Holding

The appellant did not acquire any title over the property; the plaintiff's title was valid and the suit for possession was rightly decreed in his favour.

Summary

The plaintiff (respondent No.1) purchased the suit property from the rightful owner, T. Bayarappa, in 1991. Defendant No.2 (appellant) was in permissive possession of the land and claimed lawful title based on a purported chain of agreements involving a power of attorney and an assignment to the plaintiff, but no registered deed was produced and the plaintiff’s earlier suit for specific performance was withdrawn. Both the trial court and the Karnataka High Court found that the plaintiff held a valid title and that the appellant had not acquired any title, merely permissive possession, and consequently decreed the suit for possession in favour of the plaintiff. On appeal, the Supreme Court affirmed that the lower courts were correct, holding that permissive possession does not confer a better title and that the appellant failed to prove any title. The appeal was dismissed and costs awarded against the appellant.

Issues considered

Whether the appellant could establish a better title over the suit property despite being in permissive possession.
Whether the burden of proof in a suit for possession lies solely on the plaintiff to prove title, and whether the defence's failure to prove title can lead to a decree in favour of the plaintiff.
Whether the Bangalore Development Authority had acquired the property under the Land Acquisition Act, 1894, thereby affecting the plaintiff's title.

Legislation cited

Land Acquisition Acts. 1894
Specific Relief Acts. 9

Subjects

possessiontitlepermissive possessionspecific performanceburden of proofland acquisitioncivil suitdecreeappellate jurisdiction

Judgment

[2008] 15 S.C.R. 706

A P.H. DAYANAND
v.
S. VENUGOPAL NAIDU & ORS .
.(Civil Appeal No. 6570 of 2008)
NOVEMBER 7, 2008 ·
B
; [S.B. SINHA AND CYRl.AC JOSEPH, JJ.]

Suit for possession - Based on title - Decreed - Courts
below arrived at finding of fact that plaintiff purchased suit
""' :
c property from rightful owner and defendant no.2 did not
acquire any title over property - Interference with - Held: Not
called for as defendant no. 2 merely came in permissive
possession and could not be said to have acquired better title
than the plaintiff.
D
The case of plaintiff-respondent no.1 was that he
purchased the suit property from the lawful owner. Y-....,.,
.

Defendant no.2-appellant claimed that he was in lawful
possession of property in his own right. Plaintiff filed a
suit claiming title over the property on the ground that
E
defendant no.2 was in permissible possession over the
property. Suit was decreed and High Court affirmed the
same. Hence the instant appeal.

The defence of appellant was that the owner of the
-1'
F suit property had entered into an agreement of sale with
one 'K' and a power of attorney was also executed in his ..._
favour. The said 'K' assigned his rights in favour of
defendant no.1 and delivered possession of property to
him. Defendant no.1 filed a suit for specific performance
G of contract, however same was withdrawn.
Dismissing the appeal, the Court ""
HELD: Both the courts below concurrently found the >.....
contentions of the plaintiff-respondent that he had
H 706
P.H. DAYANAND v. S. VENUGOPAL NAIDU & ORS. 707

purchased the property from the rightful owner. Even, A
according to the appellant, the purported transaction
between rightful owner and 'K' and defendant No.1 did
not result in execution of a registered deed of sale in his
favour. Admittedly, the defendant No.1 himself filed a suit
for specific performance of the contract against his B
vendor. It was concurrently found by both the courts that
the defendant No.2 cannot be said to have acquired any
title over the· property, particularly when the defendant
. "" No.1 himself withdrew the suit for specific performance
of contract. It was furthermore noticed that even the c
purported agreement for sale was not produced before
the trial court by the defendant No.1. When questioned,
~
counsel for appellant conceded that there is nothing on
record to show that the Bangalore Development Authority
at any point" of time has acquired the property in suit in D.
terms of the provisions of the Land Acquisition Act, 1894
, --r· or otherwise. Admittedly, the plaintiff's vendor was in
possession of the suit property. It is only through him, the
defendant No.1 and defendant No.2 claimed possession.
As the original owner has transferred his title in favour
E
of the plaintiff-respondent, the court was required to go
into the question of inter se claim between the parties on
or over the land in dispute. Even if plaintiff and his vendor
has been in prior possession, the defendant No.2 who
came in permissive possession of the property through
..... t him cannot be said to have acquired a better title than the F
plaintiff. [Paras 9 and 10] (710-D-H; 711-A]

Somnath Burman v. Dr. S.P. Raju & Anr. (1969) 3 SCC
129; Ramchandra Sakharam Mahajan v. Damodar Trimbak
Tanksale (Dead) & Ors. (2007) 6 SCC 737, referred to. G
Case Law Reference:

~. (1969) 3 sec 129 referred to Para 10
(2001) 6 sec 737 referred to Para 11
H
.- .

•
708 . SUPREME COURT REPORTS [2008] 15 S.C.R.

A · CIVIL APPELLATE JURISDICTION: Civil Appeal No.6570
of 2008.

From the final Judgment and Order dated 8.8.2006 of the
High Court of Karnataka at Bangalore in Regular First Appeal
No. 790. of 2006.
B
L. Nageshwar Rao, Raghavendra S. Srivastava and
Abhijat P. Medh for the Appellant.

P.V. Shetty, D.L. Jagadish, B Vishwanath Bhandarkar, V.N. '¥".

c Raghupathy, Ranji Thomas, Lagnesh Misra, Sandeep and
Naresh Kumar for ti1e Respondents.

The Judgment of the Court was delivered by

5.8. SINHA, J. 1. Leave granted.
D
2. The short question that arises for consideration in this
appeal is as to whether the Courts below were correct in Y,
decreeing the suit only on the premise that defendant No.2-
appellant could not prove his title.
E
3. The basic fact of the matter is not in dispute. The
plaintiff-respondent No.1 purchased the suit property in the year
1991 from one T. Bayarappa. Apparently plaintiff-respondent
No.2 was in permissive possession thereof. As despite request
he refused to vacate the licensed premises, the suit was filed.
F "i . /
4. On the other hand, the defence of the appellant before
us was that he had been in lawful possession cf the property
in his own right.

Appellant, inter alia, contended that the original owner of
G
the property, viz., Shri T. Bayrappa had entered into an
agreement of sale with one Shri Krishnamurthy. A Power of
Attorney was also executed in his favour. The -said
Krishnamurthy has assigned his rights under an agreement in )..._
favour of denfendant No.1, (late Shri G. Srinivas) and delivered
H
..
P.H. DAYANAND v. S. VENUGOPAL NAIDU & ORS. 709
[S.S. SINHA, J.]

possession of the property to him. Shri Srinivas raised A
constructions thereupon. Shri Krishnamurthy allegedly as an
agent of T. Bayrappa assigned his rights in favour of G. Srinivas
on 10.5.1997.

He filed a suit for specific performance of contract. It was 8
furthermore claimed that Shri Srinivasan entered into an
agreement with the petitioner to convey the property for a total
consideration of Rs.9,60,000/-.

A joint written statement was filed in the said suit by the
contesting defendants. Admittedly, however, the said suit for C
specific performance of contract was withdrawn. An additional
written statement was filed by the petitioner claiming his title
under the aforementioned agreement entered into by and
between him and the defendant No.1
D
5. The learned Trial Court framed a large number of issues.

Parties adduced their respective evidences on the said
issues.

The suit was decreed and the first appeal filed thereagainst E
was also dismissed by the High Court by reason of the
impugned judgment.

6. Mr. Nageshwar Rao, learned senior counsel appearing
on behalf of the appellant, in support of the appeal at the outset,
F
drew our attention to the fact that although plaintiff purported to
have purchased the suit property iii the year 1994 but from the
records it would appear that he allegedly entered into an
agreement for sale with Shri T. Bayrappa in the year 1991. The
Power of Attorney was also executed in his favour authorizing G
him to encumber and alienate the said property.

It was pointed out that from the record it would furthermore
. _.. . appear that the plaintiff-first respondent filed a writ petition
before the H!gh Court of Karnataka alleging that Bangalore
Development Authority had been making attempts to H
710 SUPREME COURT REPORTS [2008] 15 S.C.R.

A dispossess him and demolish the structures on the land when )._
his applica~ion for regularization of construction was pending
before·the said Authority.. Learned counsel would contend that
from the said records, thus, it would appear that the land in
question had been acquired by the Bangalore Development
B Authority arid, thus, the plaintiff having losfhis title, the 'question
of defendant No.2's being in permissive possession thereof
would ·not arise and thus, the suit filed by the plaintiff claiming
title over the property could not have been decreed.
....- ...
7. Mr. P.V. Shetty, learned counsel appearing on behalf of
c the respondent, on the other hand, would support the judgment.

8. Both the courts below have concurrently found the
contentions of the plaintiff-respondent that he had purchased
the property from the rightful owner T. Bayrappa. Even ·,
-D according to the appellant, the purported transaction between
Shri T. Bayrappa and Shri Krishnamurthy and defendant No.1 \ t
'y~
did not result in execution. of a registe~ed deed of sale in his
favour. Admittedly, the defendant No.1 himself filed a suit for
specific performance of the contract against his vendor. It has
E concurrently-been found by both the courts that the defendant
No.2 cannot be said to have acquired any title over the property,
particularly when the defendant No.1 himself withdrew the suit
for specific performance of contract. It was furthermore noticed
that even the purported agreement for sale was not produced
F before the trial court by the defendant No.1. -1 ,..-
9. When questioned, Mr. Nageshwar Rao conceded that
there is nothing on record to show that the Bangalore-
Development Authority at any point of time has acquired the
property in suit in terms of the provisions of the Land Acquisition
G Act, 1894 or otherwise. Admittedly, the plaintiffs vendor was
in possession of the suit property. It is only through him, the
...;
defendant No.1 and defendant No.2 claimed possession. As
the original owner has transferred his title in favour of the )._ .
plaintiff-respondent, the court was required to go into the
H question ·of inter se claim between the parties on or over the
P.H. DAYANAND v. S. VENUGOPAL NAIDU & ORS. 711
[S.B. SINHA, J.]

land in dispute. Even if plaintiff and his vendor has been in prior A
j.' possession, the defenciant No.2 who came in permissive
possession of the property through him cannot be said to have
acquired a better title than the plaintiff.

This aspect of the matter has been considered in Somnath 8
Burman v. Or. S.P. Raju & Anr. [(1969) 3 SCC 129] wherein
this Court held :

"It was next contended on behalf of the appellant that in a
"< v suit for possession brought on the basis of title, the plaintiff
cannot succeed unless he proves his title to the suit c
property as well as its possession within twelve years.
According to the appellant, except in a suit under Section
9 of the Specific Relief Act, the plaintiff for succeeding in
the suit, has to prove both existing title to the suit property
and its possession within twelve years. We are unable to D

-
accept this contention as correct. In our opinion the
·Y possession of the plaintiff prior to 1945 is a good title
against all but the true owner. The defendants who are
mere trespassers cannot defeat the plaintiff's lawful
possession by ousting him from the suit property. E
Possessory title is a good title as against everybody other
than the lawful owner."

10. Mr. Nageshwar Rao, however, drew our attention to a
decision of this Court in Ramchandra Sakharam Mahajan v.
).- F
Damodar Trimbak Tanksa/e (Dead) & Ors. [(2007) 6 SCC
----7
737], wherein it was held :

"13. The suit is for recovery of possession on the strength
of title. Obviously, the burden is on the plaintiff to establish
that title. No doubt in appreciating the case of title set up G
.
by the plaintiff, the court is also entitled to consider the rival
__,
... title set up by the defendants. But the weakness of the
defence or the failure of the defendants to establish the
~
title set up by them, would not enable the plaintiff to a
decree. There cannot be any demur to these propositions." H
712 SUPREME COURT REPORTS [2008] 15 S.C.R. .
'
.---

A · 11. The said decision, thus, itself is an authority for the ·
proposition that the -court is entitled to take into consideration
r
the defence of the defendants. The sole question which arose f-

for consideration before the Court therein was· as to which of
:---
the parties had a better title.
B
12. For the reasons aforementioned, there is no merit in
this appeal. It is dismissed accordingly.

As a finding of fact has been arrived at by the courts below
that the appellant had been prolonging the hearing of the suit,
C he must pay and bear the costs of the first respondent.
Counsel's fee assessed at Rs.75,000/-.

D.G. Appeal dismissed.

).
"