ivil Appeal No 1945 of 1974
From the Judgment and decree dated 9101973 of the Madras High Court in LPA No 78 of 1969
section Padmanabhan KMM Khan and Vineet Kumar for the Appellant
Vepa Sarathy and Ramesh N Keshwani for the Respondents
The Judgment of the Court was delivered by M FATHIMA BEEVI J
1
This is an appeal by special leave against the judgment and decree dated the 9th October 1973 of the High Court of Judicature at Madras in Letters Patent Appeal No 78 of 1969
The appellant was the first defendant in OS No 53 of 1959 in the Munsiff s Court Chingleput
The respondents are the legal representatives of Munisubba Reddi the plain tiff therein
That suit was instituted on 1121959 for recovery of possession of the suit property with mesne profits
The suit was decreed by the trial court on 7111960
The first appellate court by the revised judgment dated the 5th August 1961 in AS No 21 of 1961 reversed the decree
The second appeal preferred by the plaintiff was dismissed by the High Court in SA No 426 of 1965 on 3111969
However the Division Bench of the High Court allowed the Letters Patent Appeal filed by the plaintiff
It is necessary to set out few facts for the purpose of this appeal
The suit property having an extent of 13 acres and 42 12 cents originally belonged to one Dasu Reddi
He conveyed possession of the land to one Varada Reddi under an oral agreement of sale on 1071946
A deed of sale was drawn up on 1771947 but Dasu Reddi died before it could be registered
Thereafter his sons Rajaram Reddi 196 and Ramalinga Reddi executed exhibit A 1 sale deed in favour of Munisubba Reddi on 6101949
Varada Reddi aggrieved instituted OS No 78 of 1949 against Munisubba Reddi and his vendors for specific performance of the contract for sale asserting his possession in pursuance of the agreement dated 1071946
Varada Reddi died pending the suit
Mu thukrishna Reddi was impleaded as his legal representative
That suit was decreed in his favour on 13121952
The decree became final but was not executed
In the present suit the plaintiff Munisubba Reddi alleged that he was put in possession of the land by Mu thukrishna Reddi after the said decree under an arrangement evidenced by exhibit A4 dated 12121955 and while in posses sion the defendants Achal Reddi and others trespassed into the property in 1956
Achal Reddi contested the suit denying the petitioner s title and the alleged trespass and claiming that Muthukrishna Reddy had orally transferred his rights and conveyed possession to him for valuable consideration
The trial court in granting the petitioner a decree for possession found that the plaintiff s title under the sale deed of 1949 as against his vendors was made perfect and title did not pass to Muthukrishna Reddi as he did not choose to execute the decree and the petitioner was in possession within 12 years prior to the suit
It was found that the first defendant Achal Reddi has no title to the suit property and that he is not in possession of the same
The first appellate court by the judgment dated 581964 rendered after the remand considered the question of title as well as possession and held If Muthukrishna Reddi had enforced the decree in OS No 761949 for specific performance against the plaintiff and his vendors that would have put an end to the title of the plaintiff under exhibit A 1
As already stated the decree was allowed to lapse leaving the title of the plaintiff under exhibit A 1 unaf fected
The title that vested in the plaintiff on 661949 continued to remain with him thereafter for the above reasons
As against this the defence contention that the 1st defendant under an oral agreement became the owner of the properties cannot stand
My finding therefore is that the plaintiff has title to the properties under exhibit A1 The learned Judge however found that the plaintiff was not in possession of the suit land in 1955 and the plaintiff having neither 197 proved possession nor dispossession at anytime was not entitled to a decree
In SA No 426 of 1965 these concurrent findings of the trial court as well as the first appellate court on the question of plaintiff s title had not been challenged
The only question raised therein and considered by the learned Single Judge was whether the plaintiff was in possession within 12 years of suit in order to enable him to recover possession and whether for that purpose he could say that his vendors and before him Dasu Reddi were in possession of the property and consequently he could add that period to the period before 661949 the date of sale in his favour
The learned Judge was of the view that if Varada Reddi s possession was permissive then the possession should be deemed to have continued with the original owner Dasu Reddi and thereafter his sons but if on the other hand the pos session of Varada Reddi was adverse even as against the original owner the plaintiff would not be entitled to add the period before 661949 and such possession could not enure to his benefit
After referring to the decision in Annamalai Chettiar and Another vs Muthiah Chettiar and Another ILR 19651 Madras 254 the learned Judge held that Varada Reddi s possession was adverse to Dasu Reddi from 1071946 on the assumption that a sale had been effected orally even on 1071946 leaving only execution of the sale deed to be done later
This assumption of the learned Single Judge was found to be faulty by the Division Bench
The Division Bench noticed that all that the plain tiff has to prove is that he or his predecessor in title was in possession at any time between 1121947 and 1121959
If between 1121947 and 1771947 the possession of Varada Reddi was possession held on behalf of Dasu Reddi then it could be held that the plaintiff s predecessor in title had been in possession within 12 years prior to the suit
The Division Bench held that the transaction of 1071946 was in fact and in law only an oral agreement for sale and that on the assumption that it was an oral sale the learned Single Judge failed to apply the legal position as enunciated in Annamalai vs Muthiah Supra
They observed that possession as held by Varada Reddi subsequent to 1071946 and before he instituted the suit in 1949 for specific performance was in the consciousness that it was only possession on behalf of the real owner
Even if the execution of an infructuous sale deed on 1771947 by Dasu Reddi in favour of Varada Reddi is assumed to have altered the complexion of events in any manner the possession by Varada Reddi from 171946 upto 1771947 at least was clearly possession held on behalf 198 of Dasu Reddi the predecessor in title of the plaintiff
If the plaintiff s predecessor had been in possession of the suit property on 1771947 that is to say within 12 years prior to the institution of the present suit on 1121959 there can be little doubt that the plaintiff must succeed on the question of possession as well
In this view the judg ment of the learned Single Judge was reversed
There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispos session while in possession of the suit property
The first appellate court as well as the second appellate court pro ceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved
The concur rent findings that the plaintiff had title inspite of the decree for specific performance obtained against him when that decree had not been executed are not assailed by the appellant in the High Court
The appellant cannot there fore urge before us on the basis of the findings in the earlier suit to which he was not a party that exhibit A 1 sale deed is one without consideration and does not confer valid title on the plaintiff
The sole question that has been considered by the High Court is that of subsisting title
We have to consider whether the question of law as to the character of the possession Varada Reddi had between 1071946 and 1771947 is adverse or only permissive
In the case of an agreement of sale the party who obtains possession acknowledges title of the vendor even though the agreement of sale may be invalid
It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession
The well settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recogni tion of the owner s title his possession will not be regard ed as adverse in law even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is refera ble to a lawful title
The purchaser who got toto possession under an executory contract of sale in a permissible charac ter cannot be heard to contend that his possession was adverse
In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer both parties stipulating for a total divestiture of all the rights of the transferor in the property and in case in which there is a mere executory agreement of trans fer both parties contemplating a deed of transfer to be executed at a later point of time
In the latter case the principle of estoppel applies estopping the transferee from contending that his possession while the contract remained executory in stage 199 was in his own right and adversely against the transferor
Adverse possession implies that it commenced in wrong and is maintained against right
When the commencement and continu ance of possession is legal and proper referable to a contract it cannot be adverse
In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former s title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title
The purchaser s possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor
The position is different in the case where in pursuance Of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property
In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether
The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person
So far as the vendor is concerned both in mind and actual conduct there is a total divestiture of all his right title and interest in the property
This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property
On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself
The correctness of the decision in Annamalai vs Muthiah supra cannot therefore be doubted
The parties are concluded by the finding of the Division Bench that the transaction of 1071946 between Dasu Reddi and Varada Reddi is only an agreement for sale and not an oral sale of the property
If that be so the possession of Varada Reddi in pursuance of such an agreement of sale and in the expectation that there would be a com plete divestiture of all the rights of the owner in his favour on execution of a regular sale deed until the execu tion of the sale deed 200 was only possession on behalf of Dasu Reddi
Such possession having been within a period of 12 years prior to the present suit the plaintiff succeeds in having established the possession of his predecessor ininterest within 12 years prior to the date of the suit
The plaintiff is therefore entitled to a decree in his favour
The decision of the Letters Patent Bench of the High Court is correct and we confirm the same
The appeal is accordingly dismissed with costs
GN Appeal dismissed


Summary:
In these appeals on the question whether section 15 as amended of the Rajasthan Imposition of Ceiling on Agricul tural Holdings Act 1973 was violative of Article 14 of the Constitution of India
Dismissing the appeals this Court HELD Rajasthan Imposition of Ceiling on Agricultural Holdings Act 1973 was a legislation which was made for the purpose of bringing about agrarian reforms
The provisions of the Act including section 15 as amended are protected by Article 31A1a of the Constitution
Therefore the attack that section 15 of the Act was violative of Article 14 of the Constitution does not survive
The High Court was right in upholding the validity of section 15 of the Act
247B C D Bansidhar vs State of Rajasthan   followed