JUDGMENT [ENTITY], J.
1. The leading facts of this second appeal may be stated below:
2. The defendant respondent No. 4 [ENTITY] (since deceased, now represented by legal representatives, obtained loan from State Bank of Jhalawar after mortgaging the suit shop. Since the loan amount remained unpaid, therefore, proceedings for effecting recovery came to the initiated under the [ACT] (for short, [ACT]. On receipt of request from the Recovery Officer (defendant No. 3), the Collector, Jhalawar issued a notice under [SECTION] of the [ACT], which was stated to be served on defendant [ENTITY] on or about 24.[SECTION].1954. Thereafter, [ENTITY] filed a petition (Ex.A/5) on 20.9.1954 and denied his liabilities under [SECTION] of the [ACT]. However, the Collector made the certificate absolute on 19.1.1956. Feeling aggrieved by the order of the Collector dated 19.1.1956, defendant [ENTITY] resorted to the provisions of [SECTION] of the [ACT] by filing an appeal before he Revenue Appellate Authority. It may be noted that in the meantime, defendant [ENTITY] executed an agreement to sell Ex.1 on 2[SECTION].9.1956.
3. Ultimately, the suit shop was auctioned on 2[SECTION].10.196[SECTION] in favour of defendant appellant [ENTITY] for a sum of Rs. 41 DO/-. The auction purchaser deposited l/4th of the auction price on 29.10.6[SECTION] and 3/4th on 26.11.196[SECTION].
4. On 2[SECTION].1.1969, Advocate for plaintiff respondent [ENTITY] issued a notice (Ex.6) under [SECTION] [ACT] to the Collector and Recovery Officer, Jhalawar and thereafter [ENTITY] filed a suit for declaration on 30.7.1969. In para 2 of the plaint, the plaintiff has averred that he has purchased the suit shop from defendant [ENTITY] on 2[SECTION].9.1956 and since then he has been in possession as owner of the shop. On this premise, the plaintiff sought declaration to the effect that plaintiff is the owner and in possession of the disputed shop detailed out in para 1 of the plaint. He further sought declaration to the effect that attachment and auction proceedings initiated by the defendants No. l and 2, namely State of Rajasthan and Recovery Officer respectively are illegal and void.
5. The defendants denied the averments made in the plaint by filing written statements. The learned trial Court, on the basis of pleadings of the parties, framed issues and at the conclusion of trial and on consideration of evidence dismissed the plaintiff's suit with costs vide its judgment and decree dated 6.3.1979, holding that by virtue of agreement Ex.1 which was reduced in writing on a plain paper and was not registered in favour of plaintiff [ENTITY], cannot be considered to be the sale of the suit property. It was further held that the alleged agreement to sell Ex.1 was void in view of the provisions of [SECTION] of the [ACT].
6. Feeling aggrieved by the aforesaid judgment and decree, the plaintiff filed an appeal before the learned District Judge, Jhalawar, which came to be decided by the learned Civil Judge. The lower appellate court vide its judgment and decree dated 2.1.19[SECTION]2 accepted the plaintiff's appeal and quashed the judgment and decree passed by the learned trial Court. The appellate Court declared the plaintiff as owner and in possession of the disputed shop by operation of law and held no one would be entitled to interfere with the possession of the plaintiff over the disputed shop. In reversing the judgment of the trial Court, the first appellate Court has recorded a finding that Ex.1 meets the requirements of [SECTION] of the [ACT] and on that basis the plaintiff has acquired proprietary right under [SECTION] of the [ACT].
7. The defendant [ENTITY], feeling aggrieved by the judgment and decree passed by the appellate Court preferred second appeal before this Court in Second Appeal.
[SECTION]. During pendency of appeal, defendant appellant [ENTITY] expired and he is now represented by his legal representatives.
9. This Court while admitting the second appeal on 2.12.2005 formulated following substantial questions of law for decision in he appeal:
(1) Whether the respondent No. 1 is entitled to take benefit of the said void agreement of sale dated 2[SECTION].9.56 for claiming any right in this suit property?
(2) Whether on the basis of the alleged void Agreement of sale dated 26.9.56, respondent No. l can claim any right to file any suit as a plaintiff under [SECTION] of the [ACT]?
(3) Whether [SECTION] of the [ACT] only debars the Transferor from enforcing against the transferee any right in the suit property or other person such as appellant and State Bank of Jhalawar, are also debarred from enforcing their right in respect of the suit property?
(4) Whether after service of notice Under [SECTION] of he [ACT] on the defaulter [ENTITY], there subsisted any right in favour of the said defaulter [ENTITY] to enter into an agreement of sale dated 2[SECTION].9.56 and whether respondent No. l could claim any right by adverse possession on the basis of the said document against the State Government or the State Bank of Jhalawar by afflux of alleged period of 12 years from 2[SECTION].9.56?
10. I have heard learned Counsel for the parties and gone through the impugned judgment and the evidence on record.
11. The first question that requires consideration is whether the proceedings for effecting recovery of unpaid loan advanced by the State Bank of Jhalawar to defendant respondent [ENTITY] could be initiated under the [ACT]? The answer would be in affirmative. The loan due to the Bank is a "public demand" and it was legally recoverable under the [ACT]. Reference may be made to a decision of the Apex Court in [PRECEDENT] , wherein it has been held that a loan due to the Jhalawar State Bank which was payable by the debtor under the application for loan and receipt for the money advanced, is after the merger of the Jhalawar State a "public demand" within the meaning of Section 2(5) read with Schedule Clause (6) of the Act is legally recoverable under the Act.
12. In the case at hand, the plaintiff is claiming himself to be the owner of the suit shop and trying to defeat the rights of true owner of the property and therefore the plaintiff respondent was required to clearly plead and establish all facts necessary to establish his adverse possession. In [PRECEDENT] , their Lordships of the Supreme Court have held as under:
In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long the won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title o the true owner, it is well settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
13. It has now to be seen whether the plea of adverse possession was raised by the plaintiff in his plaint and if not, what would be its effect? A perusal of the averments made in the plaint makes it crystal clear that plaintiff respondent [ENTITY] has claimed ownership and title over the suit shop only on the basis of agreement to sell Ex.1. He has no where pleaded that he acquired right or title over the suit shop by adverse possession.
14. In [PRECEDENT] , their Lordships of the Supreme Court have considered the effect of non-pleading of any overt act to show adverse possession, propounded as under:
but nowhere has he pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs, and his being in possession openly and hostilely. It is true that some evidence, basically of Municipal register entries, were inducted to prove the point but no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party
15. In the case at hand, the plaintiff neither took a categorical plea of adverse possession in his plaint nor any issue was framed and seemingly the same was not insisted upon by the plaintiff respondent, it is well settled that adverse possession is a question of fact which has to be specifically pleaded and proved. In this view of the matter, I fail to understand as to how the first appellate Court could hold that the plaintiff respondent had perfected his title by way of adverse possession. Reference may be made to a decision of the Apex Court in [PRECEDENT]. , wherein it was held that adverse possession is a question of fact which has to be specifically pleaded and proved.
16. It is well settled that plaintiff filing a title suit should be very clear about the origin of title over the property and he must specifically plead it. Whether the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. In the instant case defendant [ENTITY] was owner of the property. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Reference may be made to the case of [PRECEDENT] (supra), wherein it was been held that "a plaintiff filing a title suit should be very clear about the origin of title over the property, he must specifically plead it. Earlier decision in [PRECEDENT] was also referred. Thereafter what was ruled in [PRECEDENT] was quoted:
Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.
It was then held that the plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
17. It is an admitted case of the plaintiff that defendant [ENTITY], in part performance of agreement Ex.1, handed over possession of the suit shop to the appellant and therefore, in this fact situation the question that falls to my consideration is whether the plaintiff could claim title by way of adverse possession? In [PRECEDENT], their Lordships of the Supreme Court, while considering the provisions of [SECTION] of the [ACT] in some what similar circumstances, propounded as under:
As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plea and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the later had acquiesced to his illegal possession during the entire period of 12 years, i.e. upto completing the period of his title by prescription nee vi nee clam nee precario. Since the appellant's claim is founded on [SECTION] it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit, thereby the plea of adverse possession is not available to the appellant.
1[SECTION]. Again in [PRECEDENT] , their Lordships have propounded as under:
It is also to be stated that the pleas of adverse possession and retaining the possession by operation of [SECTION] of the [ACT] are inconsistent with each other. Once it is admitted by implication that the plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land.
19. The above view has again been reiterated in [PRECEDENT]. and in [PRECEDENT]. .
20. It must therefore, be held that the plaintiff admittedly came into possession of the suit shop by way of part performance of Agreement Ex.1, which was a permissible possession. Once the plaintiff's possession was by virtue of part performance of agreement, it is not open to him to take a plea that he acquired title by adverse possession.
21. As stated above, it is evident that plaintiff respondent neither asserted the plea of adverse possession nor any issue was framed by this trial Court in this regard. Further, none of the parties lead any evidence on the point. The learned appellate Court, in my considered view, by erroneously making out an altogether new case which had not been even pleaded and on which no evidence had been led by either of the parties, set aside the judgment and decree passed by the trial Court and decreed the suit filed by the plaintiff.
22. A glance at the judgment of the first appellate Court further reflects that in decreeing the plaintiff's suit, the provisions of [SECTION] of the [ACT] have been applied by it. [SECTION] of the [ACT] deals with extinguishment of right to property. It provides as under:
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
23. Having relied upon the above provision, the first appellate Court has recorded a finding that question of limitation would arise from the date the documents Ex.1 was written and signed. This document was written on 2[SECTION].9.56 and on the basis of this document the plaintiff has been in possession of the property in the capacity of owner and since he had adverse possession against all the persons till 27th September, 195[SECTION] and therefore, the plaintiff would be owner by operation of law and that defendant [ENTITY] and others have lost their rights on account of expire of limitation period.
24. While deciding issue No. 3 the first appellate court has also recorded a finding that plaintiff became owner in the year 196[SECTION] by operation of law. It may be stated that plaintiff was tenant in the suit shop prior to execution of agreement of sale Ex.1 and his possession could not be said to be adverse. This Court in [PRECEDENT] has held that rule is well settled that so long as relationship of landlord and tenant subsists, the tenant cannot set up any title by adverse possession, however notoriously he may proclaim title in himself and deny the title of the landlord.
25. The limitation of adverse possession with regard to State Government was 60 years prior to the amendment and now after amendment it is 30 years. The suit in the instant case was filed on 30.7.1969 and therefore, the time period against the State Government had not expired on the date of filing of the suit.
26. As already held above that plea of adverse possession is not available to the plaintiff, therefore, the provisions of [SECTION] of the [ACT] has no application whatsoever in the instant case. For the reason therefore, the above finding of the learned first Appellate Court is liable to be reversed and it is reversed accordingly.
27. Admittedly, the agreement of sale Ex.1 was written on a plain paper and remained unregistered. As such no right, title or interest in the suit shop could legally be acquired on the basis of such a document which was written on a plain papers and has not been got registered. It is true that plaintiff acquired possession over the suit shop in part performance of agreement Ex.1 and therefore, at the most the plaintiff could avail the benefit of [SECTION] of the [ACT] only as a shield and not as a sword, inasmuch as [SECTION] cannot be said to confer a right of action on a transferee in possession under an unregistered contract of sale and so that it is not permissible for him to institute a suit. This Court, having considered the provisions of [ACT] in [PRECEDENT] has held as under:
The effect of [SECTION] is to provide that the transferee will be able to protect his possession against the transferor if the requirements of [SECTION] are fulfilled. The protection is statutory, but it is of limited important and efficacy for it has to be confined to the wordings of the statute. The statue as has been stated raises a bar against the transferor inasmuch as it debars him from "enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession. The section does not therefore give to the transferee a right of action for a suit, including a so called defensive suit for restoration of possession forcibly taken by the transferor or for injunction or compensation."
2[SECTION]. Reference may also be made to [PRECEDENT]'s case (supra) wherein it has been held that even otherwise, a transferee can avail of [SECTION] only as a shield but not as a sword.
29. It is evident from the evidence on record that under the provisions of [ACT], a certificate under [SECTION] in respect of recovery of loan due against defendant [ENTITY] was issued prior to the execution of agreement Ex.1 and therefore, in view of the provisions of [SECTION] of the [ACT], defendant [ENTITY] was not entitled to enter into an agreement to sell ex.1 within the plaintiff respondent. I am fortified in my view by two decisions of Division Bench of Patna High Court and Calcutta High Court in [PRECEDENT] and [PRECEDENT] . The provisions under consideration before the Division Benches were the [ACT] and Bengal [ACT] ([SECTION] of 1913) respectively. The provisions of [ACT] in the above two cases are in pari materia with the provisions of [ACT]. Considering the provisions of [SECTION] and [SECTION] of [ACT], the Division Bench of Patna High Court held as under:
From and after the service of notice of any certificate under [SECTION] upon a certificate debtor, any private transfer or delivery of any of his immovable property situate in the district in which the certificate is filed, or of any interest in any such property, shall be void against any claim enforceable in execution of the certificate. The release of the under-tenure (the subject mater, of certificate proceeding) by the common manager appointed under [SECTION], [ACT], on behalf of the [ENTITY], after the receipt of notice, is therefore, void under the provisions of [SECTION] of the [ACT].
30. Similar view has been taken by the Division Bench of Calcutta High Court in [PRECEDENT]'s case (supra). It must therefore, be held that defendant [ENTITY], in view of the provisions of [SECTION] of the [ACT], was not entitled to execute an agreement in favour of plaintiff after issuance of certificate under [SECTION] of the [ACT] and accordingly, the transfer of property shall be void against any claim enforceable in execution of the certificate.
31. In view of above, it must be held that the finding of the first appellate Court that plaintiff was in possession of the suit shop by operation of law is perverse and is liable to be reversed. The plaintiff prior to execution of agreement of sale Ex.1 was in possession of he suit shop as tenant and has claimed ownership only through agreement of sale Ex.1 which was on a plain paper and was not registered in his favour.
32. The substantial questions of law as formulated by this Court while admitting the appeal stand decided in favour of the appellant.
33. Consequently, the appeal is allowed. The judgment and decree passed by the learned first appeal court are set aside and suit of the plaintiff is dismissed, with no order as to costs.