RSA 41/2003 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL JUDGEMENT AND ORDER This second appeal is directed against the Judgment and Decree dated 20.09.2002 passed by the learned Civil Judge, Senior Division No.1, Cachar, Silchar in Titl e Appeal No.11 of 1999, affirming the judgment and decree passed by the learned Civil Judge, Junior Division No.2, Cachar, Silchar in Title Suit No. 51 of 1992 in favour of the plaintiffs. In this way this appeal has been filed by the defen dant against concurrent decrees. 2. Heard Mr. I H Laskar, learned counsel for the appellant and Mr. B C Das, learned Senior counsel for the Respondents/ plaintiffs. 3. While admitting the appeal on 08.04.2003, the following substantial ques tions of law were framed by this Court: 1. Whether the learned Courts below are justified in decreeding the suit wi thout a finding that the sale deeds Ext. 1 and Ext. 2 are proved and conveyed va lid title with delivery of possession of the suit land to the transferee plainti ffs? 2. Whether the suit is barred by limitation as the plaintiffs failed to pro ve that they or their vendor had come into possession of the suit land within 12 years of their purchase? 3. Whether after withdrawing the title Suit No. 57/96 vide Ext. A, the plai ntiffs were entitled to file the present suit taking new plea of tenancy.? 4. During the course of hearing, Mr. Laskar, learned counsel for the appell ant did not press issue No.1. He confined his argument on Issues Nos. 2 and 3. 5. Before answering the questions raised in this second appeal, it would be just and proper to give a glance over the facts of the case, which are summaris ed below: 5.1. The suit land originally belonged to one Duman Mia and on his death his son Ismail Mia inherited the property. One Ram Prasad Rabidas was the tenant und er Duman Mia and after his death under Ismail Mia. The appellant Motilal Rabidas is the son of the said tenant i.e. late Ram Prasad Rabidas and on his death his legal heirs have been brought on record. 5.2. The Appellant/defendant was possessing the land on oral settlement. He p aid the rent to the land owner till March, 1971. However, without any intimation to the appellant , Ismail Mia sold out the land to one Digendra Nararan Rout b y executing a sale deed on 18.11.1969. The said Digendra Narayan Rout in turn ag ain sold out the land to the plaintiff, namely Ravindra Kumar Choudhury and Gope ndra Kumar Choudhury, through registered sale deed on 31.08.1974 ( Exhibit-I). 6. It may be mentioned here that neither the tenant was informed about tran sfer of interest in the suit land by successive land owners nor the tenant had f ormally atorned the purchaser as his landlord. While predecessor in interest of the appellants was occupying the land without paying rent, either to the origina l land owner or to the purchasers, the Respondents filed a suit in the year 1986 for evicting the tenant on the basis of their purchase of the suit land. The sa id Title Suit land was registered as T.S No. 57 of 1986 in the Court of the Ass istant District Judge No. 2 , Cachar , Silchar. After making his appearance in t he former suit, late Motilal Rabidas filed his written statement and took a stan d that he was occupying the suit land not as a licensee under the original land owner but as a tenant. Having come to know about this fact, the plaintiffs filed an application under Order 23 Rule 1 (3) of the Code of Civil Procedure 1908, seeking leave of the court to withdraw the suit with leave to file a fresh suit. The said prayer was allowed vide order dated 09.07.1991. Thereafter, the respon dent filed fresh suit being Title Suit No. 51/ 92, praying for a decree of righ ts and title over the suit land and also a decree of eviction of the defendant a nd other consequential reliefs. The said suit was decreed on contest and the dec ree was also upheld by the First Appellate Court. Hence, this second appeal. 7. Sri Laskar, learned counsel for the appellant has assailed the impugned decrees on two planks. His first contention is that after the sell of the suit l and by Ismail Mia, his tenancy came to an end as per Section 111 (c) of the Tran sfer of Property Act. 1982 and he assumed the character of land owner since the suit was filed after 12 years of uninterrupted and peaceful possession. In othe r words the appellants are defending their rights over the suit land on the prin ciple of adverse possession . The second argument is that in the former suit i. e. Title Suit No. 57/ 1986, the plaintiffs had pleaded that the defendants was t heir licensee and as such, the plaintiffs/Respondents should not have been allow ed to change the nature and character of the suit, pleading that the defendant w as their tenant and he had defaulted in payment of the rent. 8. Learned Counsel for the appellants cited the judgment of Hon’ble Supreme Court rendered in the case of Nair Service Society - Vs- K C Alexander ( AIR 1968 SC 1165) to buttress his argument that a person in possession of land in a ssumed character of owner and exercising peaceably the ordinary rights of owne rship has a perfectly good title in rem, but the rightful owner. There is no dis pute about this legal proposition but the fact of peaceful possession as land-ow ner has to be proved through evidence and it would depend upon facts and situati ons of the each case. 9. Referring to the Judgment of the Gauhati High Court in the case of Bali ram Prasad Gupta -Vs- Isa, reported in 2007 (2) GLT 26 and in the case of Far uque Rahim -Vs- Akbari Begum, reported in 2007 (3) GLT 182, the learned counsel for the appellant submitted that to create a relationship of landlord and tenan t, there must be an agreement and in terms of such agreement, the tenant must ag ree and pay rent to the land owner. However, as contended by the learned counsel , there was neither any agreement with the plaintiffs nor the defendant paid any rent to them and as such the suit ought to have been dismissed for non- fulfilm ent of the essential condition to evict the tenants. 10. Lastly, the learned counsel for the appellant also relied upon the Hon’b le Supreme Court judgment, rendered in the case of Basant Singh -vs- Janaki Si ngh ( AIR 1967 SC 341) , to contend that an admission of a party in the plaint m ay be used as evidence against him in other suits. On the basis of this authorit y, it was argued that since the plaintiffs/ respondents had initially declared t hat the defendant was their licensee, the plaintiffs ought not to have been allo wed to make somersault and claim that defendant was their tenant. 11. Per contra Sri B C Das, learned counsel for the Respondent submitted tha t this second appeal is not maintainable since the questions, raised by the appe llant, are not substantial questions of law, in true sense. It was also argued t hat it is the settled position of law that a tenant is always a tenant and it is immaterial whether a tenant has been notified about the transfer of interest i n the property or not. This submission was made on the basis of a Judgment of t he Gauhati High Court rendered in the case of Mohammand Mazid Mir -vs- Kalpana S aikia; 1999 1 (GLR) NOC (29) and also on the basis of Section 109 of the T.P.Ac t. 12. In a series of judgments, the Hon’ble Supreme Court has held that whi le invoking jurisdiction, conferred under section 100 Code of Civil Procedure, t he High Court should be satisfied that the case involves substantial questions of law and not mere questions of law . [Hero Vinoth -vs- Seshammal ; (2006) 5 SCC 545] . Their Lordships have further held that the general rule is t hat High Court do not interfere with the concurrent findings of the court below, except on well recognized exceptions, like total ignorance of material evidence ; drawing wrong inference from the proved facts by applying the law erroneously and / or wrongly casting burden of proof upon a party. 13. In the case of Santosh Hazari -vs- Puroshottam Tiwari (2001) 3 SSC 17 9 and relied upon by the learned counsel for the Respondents , it has been held that the first appellate court is the final Court of facts and law and its deci sion is no longer assailable before the High Court, unless it involves substant ial questions of law. 14. In the case of Gurdev Kaur -vs- Kaki, reported in 2007 1 SSC 546 , the S upreme Court has virtually issued stricture against the High Courts for invoking Section 100 CPC in appeals not attracting any substantial question of law. 15. The first issue raised before me virtually revolves around the theory of ’adverse possession’. In this regard, learned counsel for the Respondents cited the Judgment of Hon’ble Supreme Court rendered in the case of Amarendra Pratap S ingh -vs- Tez Bahadur Prajapati (2004) 10 SSC 15. The relevant observations of t he Hon’ble Supreme Court in this regard are reproduced below : Every possession is not, in law, adverse possession. Under Article 65 of the Li mitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of twelve years calcula ted from the date when the possession of the defendant becomes adverse to the pl aintiff. By virtue of Section 27 of the Limitation Act, on the determination of the period limited by the Act to any person for instituting a suit for possessio n of any property, his right to such property stands extinguished. The process o f acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title on to himself and such prescription having continued for a per iod of twelve years, he acquires title not on his own but on account of the defa ult or inaction on the part of the real owner, which stretched over a period of twelve years, results in extinguishing of the latter’s title. It is that extingu ished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrongdoing of a person in wrongful poss ession; it pronounces the penalty of extinction of title on the person who thoug h entitled to assert his right and remove the wrongdoer and re-enter into posses sion, has defaulted and remained inactive for a period of twelve years, which th e law considers reasonable for attracting the said penalty. Inaction for a perio d of twelve years is treated by the doctrine of adverse possession as evidence o f the loss of desire on the part of the rightful owner to assert his ownership a nd reclaim possession. 16. In the case before me, the plaintiffs had purchased the land on 31.8.197 4 and they had instituted the suit in the year 1986. There was no dispute from t he side of the appellant that this former suit was within 12 years. In this way the possession of the suit land, without payment of any rent was challenged wit hin the statutory period and, as such, it cannot be said that the defendant’s p redecessor-in-interest had occupied the land peacefully and uninterruptedly to take a view that the plaintiffs right had extinguished and the defendant had be come the owner of the land on the principle of adverse possession. 17. Since both the parties have taken refuge under certain provisions of law , particularly under Section 111 and 109 of the CPC, it is proper to reproduce t hose provisions of Sections: 109. Rights of lessor’s transferee.-If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in th e absence of a contract to the contrary, shall possess all the rights, and, if t he lessee so elects, be subject to all the liabilities of the lessor as to the p roperty or part transferred so long as he is the owner of it; but the lessor sha ll not, by reason only of such transfer, cease to be subject to any of the liabi lities imposed upon him by the lease, unless the lessee elects to treat the tran sferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be li able to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proporti on of the premium or rent reserved by the lease is payable in respect of the par t so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the prop erty leased. 111. Determination of lease :- A lease of immoveable property determines:- (c ) where the interest of the lessor in the property terminates on, or is power to dispose of the same extends only to, the happening of any event- by the happening of such event; 18. It is true that under Section 111(c) a lease automatically terminates wh en the interest of the lesser upon the property terminates or he looses the powe r to dispose the said property by way of sale of property etc. However, Section 111(c) of the Transfer of Property Act cannot be read in isolation. To say it di fferently it has to be read harmoniously with Section 109, which prescribes that upon transfer of the property the transferee acquires all the rights of the tra nsferror. 19. In my considered opinion, by virtue of section 109 of the T P Act, the p laintiffs became the land owner and the defendant their tenant, even after the d efendants tenancy with the original landlord terminated under section 111(c) . A ccordingly, I hold that the submission of the learned counsel for the appellants that the defendant could not have been treated as tenant under the plaintiffs i s untenable in law. 20. With regard to the second issue as to whether the plaintiffs could have changed their stance claiming that, defendant was their tenant and not a license e; I am of the view that essentially this is not a substantial question of law. Even otherwise in the former suit, the plaintiffs might have stated that the def endant was their licensee, since there was no agreement with the defendant. In other words, the defendant might have been termed as licensee on assumption. How ever, the moment the defendant claimed and informed the plaintiffs that he was t he tenant of original landlord Ismail Mia, the plaintiffs accepted the said posi tion and filed the suit on the ground of default in payment of rent, with due no tice. I have already held earlier that by virtue of Section 109 of the Transfer of Property Act, the defendant had become the tenant under the plaintiffs by ope ration of law. 21. In view of the aforesaid reasoning, I hold that neither the impugned jud gments suffer from perverse findings nor is there any patent illegality and, as such, the second appeal has no merit. 22. Accordingly, the appeal stands dismissed. The impugned Judgments and dec rees are hereby affirmed.