BISWANATH AGARWALLA versus SABITRI BERA & ORS.

Citation: [2009] 12 S.C.R. 459 · Decided: 04-08-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 12 S.C.R. 459 
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BISWANATH AGARWALLA 
A 
V. 
SABITRI BERA & ORS. 
(Civil Appeal No. 5085 of 2009 etc.) 
AUGUST 4, 2009. 
B 
[S.B. SINHA AND DEEPAK VERMA, JJ.] 
+ 
Suit - Suit for eviction - Defendant claiming to be put in 
possession of suit property by predecessor-in-interest of 
plaintiff by virtue of sale - Defendant also taking plea of c 
adverse possession before appellate court - Suit dismissed 
by trial court on the ground that tenancy not proved - Decreed 
by first appellate court on the basis of general title of plaintiff 
- In second appeal, substantial question of law not framed -
Suit decreed holding that defendant was trespasser - No 
D 
.. 
issue as regards trespass was framed - On appeal, held: 
Issue as regards trespass was required to be framed - Non-
framing of the issue prejudiced the defendant - High Court 
was also required to frame substantial question of Law -
Direction issued to plaintiff to amend the plaint seeking 
E 
eviction on the ground of trespass - Constitution of India, 
1950 - Article 142. 
Respondent No. 1 filed a title suit inter alia praying 
for eviction of the appellant from the suit premises 
F 
claiming to be owners and landlords of the suit premises. 
Appellant denied his tenancy and claimed that he was put 
in possession of the suit property, by the predecessor-
in-interest of the plaintiff-respondent, by virtue of sale. 
Trial Court held that though plaintiff had proved his 
+ 
ownership and defendant failed to prove his ownership, 
G 
but as the plaintiffs failed to prove the tenancy, they were 
not entitled to decree. First appellate court decreed the 
suit on the basis of general title of the plaintiffs. High 
Court, in second appeal decided in favour of the plaintiffs 
453 
H 
460 
SUPREME COURT REPORTS 
[2009] 12 S.C.R. 
A on the ground that the defendant was a trespasser. No 
issue was framed by trial court in that regard. 
In appeal to this Court, it was contended inter alia 
that no substantial questions of law were formulated by 
B High Court. 
Allowing the appeals, the Court 
Held: 1.1. An issue as to whether the defendant was 
a trespasser or not, was required to be framed. It is not, 
+ 
c a case where by non-framing of an issue as to whether 
the defendant-appellant was a trespasser or not, he was 
not prejudiced. Had such an issue been framed, he could 
have brought on record evidence to establish that he had 
the requisite animus possidendi, particularly in view of the 
D fact that it has been held by the courts below that he was 
not put in possession by the predecessor-in-interest of 
the plaintiffs in terms of an agreement for sale or 
otherwise. If he has not been able to prove the agreement, 
he could have taken the other plea, i.e., he has acquired 
E indefeasible title by adverse possession. He is said to 
have been in possession of the suit premises for more 
than twelve years prior to the institution of the suit. The 
question as to whether he acquired title by adverse 
_. 
possession was a plausible plea. He, in fact, raised the 
F 
same before the appellate court. [Paras 20] [476-A-D] 
1.2. In terms of West Bengal Premises Tenancy Act, 
1956, the tenant upon termination of tenancy does not 
become a trespasser. He becomes a statutory tenant 
(loosely called). When, however, a defendant is a 
G trespasser and is sued as such, the situation would be 
totally different. Plaintiff must file a suit having regard to 
the cause of action thereof. [Para 19] [475-F-G] 
Gautam Sarup v. Leela Jetty and Ors. (2008) 7 SCC 85; 
H 
BISWANATH AGARWALLA v. SABITRI BERA & ORS. 461 
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Bhagwati Prasad v. Shri Chandramaul (1966) 2 SCR 286; 
A 
Shri Ram and Anr. vs. Smt. Kasturi Devi and Anr. AIR 1984 
Allahabad 66; Hajee Go/am Hossain Ostagar vs. Sheik Abu 
Bakkar AIR 1936 Calcutta 351, referred to 
1.3. The landlord in a given case although may not 
8 
be able to prove the relationship of landlord and tenant, 
but in the event he proves his general title, may obtain a 
decree on the basis thereof. But in a case of this nature, 
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as in the present case, a defendant was entitled to raise 
* 
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a contention that he had acquired an indefeasible title by 
C 
adverse possession. [Para 17] [470-F-G] 
Radha Devi and Ors. v. Ajay Kumar Sinha 1998 (2) 
BLJR 1061; Champa Lal Sharma v. Smt. Sunita Maitra 
(1990) 1 BLJR 268; Deepak Kumar Verma and Ors. v. Ram 
Swarup Singh 1992 (1) BLJR 102, referred to. 
D 
2. The High Court while determining the issues 
involved i

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