AIR 2007 SUPREME COURT 2191
(From: 2000 APHC 2029)
Civil Appeal No. 6345 of 2000,
D.18-5-2007.
M/s. Kamakshi Builders v. M/s. Ambedkar Educational Society & Ors.
(A) Specific Relief Act (47 of 1963), S. 34-Suit for recovery of possession Termination of tenancy-Tenant running school on property, claimed to have acquired ownership in property by way of oral gift- -But failed to prove oral gift- Delivery of possession not proved – Tenant did not get mutation done Nor informed educational authorities with which he was dealing- Payment of rent even after termination of tenancy not explained – Construction of large number of structures without objection by owner -Would not confer title – In absence of animus possidendi claim for title by prescription, not tenable -Title not being proved decree for recovery of possession passed against him – Proper.
(B) Evidence Act (1 of 1872), S. 115- Acquiescence or estoppel-Acquisition of title is inference of law arising out of certain set of facts- Person not acquiring title in law-Same cannot be vested only by reason of acquiescence or estop- pel on part of other.
(C) Limitation Act (36 of 1963), Art. 65 Title by prescription Claim for possession by tenant based on title – It had, therefore, no prima facie animus possidendi-Thus, claim for title by pre- scription, not tenable.
(D) Evidence Act (1 of 1872), S. 114- Presumption-Effect-Claim of title Presumption by itself would not discharge the burden of proof on claimant and would not create title.
(E) Limitation Act (36 of 1963), Arts. 67, 65 Recovery of possession – Ex- piry of lease-Tenant continued to pay rent even thereafter and did not cease to be tenant Application for possession against tenant- Limitation Art. 67 would not be attracted in a case where tenant remains a statutory tenant – In a case of this nature, Art. 65 would apply. (Para 30)
(F) Constitution of India, Art. 133 – Appeal – New plea – Respondents have raised plea of title in itself- Question in regard to jurisdiction of Civil Court has not been raised – Cannot be permitted to be raised for first time in appeal.