ARUNDHATI MISHRA Vs. SHRIRAM CHARITRA PANDEY

JUDGEMENT

(1.) LEAVE granted.

(2.) THIS appeal arises against the judgment of the Allahabad High Court in Second Appeal No. 89 of 1990 dated December 21, 1992. The facts in a nutshell are that the appellant -plaintiff basing on title laid the suit for possession and mesne profits against the respondent. The respondent was inducted into possession of M.I.G. flat allotted to her by the Lucknow Improvement Trust later renamed as Lucknow Development Authority. The rent was Rs. 30 per month. It was covenanted that the respondent should pay every month a sum of Rs. 24.50 to the L.I.T./L.D.A. and the balance to the appellant. On March 15, 1971, the appellant got issued a notice under section 106 of the T.P. Act determining the tenancy for default committed in payment of the rent. Thereon, the respondent replied that the appellant was only his benamidar and he is the real owner of the property. The appellant paid the instalments and got the sale deed executed in 1977 by L.I.T. or L.D.A. Suit notice was issued in 1978 on the ground that the denial of the appellant's title constitutes forfeiture of the tenancy which the respondent had with the appellant. The respondent reiterated in his written statement that he is the real owner and remained in possession as owner of the suit house and the appellant is only benamidar. The respondent also later filed an application under Order 6 Rule 17, CPC to add para 21 -A claiming alternatively compensation for the improvements made by him. Framing appropriate issues and on adduction of evidence, the trial Court found that the appellant has title to the property, by denial of the title, the respondent forfeited his tenancy and decreed the suit. Pending first appeal, the respondent filed another application on March 30, 1989 for amendment of the written statement setting up the plea of "adverse possession". The appellate Court rejected the application, considered the case on merits and confirmed the decree of the trial Court. In the second appeal the learned Single Judge considered and allowed the application for amendment, set aside the findings of the Court below and remitted the case to the trial Court for fresh trial. Thus, this appeal by special leave.

(3.) THE question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own light and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never, raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs.