Case: NAND RAM (D) THROUGH LRS. &amp; ORS Vs. JAGDISH PRASAD (D) THROUGH LRS

2. The appellants-plaintiff No. 1 and plaintiff Nos. 2 to 8, as legal heirs of one Bhagwana, filed a suit for possession asserting that they were owners in possession of land measuring 3 Bighas 11 Biswas comprising in Khasra No.9/19 and land measuring 1 Bigha 16 Biswas comprising in Khasra No. 9/20/2, total measuring 5 Bighas 7 Biswas in the revenue estate of Village T atarpur, Delhi3. The land measuring 1 Bigha 19 Biswas out of Khasra No. 9/19 and 16 Biswas out of Khasra No. 9/20/2, in total measuring 2 Bighas 15 Biswas was taken on lease for 20 years commencing from 23 rd September, 1954 till 22 nd September, 1974 on payment of Rs.235/- per year by Jagdish Prasad, the defendant. It was agreed between the parties that it will not be open to the plaintiff-lessor to seek ejectment of the defendant-lessee from the leased premises, however, if the rent for one year remained in arrear, then the lessor would have the right to eject the lessee. The relevant conditions read as under:7. Before the expiry of said lease it shall not be within the rights of the lessor i.e., party of the First Part to seek ejectment of party of the second part from the leased premises9. If rent for one year remains in arrears, then in that eventuality the lessor i.e., party of the First Part will have the right to eject the lessee i.e., party of the Second Part from the property leased and the party of the Second Part will remove all his malba from the land leased and deliver vacant possession to the party of the First Part4. The entire leased land was acquired pursuant to the notification dated 24 th August 1959 under Section 4 of the Land Acquisition Act, 1894 (for short, Act) . The Land Acquisition Collector determined a sum of Rs.28,284.85 as the market value of the land acquired including the super structure upon it. A dispute arose with regard to apportionment of compensation and the same was referred to the Reference Court. In such proceedings, three sets of claims were raised, one by the appellants as owners of the land, another by Ram Chand and Jagdish Prasad, as lessee of the land and certain other persons in occupation of the hutments on the land acquired. The defendant-respondent claimed apportionment of compensation in lieu of his lease-hold rights by raising a claim under Section 30 of the Act. The relevant paras from such claim petition filed by the defendant read as under:1. That Shri Nand Ram and Shri Bhagwana sons of Lakhi Ram were the owners of land comprised in Khasra Nos.9/19 and 9/20/2 situated at Mauza T atarpur, Delhi State2. That the said Shri Nand Ram and Shri Bhagwana leased out land measuring 1 bigha 19 biswa out of Khasra No. 9/19 and 16 biswa out of Khasra No.9/20/2 to Shri Jagdish Prasad s/o Shri Daurilal, resident of T atarpur the claimant herein for a period of twenty years by lease deed dated 22.9.54 and registered on 11.10.545. The respondent-defendant claimed share in the compensation for 2 Bighas 15 Biswas of land on the ground that they were deprived of the right to retain possession of that land for the unexpired period of 14 years of the lease in their favour, which was for 20 years in total. The Reference Court framed the following issues to determine the claim of rival claimants:1. Whether Jagdish and Ram Chand mentioned at Items No.27 and 28 are entitled to any share of the compensation awarded for land measuring 2 Bighas and 15 Biswas which was on lease with them and if so, to how much?2. Whether Nand Ram and Bhagwana have any lien on Rs.2263.20 for the structure belonging to Jagdish and Ram Chand. If so, in what manner and to what extent?3. Whether the Jhugis on the land measuring 2 Bighas and 15 Biswas leased out in favour of Jagdish were built by Dharam Chand etc. at their own expenses and they are entitled to receive the compensation in respect of their Jhuggis?6. The learned Additional District Judge, in such reference, in its award dated 21 st October, 1961 (Ex.PW1/12), held that the respondent had not paid rent for more than 12 months and, thus, in accordance with clause 9 of the lease deed, the lease had come to an end. Therefore, the defendant had no right to claim a share in the compensation payable for the land leased to them. The Reference Court held as under:8. Jagdish Chand as R.W.4 has admitted that he did not pay any rent to Nand Ram and Bhagwan after the receipt of the notice for acquisition of the land. Nand Ram as A.W.2 has state rent has not been paid to him for two years and that he served a notice also on the lessee. Under clause 9 of the lease deed Ex.A/15, the lease is to come to an end in case rent is not paid for 12 months. From the evidence on the record it is proved that Ram Chand and Jagdish have not paid rent for more than 12 months and thus in accordance with clause 9 of the lease deed their lease had come to an end and therefore they have no right to claim a share in the compensation payable for the land leased out to them. I decide this issue against Jagdish Prasad and Ram Chand7. It may be stated that a part of the land acquired, comprising in Khasra No.9/19 was de-notified vide notification dated 18 th June, 1961 under Section 48(1) of the Act. Such land, measuring 1 Bigha 19 Biswas continued to be in possession of the defendant-lessee i.e. respondent herein8. Thereafter, the plaintiffs served a notice dated 12 th February, 1981 claiming possession of the land comprising the aforementioned Khasra No. 9/19, measuring 1 Bigha 19 Biswas, i.e. the land leased that continued in possession with the defendant post the de- notification. The suit was filed by the plaintiffs on 13 th March, 1981. In the written statement filed by the defendant, it was asserted that the land which was in possession of the defendant did not form a part of the alleged lease deed and that the defendant was in possession of this land in his own legal right. The defendant contended that if the plaintiffs had any right in the land in possession of the defendant, then the defendant had become the owner of the land in question by adverse possession. It was pleaded as under:10. That the land in possession of defendant does not lie in the alleged khasra no. and is not covered by any alleged lease deed. Without prejudice to this plea in alternative it is submitted that the lease, if any, has already come to an end, about more than 22 years back, and defendant is owner in possession in his own rights9. The learned trial court decreed the suit after evidence was led by the parties. The certified copy of the original lease deed was produced as PW1/1 in respect of Khasra No. 9/19 and Khasra No.9/20. The notice regarding termination of lease as well as the revenue record was produced to prove the ownership of the plaintiffs-appellants. The trial court also referred to the award passed by the Reference Court (Ex.PW1/12) wherein the defendant- respondent had claimed himself to be a tenant. The learned trial court returned the following findings:Thus, the entire available record proves, conclusively that the plaintiffs are the owners of the suit land and that the suit land falls in Khasra No.9/19 Village T atarpur, Delhi as the land in suit is no longer under acquisition, and neither is the land in possession of the D.D.A. as is indicated by Ex.PW1/13. DW2 has been unable to deny that there has been a notification for issuance of denotification of acquisition of Khasra No.9/19 Village T atarpur, Delhi Ex.PW1/12, Ex.PW5/1, Ex.PW1/13, are all indications of admissions by the defendant that the plaintiffs are owners of the suit land and that the defendant was a lessee of the same under a registered lease deed dt.22.9.54 under Nand Ram and BhagwanaThus, issue No. 3 is decided in favour of the plaintiff and it is hereby held that the land in suit falls in Khasra No.9/19 Village T atarpur, Delhi and that the plaintiffs are the owners of the same, as mere receipt of compensation for acquisition of land which has been denotified from acquisition does not in any manner make the plaintiff any less the owners of the land in suit. In any event the plaintiffs are certainly the landlords of the land in suit in terms of Ex.PW1/14 the lease deed, executed between Bhagwana and Nand Ram, and the defendant, and execution thereof having been admitted in the claim of the defendant in Ex.PW5/110. In appeal against the said judgment and decree, the defendant moved an application under Order VI Rule 17 of the Civil Procedure Code, 1908 (for short, Code) to amend his written statement and asserted that the suit was barred by limitation under Article 66 of the Schedule to the Limitation Act, 1963 (for short, Limitation Act) . The defendant asserted that the lease had come to an end when a notice for forfeiture of termination of the lease dated 23rd September, 1954 was issued by the plaintiffs which is Ex.A-3 in the proceedings before the Reference Court. In reply to such application, the stand of the plaintiffs was that the termination of tenancy is not possible vide the said notice in view of Sections 111 and 106 of the Transfer of Property Act, 1882 (for short, TP Act) as the lease is said to be terminated w.e.f. 23 rd September, 1959 whereas the notice is required to be served for at least 15 days time expiring on the last date of tenancy month. The learned First Appellate Court did not permit the defendant to amend the written statement but the question of limitation was allowed to be raised on the basis of material available on record11. The learned First Appellate Court affirmed the findings recorded by the trial court. It did not find any merit in the argument raised by the defendant that the award passed by the Reference Court (Ex.PW1/12) produced by the appellants operated as res judicata. The First Appellate Court found that the plea of forfeiture was totally inconsistent and contradictory to the averments made in the original statement. Further, that the plea of limitation was nothing but an ingenuity of the counsel for the defendant12. Thereafter, the defendant preferred a second appeal. The High Court framed the following two substantial questions of law:1. Whether the judgment rendered by the Land Acquisition Court on 21 st August, 1961 (Ex.PW-1/12) operates as res judicata between the parties as regards the title of the suit property?2. If the first question is answered in the negative, whether the suit filed by the Respondent for possession is barred by time?13. The High Court allowed the second appeal holding that the finding recorded in the award (Ex.PW1/12) that upon non-payment of rent for 12 months, the lease had come to an end, had attained finality. Therefore, such finding would operate as res judicata. The High Court held as under:17. Ex.PW1/12 having been rendered by a court of competent jurisdiction had returned a finding that the lease between the parties stood determined as rent since the last 12 months had not been paid by the appellant/defendant. Reference to the notice dated 13.9.1960 terminating the lease had also been made. There is no dispute to this factual submission which is even otherwise a part of the record. In these circumstances, it cannot be said that this finding Ex.PW1/12 was only an incidental or obiter observation made by the Land Acquisition Court/ADJ which is not binding on the parties. Ex.PW1/12 had while adverting to the notice dated 13.9.1960 categorically held that lease between the parties stood determined in terms of clause 914. The High Court further held that period of limitation under Article 67 of the Limitation Act is 12 years, the period for which commences from the date when the tenancy is determined. Since the tenancy was determined on 23 th September, 1960, the suit filed on 13 th March, 1981 was beyond the period of limitation.

Reasoning:
27. Thus, the finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of non- payment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendants claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided28. In respect of second question of law examined by the High Court that the plaintiffs suit was barred by limitation is based upon the notice dated 23 rd September, 1960 produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex.A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of pay- ment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors.Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.