case of the appellant, inter alia, denying and disputing the
claim of Respondent No. 1 herein that he made an oral gift in its favour.
D
___, 4. In the suit, inter alia, the following issues were framed :

"I. Whether the oral gift by the third defendant in favour of first
defendant is true and valid and binding on the plaintiff ?
II. Whether the documents relied upon by the plaintiff are brought
E
into existence in between the plaintiff and third defendant in the
circumstances alleged in W.S. ?"

5. Respondent No. 1 admittedly did not examine himself. The suit of the
appellant was decreed. The learned Trial Judge opined :

,....~ . ..,.j (i) The burden was on Respondent No. 1 to prove the oral gift. F
(n) There was no reason for it not to disclose thereabout in its reply
to the notice issued by the appellant.

(iit) No declaration was filed by Respondent No. 1 before the Urban
Land Ceiling Authority in the year 1976. G
(iv) A purported letter written by Respondent No. 3 confirming the
oral gift had not been produced.

- (v) Although constructions were raised by it on the suit premises,
in none of the applications, the right to make constructions was
based on the ownership of the property derived by reason of the H
346 SUPREME COURT REPORTS (2007] 7 S.C.R.

A oral gift. .~-
)

(vi) No disclosure was made in regard to the ownership of the property,
in the return filed by it before the Registrar under the Societies
Registration Act.
(vii) No resolution had been passed by the Governing Body accepting
B alleged oral gift.
(viii) No special quota or any reservation in the institution run by
Respondent No. I-Society for Muslims, having been made, the
plea of oral gift cannot be believed.

c (IX) No display on any board was made mentioning that the property
was gifted to Respondent No. I-Society.
(x) No mutation was effected pursuant to or in furtherance of the
alleged oral gift on 01.10.1975.

D
(XI) The witnesses of the purported oral gift being DW-2, DW-3 and
DW-4, being the Chairman of the Respondent No. I-society, his
•'
P.A. and a Chartered Accountant and friend ofDW-2 respectively,
no reliance can be placed upon their evidence. '-- I

(xii) Plea of purported oral gift was made for the first time only·m the ~
written statement.
E (xili) No gift tax was paid in respect of the said purported gift either
by Respondent No. 3 or by Respondent No. I.
(xiv) Had Respondent No. I any intention to make any gift, ordinarily
it would have been presumed to do so in favour of the minority t-
i
Muslim Societies.
F
(xv) No explanation had been offered by Respondent No. I as to why :i.:--~·
it paid rent upto October 1976.
(XVI) In none of the letters addressed by Respondent No. I to the
University Grants Commission, Osmania University, Urban Land
G Ceiling Authority, Registrar of Cooperative Societies, Municipal
Corporation of Hyderabad, the factum of the alleged deed of gift
was disclosed.
(xvii) The purported reply sent to the notice marked as Ex. A4 had not
been disclosed.
H
KAMAKSHI BUILDERS v. AMBEDKAR EDUCATJONAL SOCIETY [S.B. SINHA, J.] 347
...... __...,
(xviii) For proving the oral gift Respondent No. 1 should have examined A
Respondent No.3.
(xix) Respondent No. l had not been able to show that it had acquired
title by adverse possession.

6. The High Court, however, by reason of the impugned judgment
B
reversed the said judgment holding :

·~
.; (0 There was no reason as to why there was no demand to pay rent
from Respondent No. I for a period of ten years.
(iQ No explanation was offered as to why Respondent No. l was
asked to· deliver vacant possession of the property only in the c
year 1987 and a suit was filed only in the year 1989.
(lii) As Respondent No. 1 constructed a large number of structures
on the schedule property upon obtaining necessary permission
from the Municipal Corporation, Hyderabad and has been paying
taxes thereupon and having informed thereabout to various D
-7 authorities like University Grants Commission, Osmania University,
Government of Andhra Pradesh, no explanation was offered from
Respondent No. 3 as to why he had been keeping silence for the
period upto his entering into agreement with the appellant as a
partner and allowing an award to be passed by the learned
E
Arbitrator.
(iv) Acquiescence on the part of Respondent No. 3 would give rise
to a presumption that Respondent No. 1 had been allowed to
raise construction, which must have been done pursuant to the
oral gift of the property.
-_,.
F
(v) The reasoning of the trial court that donor being a Muslim would
not have gifted it to an institution belonging to other community
cannot be accepted. It was not necessary for Respondent No. I
to inform about the said oral gift to various authorities including
the University Grants Commission.
G
(vi) The findings of the learned Trial Judge disbelieving the case of
Respondent .No. I are based on sunnises and conjectures.

- (vii) Non-examination of Respondent No. 3 would give rise to an
adverse inference as burden of proof lay to show lay on him to
show that he had not made any oral gift having regard to his H
348 SUPREME COURT REPORTS [2007] 7 S.C.R.

A conduct apart from the oral testimony that Respondent No. I has
paid rent to Respondent No. 3 till 1976.
(viii) No materials was produced to show that in fact such rent was
tendered after 1975.

B 7. As regards the claim of Respondent No. I that it had perfected its
title by adverse possession, it was held that although a tenant cannot claim
adverse possession so long as he continues to be a tenant, but _once his
·~-
tenancy is determined, .his possession would be adverse to that of the owner.

8. Appellant is, thus, before us.
c · 9. Mr. Dushyant A. Dave, learned Senior Counsel appearing on behalf
of the appellant, would submit :

(i) The High Court committed a serious error in passing the impugned
judgment insofar as it failed to take into consideration that
D Respondent No. 3 being admittedly the owner of the property,
the burden lay on Respondent No. I who had alleged an oral gift
was made in its favour, and it having failed to prove the same,
assuming that Respondent No. 3 did not demand rent or did not
take step therefor, Respondent No. 1 cannot be said to have
proved its case.
E
(h) The question of Respondent No. I acquiring any title by adverse
possession would not arise, as at all material point of time, it was
a tenant.

10. Mr. K. Parasaran, learned Senior Counsel appearing on behalf of
F Respondent No. 1, would, on the other hand, submit :

(i) The burden of proof lay heavily on Appellant to prove the oral
gift was made by examining the donor i.e. Respondent No. 3 in
the suit and in any event, as it was incumbent on him to examine
himself inasmuch he having supported the case of the appellant
G must also be held to be plaintiff.
(ii) Although DW-2, one of the attestors of the oral gift in his cross-
examination stated that he had written a letter of thanks to .•
-

Respondent No. 3 for his generous donation, non-production
thereof would not give rise to an adverse inference, inasmuch as
H had the Respondent No. 3 gone into the witness box, a suggestion
KAMAKSHI BUILDERS v. AMBEDKAR EDUCATIONAL SOCIETY [S.B. SINHA, J.]349

would have been put to him in regard thereto. A
(fu) The learned Trial Judge committed a serious error in opiring that
Respondent No. I should have displayed the factum of oral gift
on any board, such a conduct, Mr. Parasaran would contend, is
very artificial and u_nnatural.
(iv) Although, no application for mutating the name of Respondent B
No. 1 was filed, the same was not sufficient to negative the gift,
particularly in the cont~xt of other surrounding circumstances.
(v) The learned Judge applied different standards by making
observation that Respondent No. I had not made any declaration
before the Urban Land Ceiling Authorities about the gift and no C
minutes thereabout had been produced, as the appellant or
Respondent No. 3 should have produced records of declaration
before the Urban Land Ceiling Authorities, particularly having
regard to the fact that the burden of proof in that behalf was on
the appellant as it filed a suit for ejectment. D
(vi) Assumption of the learned Trial Judge that Respondent No. 3
being a Muslim would have gifted the property to some minority
institution is based on conjectures.
(vii) The Trial Court has also committed a serious error in drawing
adverse inference against Respondent No. I for not issuing any E
letter to. the University Grants Commission, Osmania University,
Urban Land Ceiling Authorities, Registrar of Cooperative Society,
Municipal Corporation of Hyderabad, as there was no occasion
therefor.
F
11. The learned counsel would contend that having regard to the
provisions contained in Article 67 of the Limitation Act, the suit was barred
by limitation. The deed of lease, being for a period of 11 months, expired on
16.07.1974 and limitation would be deemed to run from the said date.

12. In this connection, our attention has also been drawn to the evidence G
of PW-1, who was the Managing Partner of the appellant, which reads thus:

"Just one or two months prior to execution of A.10, I came into
contact with D.3. I do not remember the persons who introduced D.3
to me I came to know through D.3 that D.1 is tenant. On the date D.3
WM introduced to me, he infonned that D. I is not paying the rents H
350 SUPREME COURT REPORTS [2007] 7 S.C.R.

A for the last 10 years"

13. As it was known to the said witness that Respondent No. 1 had not
been paying rents even before the partnership deed was entered into, the
appellant would be presumed to have no knowledge that Respondent No. 1
had been in possession of the property in assertion of his title by not paying
B rents. As Respondent No. 1 was in possession. for a period of more than 12
years, .it must be held to have acquired title by prescription.

14. Respondent No. 3 was admittedly the owner of the property. As his
ownership had not been disputed, the burden was on Respondent No. 1 to
C prove his title. It has, as noticed hereinbefore, claimed title : (i) by reason of
an oral gift; and (ii) by adverse possession.

15. The case that the oral gift was made on 01.10.1975 was specifically
made out. The witnesses to the said oral gift were members of the Governing
Council, his Personal Assistant and a Chartered Accountant, who admittedly
D was a friend ofDW-2.

16. It is expected of a person who has obtained title by reason of an
oral gift; Hiba although permissible in law, but a heavy burden lay on him to
prove the same. Respondent No. 1 is an educational society. It was running
an institution on the suit property. It was, therefore, expected-1>f it that it
E would insist on execution of a registered deed of gift.

17. It may be true that, as a defendant, it was not required to examine
Respondent No. 3 herein , who had been siding with the plaintiff by calling
him as a witness by getting summons to depose in the court. There cannot
be any doubt whatsoever that only by reason of the fact that Respondent
F No. 3 did not get himself examined for one reason or the other, the same would
mean that Respondent No. 1 discharged its burden. The learned Trial Judge
did not place reliance on depositions of the witnesses examined on behalf of
the Respondents to prove oral gift as they were interested persons. The High
Court did not deal with the matter. The ieamed Trial Judge analysed the
G evidences brought on record by the parties. So far as the appreciation of
evidence based on oral evidence is concerned, the learned Trial Judge having
had the occasion to notice the demeanour of the witnesses, was the best
judge to arrive at a finding in regard to their reliability or trustworthiness. The •.
High Court did not deal with the matter, orpinarily it could not have even done
H so [See Raj bir Kaur andAnr. v. S. Chokesiri & Co., [1988) 1 SCS 19).
KAMAKSHI BUILDERS v. AMBEDKAREDUCATIONAL SOCIETY [S.B. SINHA,J.) 351
18. It may be true, as has been contended by Mr. Parasaran, that A
conduct of the partie~ would be relevant, but what would be more relevant
is the conduct of a party, who from his status of a tenan~ acquires the status
of the owner of the property. Acquisition of such ownership by way of gift
and, thus, wholly without consideration, is not expected of a society registered
under the Societiei; Registration Act. Not only that it was acknowledged such B
donation to the donor by issuing an appropriate letter in that behalf (which
is said to have been done). DW-2 although stated before the court that such
a letter had been written, the same had not been proved.

19. Mr. Parasaran himself has relied upon a decision of this Court in
Gopal Krishnaji Ketkar v. Mamomed Haji Latif & Ors., [1968] 3 SCR 862 C
wherein this Court laid down the law in the following terms :

"... Even if the burden of proof does not lie on a party, th~ Court may
draw an adverse inference, if he withholds important documents in his
possession which can throw light on the facts at issue. It is, in or
opinion, a sound practice for those desiring to rely upon a certain D
state of facts to withhold from the Court the best evidence which is
in their possession which could throw light upon the issues in
controversy and to rely upon the abstract doctrine of onus of proof:"

20. The said decision has been noticed by this Court in subsequent
decisions in Punit Rai v. Dinesh Choudhary, [2003] 8 SCC 204 and Citibank E
NA. etc. v. Standard Chartered Bank and Ors etc., (2004 1 SCC 12.

21. As the said letter has not been produced, the inference which could
be drawn therefrom is that either DW-2 did not tell the truth that such a letter
was written and/or an adverse inference could be drawn that had the said
letter been produced, the same would have gone against the interest of F
Respondent No. 1. In making an oral gift by an owner of the property in
favour of his tenant apart from it being wholly unlikely, actual delivery of
possession is imperative. There is nothing on record to show that at any
point of time, Respondent No. 3 had delivered the possession of the premises
in question to Respondent No. 1. Respondent No. 1 being a tenant, continued G .
to be a tenant. Its status as a lessee on its own showing merged into a higher
status. At what point of time such status was changed been a relevant fact.
It was within the special knowledge of Respondent No. 3 The onus lay
heavily on him to prove the same. It fa~led to discharge its burden.

22. The learned Trial Judge cannot be said to have committed any error H
352 SUPREME COURT REPORTS [2007] 7 S.C.R.

A in noticing the fact that Respondent No. 1 on its own showing did not file
any application for mutation of its name before the Revenue authorities. It,
even did not take any step to let others know about its change of status, be
it the revenue department, or be it other authorities with which it was dealing,
namely, the University Grants Commission, Government of Andhra Pradesh,
Osmania University, or even Municipal Corporation of Hyderabad. An
B application for mutation of one's name in the revenue records by the parties
although would not by itself confer any title, but then a presumption in regard
to the nature of possession can be drawn in that· behalf. Had such an
application been filed by Respondent No. I before the concerned authorities,
at least it could have been shown that it had claimed possession on its own
C right, not as a tenant.

23. The High Court although noticed the lease came to an end in the
year 1975 and if from the said date or at least from the date of purported oral
gift allegedly made in its favour by Respondent No. I. Any change in the
nature of its position occurred, it was expected of it to accept the same by ·
D its conduct. Why it would pay rent to Respondent No. 3 till October 1976 has
not been explained.

24. Acquiescence on the part of Respondent No. 1, as has been noticed
by the High Court, did not confer any title on Respondent No. 1. Conduct
may be a relevant fact, so as to apply the procedural law like estoppel, waiver
E or acquiescence, but thereby no title can be conferred~

25. It is now well-settled that time creates title.

26. Acquisition of a title is an inference of law arising out of certain set
of facts. If in law, a person does not acquire title, the same cannot be vested
F only by reason of acquiescence or estoppel on the part of other.

27. It may be true that Respondent No. 1 had constructed some buildings;
but it did so at its own risk. If it though that despite its status of a tenant,
it would raise certain constructions, it must have taken a grave risk. There is
G nothing on record to show that such permission was grarited. Although
Respondent No. I claimed its right, it did not produce any document in that
behalf. No application for seeking such permission having been filed, an
adverse inference in that behalf must be drawn.

28. It may be true that Respondent No. 3 herein should have examined
H himself and the learned Trial Judge committed a serious error in drawing an
KAMAKSID BUILDERS v. AMBEDKAR EDUCATIONAL SOCIETY [S.B. SINHA, J.] 353
. adverse inference in that behalf as against Respondent No. 1. It was, however, A
so done keeping in view the fact that Respondent No. 3 was evidently not
interested in the prop" ':yin view of the fact that it had suffered a decree. For
all intent and purport, even ifthe submission of Mr. Parasaran is accepted that
the appellant is claiming is claiming only by reason of an award, he has
transferred the property in his favour. He received a valuable consideration B
in terms of the award. We are not concerned with the validity thereof. Non·
examination of Respondent No. 3 indisputably would give rise to a presumption,
as has been held by this Court in Sardar Gurbaksh Singh v. Gurdial Singh,
AIR (1927) PC 23, Martand Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh, AIR (1931) Bombay 97, and The Ramanathapuram Market
Committee, Virudhunagar v. East India Corpn. Ltd, Madurai, AIR (1976) C
Madras 323 and Vidhyadhar v. Manikrao and Anr., [1999) 3 SCC 573, but by
reason of presumption alone, the burden is not discharged. A title is not
created.

29. A claim of title by prescription by Respondent No. l again is not
tenable. It based its claim on a title. It had, therefore, primafacie, no animus D
possidendi.

30. Reliance placed by Mr. Parasaran on Article 67 of the Limitation Act
is also not apposite. It is a special provision. It would apply in a case where
a tenant has ceased to be a tenant in terms of the provisions of the Andhra
Pradesh (Rent and Eviction Control) Act. A tenant continues to be a tenant E
despite termination of tenancy. Article 67 would not be attracted in a case
where a tenant remains a statutory tenant. In a case of this nature, Article 65
would apply. As the claim of Respondent No. 1 was based on a title, the onus
was on him to prove the same. Respondent No. 1 failed to discharge the same
and, therefore, the learned Trial Judge, in our opinion, has committed no error F
_in passing a decree in favour of the plaintiff.
-..J

31. In Smt. Shakuntala S. Tiwari v. Hem Chand M Singhania, [ 1987]
3 SCC 211, whereupon Mr. Parasaran placed strong reliance, this Court was
considering a case where termination of tenancy in terms of Sections 12 and
13 of the Bombay Rent Act stood admitted. The question of applicability of G
Articles 66 and 67 of the Limitation Act was considered from that end. It was
held:-

"12. If that is so then on the strict grammatical meaning Article 67 of
the Limitation Act would be applicable. This is indubitably a suit by
the landlord against the tenant to recover possession from the tenant H
354 SUPREME COURT REPORTS [2007) 7 S.C.R.

A Therefore the suit clearly comes within Article 67 of the Limitation
Act. The suit was filed because the tenancy was detennined by the
combined effect of the operation of Sections 12 and 13 of the Bombay
Rent Act. In this connection, the tenns of Sections 12 and 13 of the
Bombay Rent Act may be referred to. At the most it would be within
Article 66 of the Limitation Act if we hold that forfeiture has been
B incurred by the appellant in view of the breach of the conditions
mentioned in Section 13 of the Bombay Rent Act and on lifting of the
embargo against eviction of tenant in two. Article 66 ·or Article 67
would be applicable to the facts of this case; there is no scope of the
application of Article 113 of the Limitation Act in any view of the
c matter. Sections 12 and 13 of the Bombay Rent Act co-exist and must
be hannonized to effect the purpose and intent of the legislatilre for
the purpose of eviction of the tenant. In that view of the matter Article
113 of the Limitation Act has no scope of application. Large number
of authorities were cited. In the view we have taken on the construction
of the provisions of Articles 67 and 66 of the Limitation Act and the
D nature of the cause of action in this case in the light of Sections 12
and 13 of the Bombay Rent Act, we are of the opinion that the period
of limitation in this case would be 12 years. There is no dispute that
if the period of limitation be 12 years, the suit was not barred."

E 32. The said decision has no application in the facts and circumstances
of the present case as there is nothing to show that after the expiry of period
envisaged in the lease and despite the fact that the respondent itself had been
paying/tendering monthly rent, there had been final determination of the
tenancy pursuant whereto the respondent was required to hand over the
vacant possession to the landlord. Nothing has been brought on record to
F show that the landlord has served any notice directing the tenant to handover
vacant possession upon valid tennination of the lease.

33. In Devasahayam (Dead) By Lrs. v. P. Savithramma and Ors., [2005]
7 SCC 653], whereto our attention has again been drawn, this Court came to
the conclusion that the civil court had no jurisdiction to try the suit covered
G by the rent control legislation. No such contention had, however, been raised.
The question which as to whether the Civil Court would have jurisdiction to
detennine a matter must fall for consideration of the trial court. An issue in
that regard should have been framed. In this case, the respondents have
raised a plea of title in itself, the question in regard to the jurisdiction of the
H Civil Court has not been raised, presumably in view of the fact, that ultimately
KAMAKSHI BUILDERS v. AMBEDKAR EDUCATIONAL SOCIETY [S.B. SINHA,J.] 355
the civil court was bound to detennine the question whether the defendant/ A
respondent No. 3 made an oral gift or not being a complicated question, could
not have gone into in a suit under the Rent Control Act. In any event, such
a question having not been raised, we are of the opinion that the same should
not be pe-mitted to be raised before us for the first time.

34. The plea in regard to lack of jurisdiction of the Civil Court has been B
raised for the first time in the Written Submissions filed by the respondents
and not even by the learned counsel while making oral submission.

..........
,. 35. In Sohan Singh and Ors. v. General Manager, Ordnance Factory,
Khaplaria, Jablapur and Ors., AIR (1981) SC 1862, this Court noted the
following in this regard : c
"We think that the view taken by the High Court on the facts of
this case is not correct because the jurisdiction of the labour court
was not challenged by the respondents in that court."

36. In Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR (1956) ·o
SC 593, this Court made a distinction be~een a proceeding which is collusive
_., .,
and one which is fraudulent. Respondents have never questioned the validity
of the Award and the decree. Nc. issue was framed in that behalf. It is not
a case where the suit can be dis.missed on the ground of there being a
collusive proc.eeding between defendant No. 3 and plaintiff.
E
37. For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. No costs.

S.K.S. Appeal allowed.