P L D 1969 Dacca 132 (PLP)

B. A. SIDDIKY, J.‑This Appeal of the defendant is directed against the Judgment and Decree passed by the learned Additional District Judge, Dacca, reversing the decision of the learned Subordinate Judge who dismissed the suit of the plaintiff. Plaintiff's suit was for establishment of title and recovery of Khas possession in the suit property. The plaintiff's case, in short, was that the property in suit is a house in the city of Dacca and originally belonged to one Priya Nath Pal who died on 8‑6‑1959 leaving his only adopted son Peari Lal Pal as the heir, Peari Lal Pal exchanged the Dacca properties including the property in suit with the Calcutta properties of one Ashraf Hossain Md. Asim and for execution of the deeds executed a power‑of‑attorney in favour of one Badaruddin in his turn executed a deed of sale in respect of the suit property in favour of Md. Asim on representation that the occupier of the premises‑the defendant‑appellant before us, was a tenant‑at‑will in the suit property. The sale included the rent payable by the defendant. The deed was executed on 25‑3‑1961. Thereafter on 3‑6‑1961 Md. Asim, the purchaser, informed the defendant about the transfer of the premises by him to the plaintiff and asked him to attorn the plaintiff as his landlord and make payment of rent to the plaintiff. The plaintiff too served a notice on the same date, i.e., 3‑6‑1961 upon the defendant through his lawyer asking the defendant to pay the arrear rent to him. In answer to this letter of the plaintiff the defendant is alleged to have informed the plaintiff in vague and indefinite language that the plaintiff had mistaken the defendants statute in regard to premises in suit. Thereafter on 29‑7‑1961 the plaintiff again served a notice on the defendant asking him to clarify his status and position relating to the suit premises. The defendant fraudulently did not answer to this letter of the plaintiff. Thereafter the plaintiff came to know that the defendant disclaiming his status as a monthly tenant filed Title Suit No. 53 of 1955 against Peari Lal Pal alleging that Priya Nath Pal through his attorney Ram Kumar Pal contracted to sell the property for Rs. 7,000 and took advance of Rs. 4,000 by executing a deed of agreement in favour of the defendant, i.e., plaintiff in Title Suit No. 53 of 1953. The plaintiff further came to learn that the signature of Ram Kumar Pal, the alleged attorney, in the deed of agreement was found to be forged by the handwriting expert and the defendant allowed his Suit (T. S. No. 53 of 1953) to be dismissed for default. Then the plaintiff filed House Rent Case No. 273 of 1961 before the House Rent Controller for permission to sue the defendant for ejectment in Civil Court on the ground of default of payment of Rent wherein the defendant tiled a written objection on 19‑5‑1962 repudiating his tenancy in the suit property and setting up a false plea of adverse possession against the plaintiff and his predecessor‑in‑interest since 1948. Because of the disclaimer and repudiation of tenancy by the defendant the plaintiff has acquired right of re‑entry in the suit property by evicting the defendant therefrom who has converted himself into a trespasser and for the purpose has filed the present suit. The defendant Syed Moin Ahmed contested the suit by filing a written statement and denying the allegations made by the plaintiff in the plaint. His case inter alia is that ever since partition of this Sub‑Continent and establishment of Pakistan In 1947 the premises had been lying vacant in a damaged condition and the defendant when came to Dacca from India as a refugee sometime after the 14th August 1947 was badly in need of accommodation and finding the suit premises vacant forcibly occupied the same in February 1948, and thereafter repaired the suit premises at a substantial cost and since then has been in continuous and exclusive possession of the same with his family members and this possession of the defendant for more than 12 years has conferred a title on him by adverse possession in the suit property. Further it is alleged by the defendant that his forcible possession of the property is within the knowledge of the plaintiff's predecessor‑in‑interest and rest of the world. Defendant has never paid any rent of the house in Suit and he was not a tenant tinder anyone in respect of the suit premises as alleged by the plaintiff. His further case was that one Kamini Kumar A. Ray negotiated with the defendant to sell the house to him and he advanced Rs. 4,000 to the said Kamini Kumar Ray as part‑payment of the price of the house who reported to the defendant that he had already paid Rs. 4,000 to Ram Kumar Ray, the agent of Priya Nath Pal, and a written agreement was entered into for sale of the house by Peari Lai Pal to the defendant for a consideration of Rs. 7,

000. That although the defendant had filed Title Suit No. 53 of 1953 which he gave up, yet his possession of the suit property to the adverse interest of the true owner since 1948, which is more than 12 years from the date of the filing of the present suit has not in any way been affected by filing of the said suit by the defendant in 1953. The learned Subordinate Judge who tried the suit, having considered the documentary and oral evidence brought on record by the parties dismissed the suit of the plaintiff on a finding that the plaintiff's suit being for declaration of title and recovery of Khas possession on the plea of his having been in possession through the defendant whom he described as a tenant- at‑will, having failed to establish his possession within a period of 12 years from the date of the filing of the suit, is not entitled to any relief. The plaintiff appealed against the decision of the learned Subordinate Judge and the learned Additional District Judge, Dacca, who heard the appeal reversed the decision of the learned Subordinate Judge holding that the learned Subordinate Judge's finding is based on evidence of the witnesses taken out of the context and as such was not sustainable in law. Both the Courts, however, found the plaintiff to be out of possession within 12 years of the filing of the suit. The defendant has therefore preferred this second appeal to this Court against the judgment of the learned Additional District Judge. Mr. T. Ali, the learned Advocate for the defendant‑appellant before us canvassed three points for our consideration in this appeal. First contention of Mr. T. Ali was that the learned Additional District Judge has misread and misrepresented the evidence on record; secondly, he contended that the learned Court of Appeal below having found that the plaintiff was out of possession of the suit property for more than 12 years prior to the date of filing of the suit, it should have, in view of the provisions of Article 142 of the Limitation Act, dismissed the suit of the plaintiff; and thirdly, he contended that the suit of the plaintiff is bad for want of notice under section 111‑G of the Transfer of Property Act. In view of the points raised for our consideration we allowed the learned Advocates for the parties to take us through the plaint, written statement and the evidence on record. In the plaint, it has not been stated that the plaintiff or his predecessor- in‑interest was the owner in possession of the suit premises but it is said that the defendant was a tenant‑at‑will of the predecessor-in‑interest of the plaintiff, thereby what was intended to be conveyed is that the predecessor‑in‑interest of the plaintiff and the plaintiff had possession of the suit property through defendant No. 1 who was a tenant‑at‑will of the predecessor‑in‑interest of the plaintiff as well as of the plaintiff. In his evidence in Court the plaintiff said that the defendant No. 1 is a trespasser and he prayed for declaration of title and recovery of Khas possession of the suit land. It was the case of the plaintiff that the defendant No. 1 was a tenant‑at‑will under the predecessor‑in‑interest and had paid rent to him but he has failed to produce any documentary evidence to prove his assertion. Rather, he had admitted in his evidence that when he asked for rent receipts or counterfoils of rent receipts from his predecessor‑in‑interest he was told that there was no rent receipt to prove the payment of rent by defendant No.

1. As far as his immediate. predecessor‑in‑interest is concerned, i.e., Asim, he did not ask from him the counter foils of rent receipts. The plaintiff further in his evidence admitted that he did not even enquire as to who was in actual physical possession of the suit premises before his purchase. Witness No. 2 for the plaintiff is none but his vendor Asim. According to this witness, he found the defendant in possession of the suit premises a week after his purchase but he did not enquire who was in possession of the house before that. He admitted that neither Badaruddin, the attorney, who executed the sale‑deed in his favour nor Peari could produce any rent receipts to show that the defendant No. 1 was a tenant in the suit premises. Later in his evidence this witness stated that a month before his purchase Badaruddin, the attorney of Peari and the Manager of Pearl told him that the defendant was a monthly tenant in the suit premises since 1950 and that the defendant had paid rent for one year and thereafter did not pay any further rent. It was his further evidence that when he asked for the collection papers of one year's rent as stated by the Manager of Peari Lai Pal he could not produce the same. These talks he had with the Manager of Peari Lai and Badaruddin prior to the exchange of the property between him and Peari Lai. It is his further evidence that he did not enquire as to who was in possession of the suit premises prior to 1960. Immediately after this, the witness deposed to the following effect. "The defendant entered the house in February or March 1950." Upon this evidence the learned Subordinate Judge held that the defendant No. 1 is occupying the suit premises in no other capacity except that of a trespasser adversely to the interest of the true owner and others for a little more than 12 years prior to the filing of the present suit on the 7th of June 1960. He did not accept the evidence of one Gopi Ballah Bashak (P. W. 3) who stated that the defendant entered into the suit premises 5 or 6 months after the disturbance of 1950 which could take us to July August or September 1950. Both the Courts below have disbelieved the evidence of the two defence witnesses who spoke about the defendant's occupying the suit premises sometime early in 1948. The first point of Mr. T. Ali is in respect of the evidence of P. W.

2. He submits that according to the learned Subordinate Judge, the evidence of P. W. 2 who has stated that the defendant No. 1 entered into the suit premises in February or March 1950, clinches the issue of limitation. But the learned Additional District Judge has found fault with the learned Subordinate Judge in interpreting the evidence of P. W. 2 in favour of the defendant or against the plaintiff on the point of limitation. According to the learned Court of Appeal below the learned Subordinate Judge has read the evidence of P. W. 2 to the effect that the defendant entered into the suit premises in February or March 1950, out of context of the entire evidence. According to Mr. T. Ali this finding of the learned Court of appeal below amounts not only to misreading of evidence but also misrepresentation of it. We have referred to the evidence of P. W. 2 earlier in extenso. We have read the entire evidence of P. W. 2 for more than once to find out if the learned Court of Appeal below has at all misread and misrepresented the evidence of this witness as suggested by Mr. T. Ali. We must say that we are fin full agreement with Mr. T. Ali that the learned Court of Appeal below is wholly wrong in saying that the learned trial Court has read the evidence of P. W. 2 in respect of time of entry of the defendant in the suit premises out of context. Rather we find the learned Court of appeal below has not only misread the evidence of P. W. 2 but also misrepresented it. There is, therefore, sufficient force in the argument of Mr. T. Ali on the first point raised by him. Now upon a reading of the evidence on record along with the pleadings it is clear to us that the plaintiff's case comes under Article 142 of the Limitation Act. Under this Article it is the duty of the plaintiff first to prove to the satisfaction of the Court that he was in possession of the suit premises within 12 year prior to the filing of the suit and if he fails to do so he cannot get decree for declaration of title and recovery of possession from a person whose status upon the evidence is found not to be that of either a tenant or a licensee or a person in possession under the title of the true owner. Mr. Aziz, the learned Advocate for the plaintiff-respondent, vigorously argued that the defendant cannot, in the facts of the case, be construed to be a trespasser in the suit premises posses sing the same adversely to the interest of true owner for the reason that in 1953 he filed a suit for specific performance of a contract against Priya Nath Pal the original owner of the property. According to Mr. Aziz, once the defendant has filed a suit for specific performance of a contract against the true owner on the plea of having entered into the premises upon an agreement to purchase he cannot be held to ire trespasser possessing adversely to the interest of the true owner. Unfortunately for Mr. Aziz the plaint in Title Suit No. 53 of 1953 does not support his contention. There is no averment in the plaint of Title Suit No. 53 of 1953 filed by the defendant‑appellant before us as plaintiff therein that he entered into the suit premises upon agreement to purchase the same. Nothing about the date, of the entry of the terms of entry has been mentioned in that plaint. All that has been stated is that subsequent to his entry in the premises Kamini Kumar Ray approached him on behalf of Pal and wanted to negotiate to sell the premises for Rs. 7,000 and took advance of Rs. 4,000 as earnest money. We have very carefully checked the plaint or Title Suit No. 53 of 1953 and we find that there is no prayer for specific performance of contract in the plaint. It is a plaint, which cannot strictly be construed to be plaint for specific performance of contract. Apart from that the agreement on the basis of which the suit was filed having been proved to be a forged one, the whole thing was .a got‑up and concocted affair brought about by the defendant, for what reason the defendant alone can say. In a suit for specific performance of contract or in a case of normal sale and purchase what is required is that the two minds that is the mind of the seller and the mind of the purchaser must concur to prove the willingness of both parties to sell and purchase the property for a legal consideration upon terms as agreed upon between them. In view of the facts that the whole Title Suit No. 53 of 1953 was based on falsehood and forgery there was no meeting point for the two minds of the seller and the buyer and there could not be any willingness on the part of the seller to sell and the buyer to purchase at the price and on the terms as were sought to be made out in the plaint of Title Suit No. 53 of 1953. Rather it seems that the defendant was both the seller and the buyer. He procured or manufactured the agreement on a forged signature of Kamini Kumar Ray setting him up as an attorney of Pal and therefore there was no question of a proper and legal agreement for sale and purchase to be given effect to under the said alleged agreement for sale entered into between the attorney Kamini Kumar Ray and the defendant No.

1. It was then argued by Mr. Aziz that though it is true that all the elements of true sale and purchase were not available on the facts found as far as Title Suit No. 53 of 1953 is concerned yet the mental condition of the defendant can be read from it. 13e means to say that the defendant did not at any point of time have the intention of forcibly occupying and adversely possessing the property against the true owner. He intended to acquire a legal title from the true owner of the property and that being so the time must run for adverse possession from the date of dismissal of that suit for non‑prosecution and if that be so, then upto 7th June 1962, 12 years have not elapsed and Article 142 of the Limitation Act cannot come into play. We cannot agree to this submission of Mr. Aziz, because we fail to see any honest intention in defendant No. 1 even in filing the suit in 1953. He has been in possession of the suit property forcibly and adversely to the interest of the true owner and did not bother either to recognise Peari Lal Pal or for that matter anybody else who was claiming under Peari Lal Pal. The owner also could not prove anything either by documentary or oral evidence to show that the defendant entered into the premises on agreement to purchase or as tenant or as licensee. Mr. Aziz referred us to two decisions of the privy Council, reported in A I R 1934 P C 23 and A I R 1935 P C

36. On the point that the defendant having fraudulently suppressed the claim of adverse possession against the vendor of the plaintiff the defendant is not entitled to any relief on the principles of adverse possession. Unfortunately for Mr. Aziz both these decisions are contrary to his submissions and the facts of the case. Mr. Aziz submitted that after getting notice from Peari, Asim and the plaintiff to attorn (to) Asim and the plaintiff as his landlord and the defendant having not disclosed the fact clearly that he was, possessing the property adversely to the interest of a true owner he is guilty of fraud and this fraudulent suppression of true state of affairs by the defendant has deprived him of the claim of acquisition of title by adverse possession. Privy Council in, this connection has in the two decisions referred to above in very clear terms observed. "For adverse possession it is sufficient that the possession is overt and without any attempt at concealment so that the person against whom time is running ought,, if he exercises due vigilance, to be aware of what is happening." The property in suit is house in the city of Dacca adjacent to the Railway Crossing at Nowabpur and was thickly populated by the members of the Hindu community. The property itself belonged to a Hindu named Peari Lal Pal and the area is still a mixed area. The owner of the property Peari Lal Pal used to live at 109, Nowabpur Road which is very close to the property. The presence of the defendant in the suit premises since 1950, as stated by the plaintiff's witness No. 2 the vendor of the plaintiff,. could not be kept secret from the Pals or for that matter from Asim the purchaser from Pal for as many as 12 years. The fact must have been known to the Pal from the very beginning. This is rather admitted by the plaintiff himself and his vendor Asim that the Pal's Manager told them that the defendant was in possession as tenant at will. Therefore the presence of the defendant is known to the plaintiff and his predecessor‑in‑interest.. As such according to the observations of the Privy Council there could not be any suppression of the fact by the defendant nor we are prepared to interpret the silence of the defendant to the last letter of the plaintiff or his reply to his letter dated 3‑6‑1961 that his status in relation to the suit property has not been correctly stated by the plaintiff to mean fraudulent suppression of true state of affairs. As such these two decisions cited by Mr. Aziz instead of helping him are against him. To the point raised by Mr. Aziz that suit for specific performance of contract filed by the defendant (Title Suit No. 53 of 1953) amounts to an acknowledgment of plaintiff's title. The answer is that it cannot be so construed. Acknowledgment for this purpose must be under section 19 of the Evidence Act. Reference in this connec tion may be made to I L R 46 Mad. 525 and I L R 57 Bom.

709. Next Mr. Aziz's contention was that it is for the defendant to prove that he was in adverse possession of the suit property for more than 12 years. This will depend on the frame of the suit of the plaintiff. In terms of the plaint and the case made out by the plaintiff we have already found that this is a case which is covered by Article 142 of the Limitation Act. Until the plaintiff proves his possession within 12 years, there is onus on the defendant to prove his adverse possession. In the present case the onus was upon the plaintiff to prove his possession within 12 years which he has failed to do. Lastly if it was the case of the plaintiff that the defendant was tenant‑at‑will there was also the defect of non‑service of notice under section 111‑G of the Transfer of Property Act. For the reasons stated above we find substance in all the contentions of Mr. T. Ali. The judgment of reversal pronounced by the learned Court of Appeal below is not, in our opinion, a proper judgment of reversal and therefore cannot be allowed to stand. In the result we allow this appeal, set aside the judgment and decree of the Court of Appeal below, restore those of the learned Subordinate Judge and dismiss the suit of the plaintiff: We leave the parties to bear their own costs. MAHMUD HOSAIN, J.‑I agree. A. H. Appeal allowed.