Holding

The Supreme Court held that TTD's title was never extinguished; the High Court erred in re‑appraising evidence and in finding the title extinguished, and the plaintiff’s suit for possession filed beyond six months could not succeed.

Summary

The plaintiff, K.M. Krishnah, sued Tirumala Tirupati Devasthanams (TTD) for a permanent injunction over 2.29 acres of land. The trial court dismissed the suit for lack of title and possession; the plaintiff later amended the suit to seek possession after being dispossessed on 30 August 1969, filing the amendment on 25 July 1970, more than six months after dispossession. The High Court reversed the lower courts, holding that TTD's title was extinguished based on a delivery receipt and rejecting the evidence accepted below, and granted possession to the plaintiff. The Supreme Court examined whether a prior judgment not inter partes could be used as evidence, whether the second appellate court could re‑appreciate evidence and declare the title extinguished, and whether the plaintiff could recover possession despite filing beyond the six‑month period under Section 6 of the Specific Relief Act. The Court held that the earlier judgment was admissible, but the High Court erred in re‑appreciating evidence and in finding the title extinguished; TTD's title remained subsisting, and the plaintiff’s suit for possession filed after six months could not succeed. Consequently, the appeal was allowed, the decree for possession set aside, and the stay confirmed.

Issues considered

Whether a judgment not inter partes is admissible as evidence under Section 13 of the Indian Evidence Act.
Whether the second appellate court could re‑appreciate evidence and hold that the defendant's title was extinguished when no such issue was raised in the lower courts, under Section 100 CPC.
Whether a dispossessed plaintiff can recover possession when the suit for possession is filed beyond six months from dispossession, pursuant to Section 6 of the Specific Relief Act, 1963.
Whether the plaintiff's claim of adverse possession could defeat the defendant's subsisting title.

Legislation cited

Subjects

Specific Relief Actpossessiontitleadverse possessionSection 6Section 100 CPCSection 13 Evidence Actjudgment as evidencere‑appreciation of evidenceextinguishment of titleinjunctionland dispute

Judgment

TIRUMALA TRIUPATI DEVASTHANAMS A
v.
K.M. KRISHNAlAH

MARCH 2, 1998

[S.P. BHARUCHA AND M. JAGANNADHA RAO, JJ.] B

Specific Relief Act. 1963 :

Section 6: Suit for possession-Filed after lapse of 6 months from date
of dispossession-Held-Plaintiff cannot claim benefit of Section 6 and C
question of title can he raised by the defendant-Since the title of the
defendant has not heen extinguished and is subsisting Plaintiff cannot recover
possession from true oivner.

Code of Civil Procedure, 1908 : Section I 00 : Powers of second
appellate court-Trial court and first appellate court held on the basis of D
documentary and oral evidence that possession of property was with
defendant ·-Plaintiff did not produce any docu111c11ta1:y evidence-Second
appellate court rejected oral and documentary evidence accepted by courts
below and gave· a finding that title of defendant stood extinguished-In
appeal-Held-It is not open to second appellate court to re-appreciate E
evidence and reject evidence accepted by courts below on question of
possession-f-1-'hen there was no issue on question of adv.erse possession in
courts below, second appellate court could not have given finding that title
of defendant stood extinguished.

Indian Evidence Act, 1872 : Section J3: Evidence of an assertion of F
right to property-To prove title, appellant relied upon a judgment in another
suit declaring title-Respondent was not a party in that si!it-Held-A
judgment not inter parties is admissible in evidence.

On 14.1.68 the rcs11ondcnt-11laintiff filed a suit for 11c1-mancnt injunction
against A1111ellant-Tirumala Tiru11ati Dcvcasthaanams in res11ect of Acres G
2.29, of land in Tirumala Hills. The trial court dismissed the suit holding
that the t1laintitT had 11rowd neither title nor 11osscssion and that the 1llaintiff
had tm.11assed in October 1967 and was not entitled to 11ermancnt in,iunction
against the true owner i.e. the deity.

The plaintiff filed an a1ipeal and during 11emlency of the appeal, the H
9
10 SUPREME COURT REPORTS [1998] 2 S.C.R.

A plaintiff was dispossessed on 30.8.1969 On 25. 7. 70, that is after more than
6 months of dispossession, he moved for amendment of plaint into one for
possession. The appellate com1 also held that the plaintiff had proved neither
title nor 11osscssion. Both the com1s relied upon judgment dated 15.6.42 in
another suit wherein the com1 had declared the defendants title to this
B property. Subsequently, dcliYery was obtained by the defendants under Ex B
6, deliver)· receipt, on 12.1.46. Based on oral and documentary evidence
adduced by defendant, including governmental surl'ey report, annual auctions
of lease held interest of these lands, cultivation accounts, receipts for leasing
etc., both courts found that Jllaintiff has neither title nor possession. It was
pointed out that no documentarJ' C\'idence such as cultivation accounts, tax
C receipts etc. were produced by the plaintiff. It was also obsen•ed that the
defcndant-TTD had filed a criminal complaint again~i the plaintiff alleging
trespass and the plaintiff had filed the present suit for injunction one day
later: Howeve1; the second appellate comi rejected the oral and documentary
evidence adduced by both sides. It held that the defendants's titled stood
"extinguished" inasmuch as, the delh•erJ· receipt dated 12.1.46 showed some
D encroachers to Ire in possession. Accordingly, a decree for possession was
passed in fal'our of the plaintiff.

fn the present :111peal filed hy the defendant-TTD it was contended that
it was not 011cn to second ll)lpellate comi to re:tp)Jreciatc evidence and reject
E the oral and docurncnt;iry C\'idence which was accc11ted by the courts below
and held that TTD 's title ~food 'e:1.iini,'llished' when no such issue was raised
in the lo•yer co111is. F111ihermore, if the suit was to be decided only on the
basis of )Jossessory title and if section 6 of the S)lccific relief Act was not
:l\'ailahle to the plaintiff, the suit for possession was liable to he dismissed
since the TTD had proved title which was subsisting.
F
The plaintiff-res)londent contended that the judgment in another suit
relied UJIOn hy the lower courts was not admissible or binding in the present
suit since the plaintiff was not a 11a11y thereto. He also contended that the
delivery recei)lt, Ex B6 dated 12.1.46 in the earlier suit showed that as far
as acres 2.29 was concerned, the land was being cultivated by encroachers
G and hence, TTD was not 1mt in positions of the suit J1rot1erty on 12.1.46. He
contended that the )llaintiffs family was in possession of the land for 60
years, upto filing of the present suit on 14.2.68 and hence, the second
at1pellate cou1i rightly held that TTD's title stood "extinguished" atleast
between 12.1.46 and 30.8.69 when TTD dis11ossessed the t1laintiff.

H Allowing the a11peal, this Court
T.T. DEVASTHANAMS v. K.M. KRISHNAlAH 11
HELD : 1. When a suit for possession is filed by a plaintiff, claiming A
to be a person dispossessed more than 6 months before the filling of the suit,
the question of title can be raised by the defendant and if he does so, the
plaintiff must establish a better title or fail. A person in possession of land
has a good title against all the world except the true owner and it is wrong
in principle for anyone without title or authority of the true owner to dispossess B
him and relying on his position as defendant in ejectment proceedings to
remain in possession. A defendant in such case must show in himself or his
predecessor a valid legal title. Since the title of TTD had not been extinguished
and is subsisting as of today, in respect of the suit property, the plaintiff
respondent who was dispossessed on 30.8.69- but who applied for possession
on 25.7.70 beyond 6 months from date of dispossession- would not be able C
to recover possession. The TTD could remain and retain its possession. The
TTD continues to have absolute title to the property of acres 2.29 in S.N.
66911 and 669/2 and its title never stood "extinguished". [14-A-G; 20-G]

Nair Service Society Ltd v. KC Alexander, AIR (1968) SC 1165, relied
UpolL D
Asher v. Whitcock, [1865) 1 QB 1, and Perry v. Clissold, (1907) AC 73,
referred to.

2.1. It is obvious that under Section 100 CPC in second appeal it was
not open to the second appellate court to re-appreciate evidence and reject E
the evidence accepted by the courts below on the question of possession. In
the courts below the TTD had relied upon delivery receipt dated 12.1.46. the
oral evidence of OW s 1 to 5, governmental survey report, annual auctions
of lease hold interest of these lands by TTD 1960's, cultivation accounts etc.
The said oral and documentary evidence was accepted by the courts below as F
proof of TTD's possession after 12.1.46 and upto October 1967, when the
plaintiff trespassed into the property. In the face of the above material, the
judge in second appeal erred in stating that the TTD did not produce any
documentary evidence to prove its leases after the delivery under Ex. 86 on
12.1.1946. (17-D-G; 18-B; 16-E)
G
3.1. The plaintiffs case that he and his predecessors were in
possession for more then 60 years was found against him by the lower courts
in view of oral and documentary evidence produced by the TTD. Accordingly,
the plaintiff could not claim that he must be taken to be one of the
'encroachers' referred to in the delivery receipt dated 12.1.46. Hence, there
was no scope for the High Court to hold in second appeal that the plaintiff H
12 SUPREME COURT REPORTS [1998] 2 S.C.R.

A was in possession before or after 12.1.1946 so as to prescribe litle by
adverse possession against TTD, resulting in extinguishment of the title of . -<.
the TTD. [18-C-D)

3.2. When there was no issue on the question of adverse possession

B
in the Courts below the second appellate court could not, for the first time,
have given a finding that the title of the TTD stood extinguished. The TTD
continues to have absolute title to the property of acres 2.29 and its title
i
)lever stood 'extinguished'. [15-C] ~

4. Under Section 13 of the Indian Evidence Act the appellate-TTD could
rely on the judgment in the earlier suit as evidence to prove its title in
C regard to the suit property even though the present plaintiff was not a party
to that suit. [16-BI

Srinivas Krishna Rao Kango.v. Narayan Devji Kango and Ors., AIR
(1954) SC 379 and Sita! Das v. Sant Ram & Ors., AIR (1954) SC 606, relied
D upon

Dinamoni v. Brajmohini, (1902) ILR 29 Cal. 190 (i98) PC; Ram Ranjan
Chakerbati v. Ram Narain Singh, (1895) ILR 22 Cal. 533 (PC); and Collector
v.
of Gorakhpzir Ram Sunder, AIR (1934) PC 157 (61 IA 286), referred to.

E Commentary on Evidence Act by Sir John Woodrojfe, [19311 P 181,
cited.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1484 of
1987.

F From the"Judgment and Order dated 24.4.87 of the Andhra Pradesh High
· Court in S.A. No. 78 I of 1982.

Soli Sorabjee, K. Ram Kumar and Ms. Asha G. Nair for the Appellant.

A.T.M. Sampath for the Respondent.
G
The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. The Appellant (Tirumala Tirupati
Devasthanams, hereinafter called the T.T.D), is the defendant in the suit O.S.
No. 51 of 1968 filed by the respondent-plaintiff in the Court of the District
H Munsif at Tirupati. The suit was filed by the respondent for grant of pemlanent
T.T. DEVASTHANAMS v. K.M. KRISHNAIAH [M. JAGANNADHA RAO, J.) 13
injunction against the TTD in respect of Ac 2.29 of land in Tirumala Hills. A
The trial Court dismissed the suit holding that the plaintiff had proved
neither title nor possession and that the plaintiff who had trespassed into the
property in October, 1967, was not entitled to permanent injunction against
the true owner of the property, namely, the TTD.

The plaintiff filed an appeal and during the pendency of the appeal, the
plaintiff had temporary injunction in CMP 319 of 1969 in his favour only upto
28.8.1969 and was dispossessed on 30.8.1969 by the TTD. The plaintiff then
filed·an application CMP No 289of1970 on 25.7.70 underorder 6 Rule 17 CPC
(beyond 6 months from the date of dispossession) for amendment of plaint C
and converted the suit into one for possession. The appellate Court too held
that the plaintiff had proved neither title nor possession to the suit property.
The appeal was dismissed by judgment dated 5.8.1"982. We may state here that
both courts relied upon the judgment of the Sub-Court, Chittoor dated
15.6.19.42 in an earlier suit filed by the TIO against the Hathiramji Mutt in l 937
(O.S. 51/1937) wherein that Court had declared the TTD's title to this property. D
Such title was declared on basis of title deeds of 1887. Evidence of the Deity's
possession from 1846 was adduced in that suit. Subsequent to the decree
dated 1.5.6.1942, the TTD filed E.P. No. 1 of 1946 against Hathiramji Mutt and
obtai.ned delivery under Ex. 86 delivery receipt on 12.1.1946 through Court.

After failing in both Courts, the respondent plaintiff preferred second E
Appeal No 781 of 1982 in the High Court. The learned Judge allowed the
appeal by judgment dated 24.4.1987 and passed a decree for possession in
· favour of the plaintiff observing that the suit was to be treated as one based
on '.possessory title, and that the plaintiff dispossessed on 30.8.1969 could
recover possession from the appellant TTD unless the !TD proved title. The
learned Judge held that the oral evidence adduced by both sides was to be F
rejected and that the TTD's title in respect of this extent of land of Ac ?.29
st.ood "extinguished" inasmuch as the delivery receipt dated 12.1.1946 showed
that some 'encroachers' were in possession of this piece of land. Such a
finding as to extinguishment of plaintiff's title was given for the first time in
second Appeal, even though there was no such issue in the courts below. G
Against the said judgment in Second Appeal, deqeeing the suit for possession,
this Civil Appeal has been preferred by .the TTD.

Learned senior counsel for the TTD, Sri Soli J. Sorabjee contended
before us that it was not open to the second Appell~te Court to reappreciate
evidence and reject the oral or documentary evidence which was accepted by H
14 SUPREME COURT REPORTS [1998] 2 S.C.R.

A the courts below and that it was also not open to the Court in Second Appeal
to hold that the TTD's title stood "extinguished" when there was no such
issue framed in the lower courts. If the suit was to be decided only on the
basis of possessory title, as even accepted by the Second Appellate Court
and if section 6 of the Specific Relief Act 1963 was, even according to the
B said court, not available to the plaintiff,- because the application for amendment
to convert the suit into one for possession was filed on 25.7.1970, beyond
6 months from the date of dispossession i.e. 30.6.69, -the suit for possession
was liable to be dismissed as the TTD had proved title and the said title was
subsisting and was never extinguished.

C On the other hand, it was contended by Sri A.T.M. Sampath, learned
counsel for the respondent-plaintiff that the earlier judgment in OS 51/1937
- Sub-Court, Chittoor was rendered in a suit by the TTD against the Hathiramji
Mutt and that the present plaintiff was not a party thereto and hence any
declaration as to title in favour of the TTD given therein in respect of the suit
property was not admissible or binding in the present suit. He also contended
D that the delivery receipt Ex.86 dated 12.I.1946 in the earlier suit OS 51/1937
in favour of the TTD showed that the TTD was given possession of 0.06
cents in S.No. 669/2 and 0.39 cents in S.No.669/1 only and that so far as Ac
2.29 in S. No. 66912 was concerned, it was stated in the said receipt that that
extent of land was being cultivated by 'encroachers'. He, therefore, contended
that TTD was not put in possession of the suit property on 12. l.1946.
E According to him, the plaintiffs family from the time of his grandfather
Chengaiah was in possession of the Ac 2.29 for over 60 years right up to the
filing of the present suit on 14.2.1968 and hence the learned· Judge was right
in holding that TTD's title to this extent of Ac 2.29 stood 'extinguished'. It
stood extinguished, in any event, between 12.1.1946 and 30.8.1969 when TTD
F dispossessed the plaintiff. The suit of the plaintiff, as amended, based on
possessory title was therefore rightly decreed by the second Appellate Court.
The plaintiff who was dispossessed on 30.8.69 could, even if the 6 months
period pres.cribed in section 6 of the Specific Relief Act expired, maintain a
suit for possession and recover possession on the basis of possessory title,
as held by this Court in Nair Service Society Ltd Vs. K.C. Alexander, AIR
G (I 968) SC I 165, which judgment was relied upon by the learned Judge in the
High Court.

In view of the above contentions, the following three points arise for
consideration:

H (1) Whether the judgment in OS 51 of I 937, Sub-Court, Chittoor dated
T.T. DEVASTHANAMS v. K.M. KRISHNAIAH [M. JAGANNADHARAO, J.] 15
15.6.1942 declaring the title of the TTD, was admissible and could be relied A
upon by the TTD as evidence in the present case, even though present
plaintiff was not a party to OS 51 of 1937?

-- (2) Whether it was open .to the Second Appellate Court to reappreciate
the evidence and hold that the oral evidence adduced by the parties was not
acceptable and that in view of the recitals in Ex B6 delivery receipt dated B
12.1.1946, the title of the TIO was to be deemed 'extinguished'. and whether
this could be done when there was no such issue raised in the courts below?

(3) Whether, in case we should hold on Point 2 that the Second Appellate
Court could not hold that the TTD's title stood extinguished, the· decree for
possession based on posscssory title as granted by the Second Appellate C
Court, could be sustained?

Point I:

It was argued by the learned counsel for the plaintiff respondent that
the earlier judgment in O.S. 51of1937 dated 15.6.1942 was rendered in favour D
of the TID against Hathiramji Mutt, that plaintiff was not a party to that suit
and hence any finding as to TIO 's title given therein is not admissible as
evidence against the present plaintiff in this suit.

In our view, this contention is clearly contrary to the rulings of this E
Court as well as those of the privy Council. In Srinivas Krishna Rao Kango
v. Narayan Devji Kango & Others, AIR (1954) SC 379, speaking on behalf
of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held
that a judgment not inter parties is admissible in evidence under section 13
of the Evidence Act as evidence of an assertion of a right to property in
dispute. A contention that judgments.other than those falling under sections F
40 to 44 of the Evidence Act were not admissible in evidence was expressly
rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a
Bench of four learned Judges in Sita/ Dasv. Sant Ram & Others, AIR (1954)
SC 606 held that a previous judgment not inter partes, was admissible in
evidence under section 13 of the Evidence Act as a 'transaction' in which
a right to property was 'asserted' and 'recognised'. In fact, much earlier, Lord G
Lindley held in the Privy Council in Dinamoni v. Brajmohini, (1902) ILR 29
Cal. 190, 198 PC that a previous judgment, not inter partes was admissible
in evidence under Section 13 to show who the parties· were, what the lands
in dispute were and who was declared entitled to retain them. The criticism
of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. H
16 SUPREME COURT REPORTS (1998) 2 S.C.R.

A Ram Narain Singh, (1895) ILR 22 Cal 533 PC by Sir John Woodroffe in his.
commentary on the Evidence Act (1931, P 181) was not accepted by Lord
Blanesburgh in collector ofGorakhpurv. Ram Sunder, AIR (1934) PC 157 61
IA286.

For the aforesaid reasons, we reject the contention of the learned
B counsel for the respondent-plaintiff and hold that the TTD could rely on the
judgment in OS 51/37 as evidence to prove its title in regard to the suit
property, even thoug_h the present plaintiff was not a party to that suit. Point
No. 1 is held accordingly against the respondent.

Point 2: ·
c
It was argued for the appellant that the Second Appellate Court could
not have rajected the oral and documentary evidence which was accepted by
the Courts below on the question of possession. ,It was also argued that in
Second Appeal, it was n9t open to the High Court to hold that the title of
D the TTD stood 'extinguished' when tl).ere was no· such issue raised in the
courts below.

It is obvious that under section 100 CPC in Second Appeal it was not
open to the Second Appellate Court to reappreciate the evidence and reject
the evidence accepted by the courts below on the question of possession.
E We may here refer briefly to the reasoning of the trial court and of the first
appellate court on the question of possession.

The respondertt-plaintiff, in proof of his contention that his family from
his grandfather's Chengaiah's time for over 60 years was in possession of this
property, examined himself as PWl and four other witnesses of PW2 to PW5.
F As pointed out by the learned District Munsif, the plaintiff did not produce
a scrap of paper - either the cultivation accounts maintained by the government
(called the Adangals or Rule 10(1) and 10(2) accounts), or any tax receipts in
token of payment of land revenue. Now the TTD auctioned the lease hold
interest in this property annually. This land was leased to to PW2 for the fasli
G year 1372 (1962 to 1964) and to PW3 for the fasli year 1375 (1965-66). These
leases would, in fact, be proof of TTD's possession during these years, i.e.
after it took delivery on 12.1.1946 under Ex B6. Curiously the plaintiff examined
these tenants on his side to say that the plaintiff was in possession during
this period and not the TTD. The evidence of PWs 2 and 3 was, upon a
thorough discussion, rejected by the learned District Munsif as well by the
H first appellate court. The evidence of the watchman PW4 and of the milk
T.T. DEVASTHANAMS v. K.M. KRISHNAIAH [M. JAGANNADHA RAO, J.) 17
vendor PW5 put forward by the plaintiff was also rejected by the said courts A
>-- for good reasons. At the same time, the said Courts held that the plaintiff had
trespassed into the suit property in October, 1967 when one P. Subrahmanyam,
another lessee of the TTD for the year 1967-68 was in possession pursuant
to ·auction held by the TTD in that year. The trial court held that the suit land
was known as Kaki Chowk Thota and was never known after the plaintiffs B
paternal grand father as Chengaiah Thota. It was the Nandavanam of the
Deity. The Court pointed out that the plaintiff had deliberately not mentioned
...i.._ the S.Nos of the suit land in the plaint and tried to confuse the issue by
stating at the time of evidence that said land bore S. No. 592 and not 669.
The Court held that S.No. 592 was the old S.No. for the same land now
covered by S.No. 669/1 and 669/2. The Court observed that inasmuch as the C
TTD had filed a criminal complaint against the plaintiff alleging trespass, the
plaintiff, with a view to ward off criminal proceedings, filed the present suit
for injunction one day later.

In the Courts below, the TTD had relied upon Ex. B6 delivery receipt
dated i2.1.1946, the oral evidence of DWs 1 to 5, and the governmental D
survey report of 1914. It also relied upon the annual auctions of the lease-
hold interest of these lands by the TTD to PW2, PW3 and P. Subrahmanyam
during 1962 to 1967, till plaintiff trespassed into the property in October, 1967.
The TTD filed the cultivation accounts Ex, BS, Ex. B9 for S:No. 669 .(old S.N.
592), Ex. BIO list ofkist paid for the lands ofTTD for fasli-1378 (1968), Ex. E
14, the Much11lka dt. 26.6.1967 executed for 1967-68 by P. Subrahmanyam who
WaS the highest bidder for the year 1967-68. The said oral and documentary
·evidence was accepted by the Courts below as proof of TTD' s· possession
after 12.1.1946 and upto October, 1967 when the plaintiff trespassed into the
property. When the trial court and the first appellate court have thus based

- ------ their finding as to possession on the above material, the learned Judge in
Second Appeal was not.right in stating that:
F

"No reliance can be placed upon the interested oral evi9ence adduced
by the parties in support of their respective claims."

Nor could he state, in the face of the above evidence in the case, the TTD G
had not filed a "single deed of lease" in support of its claim for possession.
We have on record the auction notices issued by the TTD for the lease-hold
rights. They were marked on plaintiffs side when he examined PW2 and PW3.
Ex. A3 dt. 13.6.65 was issued by the Executive Officer, TTD, Ex. A4 dated
6.8.62 in the duplicate challan issued to PW2 for Fasli 1372 and Ex. AS dated
20.7.68 is the receipt issued to PW2 by the TTD. Ex. A6 dated 10.11.65 is the H
18 SUPREME COURT REPORTS [1998) 2 S.C.R.

A receipt for leasing Kaid Chowk thota for Fasli 1375 and Ex. A 7 contains the
proceedings relating to confirmation of sale oflease-hold rights for Fasli 1375.
TTD produced Ex. 814 dated 26.7.67 as the Muchalka executed by the lessee
P. Subrahmanyam for the year 1967-1968 in favour of the TTD. In the face of
the above material, the learned Judge erred in stating that the TTD did not
B produce any documentary evidence to prove its leases after the delivery
under Ex. B6 on 12.1.1946.

The plaintiffs case that he and his predecessors were in possession for
more than 60 years was therefore found against him. If that be so, the plaintiff
could not claim that he must be taken to be one of the 'encroachers' referred
C to in Ex B6 delivery receipt dated 12.1.1946. Therefore, there was no scope
for the learned Judge to hold that the plaintiff was in possession before or
after 12.1.1946 so as to prescribe title by adverse possession against the TTD
resulting in extinguishment of the title of the TTD. In any event, when there
was no issue on the question of adverse possession in the Courts below, the
Second Appellate Court could not, for the first time, have given a finding that
D the title of the TTD stood extinguished. The following finding in Second
Appeal that, for· the TTD:

" ..... no physical possession of the property was obtained till 12.1.1946
or thereafter. The defendants' title to the suit property was thus
extinguished"
E
is, therefore, unsupportable. We accordingly set aside the same and hold that
the TTD continues to hi!ve absolute title to the property of Ac 2.29 in S.N.
66911 and 669/2 and that its title never stood 'extinguished'. Point 2 is decided
accordingly against the plaintiff and in favour of the appellant.

F Point 3 :

We have already stated that after the plaintiff filed the first appeal, the
temporary injunction expired on 28.8.1969 and the TTD dispossessed the
plaintiff on 30.8.1969. The plaintiff did not claim any relief within six months
G under Section 6 of the specific Relief Act, 1963 but applied on 25.7.1970,
beyond 6 months from date of dispossession, for amendment of plaint
converting the suit into one for possession. The point is, if the title of the
TTD to the suit property, as held by us on Point 2, was never extinguished
but continued to be absolutely subsisting, whether the plaintiff, claiming to
be a person dispossessed by the TTD on 30.8.69, could recover possession?
H In our opinion, the judgment of this Court in Nair Service Society Ltd. v. K.C.
T.T. DEVASTHANAMS v. K.M. KRISHNAIAH [M. JAGANNADHA RAO, J.] 19

Alexander, AIR (1968) SC 1165 answers this point squarely. The facts of the A
case before us and in that case are quite close but for a small distinction, to
which we shall refer at the appropriate stage.

In that case the respondent was the plaintiff and he was dispossessed.
He sued for possession but the suit was filed more than one year after
dispossession. Under the specific Relief Act, 1877 section 9 permitted a B
dispossessed plaintiff to sue for possession within one year and if he so
sued, question of title of the defendant was immaterial. Now under section
6 of the new Specific Relief Act, 1963 the said period of one year has been
reduced to six months. Question arose whether the suit by the dispossessed
plaintiff, after expiry of the 1 year period, was maintainable. It was held by C
this court that even if the time for filing a summary suit under Section 9 the
specific Relief Act, 1877 expired, the dispossessed person could still file a suit
for possession on the basis of prior possession. Such a suit is described as
one based on 'possessory title'. But in such a suit filed by the dispossessed
plaintiff beyond the period specified in section 9 of the Specific Relief Act,
1877 (or Section 6 of the 1963 Act) defendant who dispossessed the plaintiff D
could defend himself by proving title and if he proved title, he could remain
in possession. After an exhaustive examination of the law on this aspect,
Hidayatullah, J. (as he then was) observed as follows (p 1173):

"When, however, the period of 6 months has passed, questions of
title can be raised by the defendant and if he does so, the plaintiff E
must establish a better title or fail."

The difference between the right to possession in summary suit under .the
specific Relief Act and a regular suit based on 'possessory title' was explained

,
further as follows (p.1173) '
F
" .... the right is only restricted to possession only in a suit under
Section 9 of the specific Relief Act but does not bar a suit on prior
possession within 12 years and title need not be proved unless the
defendant can prove one".

On the question whether the defendant, inspite of dispossessing the plaintiff, G
could, by proving title, remain in possession, it was held that the defendant
could, in such a situation, be permitted to retain his possession if he proved
title. It was stated that the law was so laid down in Asher v. Whitcock, [1865]
1 QB I and was accepted by the House of Lords in Perry v. Clissold, [1907
AC 73], that was also the law applicable in our country and it was this H
20 SUPREME COURT REPORTS [1998] 2 S.C.R.

A principle that was engrafted into Articles 64 and 65 of the Indian Limitation
Act, 1963. The said articles were, it was held, declaratory of the law. The
following observations of Hidayatullah, J. (as he then was) place the matter
beyond any shadow of doubt, (p.1175, Col.I):

"1865 (I) QB I. Asher v. Whitcock, lays down that a person in
B possession of land has a good title against a II the world except the
true owner and it is wrong in principle for any one without title or
authority of the true owner to dispossess him and relying on his
·position as defendant in ejectment to remain in possession" .... A
defendant in such a case must show in himself or his predecessor a
C valid legal title or ...." (name of case in brackets supplied)

On the_ facts in Nair Service Society, the said Society which was the defendant
raised a plea that it has not dispossessed the plaintiff-respondent but that the
plaintiff was dispossessed by the State which was the real owner. It contended
further that the State had put the society in possession, after dispossessing
D the plaintiff. The High Court however, held that it was the Society that had
dispossessed the plaintiff and not the State. This finding was accepted by
the supreme Court. It was therefore held that the suit for possession by the
dispossessed plaintiff was maintainable even though the one year period
under section 9 of the old Specific Relief Act. 1877 had expired, that the suit
would then be one where title could be pleaded by the Society to remain in
E possession, but that the Society failed to prove. title in itself. Nor did the
Society prove any authority from the true owner to dispossess the plaintiff.
The S~ciety could not, therefore, remain in· possession. However, in. this
Court, the Society set up a different root of title under a second Kuthaka -
pattam (see para 33) and with a view to shorten further litigation, an amendment
to the written statement of the Society was allowed by this Court and the
F matter was remanded.

In the present case before us the principles laid down in Nair Service
Society's case are squarely applicable with this difference namely that inasmuch
as, - in view of our finding in point 1, - title of the defendant TIO has not
G been extinguished and is subsisting as of today in respect of the suit property,
the plaintiff respondent who was dispossessed on 30.8.69 - but who applied
for possession on 25.7.70 beyond 6 months from date of dispossession -
would not be able to recover possession. The TIO could .remain and retain
its possession. We hold accordingly Point 3 in favour of the appellant.

H In the result the Civil appeal is allowed and the judgment of the learned
'Cl_

T.T. DEVASTHANAMS v. K.M. KRISHNAIAH [M. JAGANNADHA RAO, J.] 21
Judge in Second Appeal is set aside and the suit of the plaintiff for possession A
,i-
>- r, (as per the amended plaint) is dismissed with costs. The stay granted in
favour of the appellant on 27. 7.1987 is confirmed and consequent to the
appeal being allowed, the appellant will be entitled to recover, by way of
restitution, any mesne profits deposited by it pending this appeal and
withdrawn by the plaintiff. Such recovery by the appellant can be made either
by encashing any subsisting bank guarantee furnished by the plaintiff as B
directed by this Court in its order dated 27. 7. l 987 or in any other manner
whatsoever by way of resti tuti on.
""'
Before parting with the case, we must also state that the respondent-
plaintiff has filed certain additional documents in this appeal in IA 1 of 1991
purporting to be certified copies of Inam Fair Register, Inam B Register,
c
Resettlement Register, Inam Title Deed etc. said to have been obtained from
the office of the District Collector, Chittoor bearing dates 10.4.90 and 4.5.90
etc. In that IA, a detailed counter has been filed by the Department of Survey
and Land Records, TfD stating that on enquiry in the office of the District
Collector, Chittoor it was learnt that no such certified copies were issued by D
~
that office to the plaintiff and that the copies are false documents and appear
to have been obtained with the help on his close relative one Mr. Kumaraswamy,
worker in the Record Rooin of the Collector's office, who was closely related
to the plaintiff . These copies are said to be not true copies of the originals
but contain false recitals showing a grant by the Government in favour of the
plaintiff's maternal grandfather instead of the Deity. The counter filed by the
E
Department says that the copies filed are not genuine and are forged documents.
No doubt, plaintiff filed a rejoinder stating that he had applied for copies and
got them but he does not know who prepared them and that Kumaraswamy
is not related to him
~ ""' . Be that as it may, be make it clear that the plaintiff's counsel did not
F
choose to rely on those documents filed in IA I of 1991 before us. If he had
relied upon them, we would have considered if it was a fit case for ordering
an inquiry into the genuiness of tl1ese documents. The IA, in the circumstances,
is dismissed.

In the result, the Civil appeal is allowed as stated above and the IA 1
of 1991 is dismissed.

S.K. Appeal allowed and Al/91 dismissed.