SHYAM SUNDER DUTTAversusBAIKUNTHA NATH BANERJEE (DEAD) BY LRS. AND ORS.

                   SHYAM SUNDER DUTTA                                               A
                            v.
     . BAIKUNTHA NATH BANERJEE (DEAD) BY LRS. AND ORS.

                              SEPTEMBER 21, 1994

-            [K. RAMASWAMY AND N. VENKATACHALA, JJ.]                                B

          Tenancy Laws:

         Bengal Tenancy Act.

          Suit for partition-Appointment of Receiver-Tenants inducted by            C
    him-Receiver was discharged after the suit was decreed-Whether tenants
    inducted by him acquired tenancy rights pursuant to the tenancy created by
    him by adverse possessio7t-Held no-Finding of fact-lnteiference by High
    Court without considering the entire evidence-Held not justified.
                                                                                    D
           The 'appellant's mother filed a suit for partition of certain proper-
    ties. A Receiver was appointed· in 1933. He induc~ed the Respondents as
    tenants therein. The suit was decreed in 1940 and the Receiver was dis·
    charged in 1941.

           On attaining majority, the appellant filed a second partition suit for   E
    partition of other properties and also the suit property which was jointly
    in possession and enjoyment of the appellant and his co-sharers. He also
    filed an application for ad-interim injunction to restrain the respondents
    from interfering with his possession. The .suit was decreed.

          Thereafter a third suit was filed by the appellant when there was         F
    threat of dispossession to an extent of 2 acres and 21 cents, praying for a
    declaration that the said lands together with the gardtn and, fruit bearing
    trees belong to the appellant and his co-sharers and the respondents had
    no tenancy rights created by the Receiver and for perpetual injunction
    restraining them from interfering with their possession. The Trial Court        G
    dismissed the suit. The appellate Court decreed the suit. On appeal, the
    High Court reversed the order of the appellate Court.

         In this appeal, the question that arose was whether the respondents
    acquired any tenancy rights pursuant to the tenancy· created by the
    Receiver by adverse possession.                                          H
                                       741
    742                   SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A         Allowing the appeal, this Court

          HELD : 1. It is settled law that a Receiver when appointed to manage
    the suit property, acts as an officer of the Court. Unless the Court grants
    permission to induct any third party into possession as a tenant in
    accordance with the directions contained in the Order or as per the law
B   then prevailing, the person inducted by the Receiver into possession would
    remain only as a licensee under the Receiver. As soon as the Receiver is
    discharged, the possession of the licensee being a limited right to remain
    in possession during the period when the receiver was in management of
    the suit property, it comes to an end. On the discharge of the Rece_iver, the
c   licensee has no ·right to remain in possession as either a tenant or a
    licensee. Therefore, the period of his possession cannot be treated or
    tagged for the purpose of claiming adverse possession. (745-B, CJ

          P. Lakshmi Reddy v. L. Lakshmi Reddy, (1957) SCR 195, relied· on.
D
        2. In the instant case, the question of the respondents to have
  remained in possession, could not have been gone into by the High Court,
  since the District Court on consideration of the entire evidenc;e had
  categorically recorded a finding of fact that the appellant and his co-:.
                                                                 1
  sharers ·remained in possession from August 1945 and that the respon-
E dents were not continuing in possession from that time. This being a
  finding of fact, the High Court would not have gone into the question. The
  High Court has gone into the question whether. the respondents were not
  dispossessed from suit lands and recorded a finding that they remained
  in possession. That finding does not appear to be warranted in view of the
F fact that the evidence was not discussed and the only evidence the High
  Court had considered was that of PW-1 but the first appellate court had
  considered the evidence of PWs 2 to 5 and the documentary evidence and
  that evidence was found to be in support of the evidence given by PW-1
  that the respondents did not continue in possession from August, 1945.
  Therefore, the finding recorded by the High Court, in fact, was not nec~s-
G sary. Even otherwise, that finding was recorded without adverting to all
  the material evidence and that, therefore, the finding of possession
  recorded by the High Court is clearly illegal. (745-E to H, 746-A]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3190 of
H 1988.
                      S.S. DU1TA v. B.N. BANERJEE                        743

     From the Judgment and Order dated 10 & 16.8.84 of the Calcutta             A
High Court in Appeal from Appellate Decree No. 153 of 1975.

      P.K. Chatterjee and Sukumar Ghose for the Appellants.

      G.S. Chatterjee Adv. for the Respondents.
                                                                                B
      The following Order of the Court was delivered :

      This case has a chequered career. Initially, Title Suit No. 40 of 1927
was filed for partition of the plaint-schedule-properties by the mother of
the. appellant. Pending suit, a Receiver was appointed on May 3, 1933.
During the course of the administration of the plaint-schedule-properties,      C
he had inducted the respondents into · possession purporting to be as
tenants. Ultimately, the suit was decreed in January 1940 and the Receiver
was discharged in December, 1941. Thereafter, the appellant on attaining
majority, filed a second partition suit-Title Suit No. 53/1944, for partition
of other properties and also the suit property which was jointly in posses-     D
sio~ and enjoyment of him and his co-sharers. He also filed an application
for ad-interim injunction to restrain the respondents from interfering with
his possession when there was a threat of dispossession. On April 30, 1944,
a preliminary decree in the title Suit No. 53/1944 was passed followed by
a final decree of November 7, 1949..Thereafter ·in November, i955, the
third suit-T.S. No. 164/1955, was filed against the defendants when the         E
threat of dispossession to the extent of 2 acres and 21 cents was persisting
for a declaration that the lands therein together with the garden and fruit
bearing tress belong to the appellant and his co-sharers and the respon-
dents have not tenancy rights created by the Receiver and for perpetual
injunction restraining them from interfering with their possession. The trial   p
Court dismissed the suit on May 30, 1959, in Title Appeal No. 773/59, by
judgment and decree dated January 17, 1974.

The Appellate Court recorded the findings thus :

        "The entire evidence on record considered together clearly shows        G
        that the defendants are out of possession from the suit lands from
        August 1945 and that the plaintiff and his co- sharers are in actual
        physical possession of the suit lands from that time. n

           The evidence of PWs 2, ·3, 4 and 5 considered with the
        documentary evidence discussed above lands support to the               H
    744                    SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A            evidence of PW-1 that the defendants were not in possession of
             the suit lands from August, 1945 and that the plaintiff and his
             co-sharer are possessing the suit properties from. that time. I
             accordingly hold that the defendants failed to prove that they
             acquired any limited interest of tenancy by adverse possession."
B The appellate Court decreed thus : ·

             "It is hereby-declared that the suit land is in joint possession of the
             plaintiff and the pro-defendants and that the defendant Nos. 1 to
             5 have no tenancy therein or any right to possess the same. The
             defendant Nos. 1 to 5 are hereby permanently restrained from
c            interfering in any way with the plaintiff's possession of the suit
             land."

          Feeling aggrieved against the appellate decree, the respondents filed
    Second Appeal No. 153/1975 in the High Court. The learned Single Judge,
D   by judgment and decree dated August 16, 1984, reversed the decree of the
    appellate court and confirmed the decree of the trial court. The High
    Court held that the respondents remained in possession of the property
    and they have acquired by adverse possession the limited right of tenancy
    and that, therefore, the decree of the appellate court is not valid in law.
E          The question that arises in the appeal is whether the respondents
    have acquired any tenancy rights pursuant to the tenancy created by the
    Receiver by adverse possession. This Court in P. Lakshmi Reddy v. L.
    Lakshmi Reddy, [1957) SCR 195, held that "the possession of a Receiver is
     as an officer- of the Court and he is not agent of any party to the suit and
F   notwithstanding that in law his possession is ultimately treated as posses-
    sion of the successful party on the termination of the suit, he could not be
    considered as the agent of such party with the animus of claiming sole and
    exclusive title with a view to initiate adverse possession, and during the time
    of the Receiver's possession the respondent could not sue H, and limitation
G   could not therefore run against him". In that case, one of the contentions
    raised was that the unsuccessful party in the sµit . having remained in
    possession and the Receiver having continued to be in possession of the
    land taken from the opposite party, the possession of the Receiver should
    be tagged to compute the period of adverse possession in his favour. This
    Court negatived the contention and held that the possession was not taken
H   from him by the Receiver and that, therefore, the question of tagging the
                          S.S. DlJITA v. B.N. BANERJEE                     745

      period due to that contingency did not arise for decision. However, this A
      court held that the possession of the Receiver is possession on behalf of
      the Court and a party cannot claim any title adverse to the opposite surly
      when the Receiver remained in possession. It is settled law that a Receiver
-,
     when appointed to manage the suit property, he acts as an officer of the
     Court. Unless the court grants permission to induct any third party into
                                                                                  B
      the possession as a tenant in accordance with the directions contained in
     the Order or as per the law then prevailing, the person inducted by the
     Receiver into possession would remain only as a licensee under the
     Receiver. As soon as the Receiver is discharged, the possession of the
     licensee being a limited right to r~main in possession during the period
     when the Receiver was in management of the suit property, it comes to an    c
     end. On the discharge of the Receiver, the licensee has no right to remain
     in possession as either a tenant or a licensee. Therefore, the period of his
     possession cannot be treated or tagged for the purpose of claiming adverse
     possession. The finding of the courts below the High Court was that the
     respondents remained in possession from 1933 to August, 1945 and during D
     that period, such possession cannot be treated to be adverse to the real
     owner of the property. Consequently, the declaration given by the High
     Court that the respondents had acquired the tenancy rights by prescription
     is clearly illegal.

            The question of the respondents to have remained in possession E
     cannot be gone into by the High Court, since the District Court on
     consideration of the entire evidence had categorically recorded a .finding
     of fact that appellant and his co-sharers remained in possession from
     August 1945 and that the respondents were not continuing in possession
     from that time. This being a finding of fact, the High Court would not have F
     gone into the question. However, it would appear that on the question of
     limitation under the Bengal Tenancy Act when the arguments were ad-
     dressed, in consideration of that question, the High Court has gone into
     the question whether the respondents were not dispossessed from suit
     lands and recorded a finding that they remained in possession. That finding
     docs not appear to be warranted in view of the fact that the evidence was G
     not discussed and as rightly contended the only evidence the High Court
     had considered was that of PW-1 but the first appellate court had con-
     sidered the evidence of PWs 2 to 5 and the documentary evidence and that
     evidence was found to be in support of the evidence given by PW-1 that
     the respondents did not continue in possession from August, 1945. Th~re- H
    746                  SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.

A fore, the finding recorded by the High Court; in fact, was not necessary.
    Even otherwise, that finding was recorded without adverting to all the
    materictl evidence and that, the refore, the finding of possessl.on recorded
    by the High Court is clearly illegal.       ·

           The appeal is accordingly allowed. The judgment and decree of the ·
B High Court is set aside and the judgment and decree of the appellate court
    is reversed. No Costs.

    G.N.                                                       Appeal allowed.