CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1984 of 1968.
(Appeal by Special Leave from Judgment and Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No. 3224 of 1963 )
S.C. Manchanda, M.L. Chitravanshi and M.V. Goswami, for the appellants. J.P. Goyal, V.C. Prashar and Shreepal Singh, for respondents. The Judgment of the Court was delivered by
BEG, C. J. This is the defendant’s appeal by special leave against the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No. 397 in Katra, Allahabad. The plaintiff claimed to be the sole heir of the auction purchaser of the house in October, 1937, at a Court sale in execution of a mortgage decree. The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand. Kripa Shanker, now represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were not binding upon him for want of legal necessity. Shital Prasad, a son of Kalyan Chand, was not a party to the mortgage deed. Hence, Sital Prasad’s share could not be said to have been sold. On 12th September, 1938, symbolical possession was taken by the auction purchaser, and, again in 1946, in proceeding for execution of a decree. But, the house continued to be in the occupation of Kripa Shanker, the husband of the appellant Raj Rani and the father of the appellant Kali Charan. Devika Rani, widow of Shital prasad, who had filed a suit in 1937 for the declaration of her rights to 1/3 of the house, after her objections under Order XXI, Rule 100 of the Code of Civil Procedure had been dismissed, and obtained a decree from the appellate Court on 22nd January, 1941, with the result that Shital Prasad’s 1/3 share went out, had not been impleaded in the suit now before us. In 1945, the respondent-auction purchaser (now represented by son, Respondent No. 1 ) had filed a suit against Kripa Shanker and another for a declaration of his rights in respect of 2/3 share in another house and the ejectment of Kripa Shanker and Prayag Das from that house. Although that suit was in respect of another house, the defendants alleged that, in that suit, the auction purchaser had said that the house in dispute in the case now before us was also in possession of Kripa Shanker as a trespasser. Kripaa Shanker died in 1953 leaving the appellants in possession as his heirs.
The suit now before us was filed on 10th August, 1959. It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt. Devika Rani, the widow of Shital Prasad having continued in possession over 1/3 share, her claim to that portion had been accepted so that it was no longer in dispute. But, it was alleged that the auction purchaser has been in possession over 2/3 part of the house together with Devika Rani who had 1/3 share in the house. It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defendant No. 3, had started giving himself out as the owner of 1/3 share, on the basis of a giftdeed of 1953’ in his favour, and that defendant No. 1, Raj Rani, had been giving out that Sankata Prasad had executed a sale-deed in favour of Kripa Shanker, defendant No. 2. In para 8 of the plant, however, it is alleged: "The defendants had no concern with the 2/3 share in the said house themselves or through any other person nor were they ever in possession or in occupation of any part of above owners". It is also alleged in the plaint that the plaintiff--auction purchaser’s son had been, and, before him the auction-purchaser had been in possession of the house. Furthermore it is alleged that "Raj Rani had, in collusion with Sankata Prasad, defendant No. 3, Obtained a false sale-deed in favour of defendant No. 2 in respect of the 1/3 share of the said house and misled some tenants in the said house and illegally prevented them from paying to the plaintiff his share in the rent". The plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defendants 1 and 2, the appellants before us. In paragraph 10 of the plaint, it Was stated that the defendants did not pay any taxes to the Municipal Board which had to file suit for their recovery which were decreed. The plaintiff, however, alleged that he had paid up the decretal amounts in excess of the 2/3 share which belonged to the plaintiff. The plaintiff also alleged that he was being obstructed in looking after the house and realising rents. Hence, according to the plaintiff, he had to serve a notice dated 23rd April, 1959, asking the defendants to partition the property. The plaintiff alleged that the cause of action "accrued to the plaintiff firstly in 1956 and after that on the end of each month when the defendants illegally received plaintiff’s share in the rent from the tenants and did not pay to the plaintiff and then on 15-11-58. When the plaintiff has to pay excess amount to the Municipal Board on account of the defendants and the on 23-4-59 and, lastly, in May, 1959, when the defendants refused to partition the plaintiff’s share in the said house, within the jurisdiction of this Court and this Court has the jurisdiction to try this suit".
The defendants-appellants had denied any concern with the mortgage. Apparently, their case was that as the husband of Raj Rani, appellant No. 1 and the father of Kali Charan, appellant No. 2, was a minor at the time of the alleged mortgage and his brother, not having borrowed the money for any legal, necessary, could not bind Kripa. Shanker or his heirs. Furthermore, the defendants pleaded that, even if the house’ had been sold in execution of the mortgage decree, the defendants-appellants "have been openly denying the rights of the plaintiff and had been’ in adverse possession and occupation of the property for more than 12 years so that even if the plaintiff or his predecessors had any right, it had been extinguished by the operation of law of limitation".
The first question, on pleadings set out above, for the trial. Court to determine was: has the plaintiff come with a plea of dispossession by the defendants so that Article 142 of the old Limitation Act was applicable to. The case, or, had the defendants, having set up the plea of adverse possession, to establish an ouster in order to discharge their burden of proof under Article 144 of the Limitation Act ? In view of section 3 of the old Limitation Act, it was incumbent on the Court to determine whether the Suit was filed within time, even if the plea of limitation had not been taken, when the question had been raised. Section 3 (1) provided:
"3 (1). Subject to the provision contained
in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application
made after the prescribed period shall be
dismissed, although limitation has not been
set up as a defence."
The correct procedure for the Court to adopt
was not only to frame an issue on the question
of limitation but to determine whether it was
governed by Article 142 or by Article 144 of
the Limitation Act. The trial Court did frame
an issue indicating that Article 142 was
applicable. This was issue No. 2 framed as
follows:
"Whether the suit is within limitation"?
The trial Court observed: "It is also.
true that if the suit of the plaintiff is not
established to be within limitation, that is
to say that, if the possession of the plain-
tiff is not even within 12 years, the suit
must fail as the rights of the plaintiffs
would be deemed to have been extinguished by
the adverse possession of defendants 1 and 2,
or their Predecessor-in-interest, namely,
Kripa Shankar". All this shows that the trial
’Court was applying Article 142 of the old
Limitation Act. We do not, however, find any
finding given by the trial Court on’ the
question whether, and, if so when and how, the
plaintiff was in actual or constructive pos-
session of any part of the house. If Article
142 applied, it meant that the plaintiff had
admitted dispossession. If this was the
case, the following finding by the trial
Court on the trial of the plaintiff seems to
us to be premature:
"Now it will be noted that there has not
been any partition between the plaintiff on
the one hand and the other one third share
holder Smt. Deoka or her successor-in-interest
on the other hand. Smt. Deoka was admittedly
a relation of Kripa Shanker and there is
nothing unusual if Smt. Deoka had allowed
Kripa Shanker to continue to live in the suit
premises under the protection of her 1/3
share. The consistent Municipal receipts, the
litigation with tenants, and over all the
title deeds of the plaintiff; they all go to
lend support to the plaintiff’s case".
In the first appeal against that judgment,
it was again not decided anywhere what Article
of the Limitation Act applied to the case. It
appears to us that the appellate Court had
also not come to the grips with the real
question to be determined. It said:
"It was alleged that Kripa Shanker had
taken possession over the house. The learned
counsel for the appellant argued that these
documents showed that Kripa Shanker was in
possession over the entire house and that
Bhagwan Das never obtained actual possession
over it and only symbolical possession was
delivered to him in this suit, It must be
borne in mind that Bhagwan Das was owner to
only 2/3rd share and 1/3rd belonged to Mst.
Deoki, who was real aunt of Kripa Shanker, and
unless Bhagwan Das had got his share parti-
tioned, he could not obtain actual possession
over any portion of the house and as such only
symbolical possession was delivered to him.
The question only is whether he remained in
joint possession or not ? It is contended from
the side of the appellants that he was not in
possession and Kripa Shanker was in adverse
possession at least from 1945, and that this
suit was filed in 1959, that is after more
than 12 years when the defendant appellants
had already perfected their title by adverse
possession. This symbolical possession was
delivered on 21st of November, 1946. This
suit was filed in 1959 that is more than 12
years after and, therefore, there is force in
the contention that it must be proved that
Bhagwan Das was in joint possession. Bhag-
wan Das was a co-sharer along with Mst. Deoki.
Mst. Deoki’s share ultimately came to the
defendant appellant in 1957 and as such in
1957 the defendant appellant became co-sharer
with the plaintiff respondent. In 1957, 12
years had not passed and even if it is assumed
that Bhagwan Das or the plaintiff respondent
was not in joint possession, their right had
not ceased in 1957. It was observed by the
Supreme Court of India in the case P.
Laxmi Reddy v. L. Laxmi Reddy (in 1957 A.I.R.
Supreme Court 314), ’the burden of making out
ouster is on the person claiming to displace
the lawful title Of co-heir by his adverse
possession’."
If the plaintiff’s assertion was that the defendants had dispossessed him it did not matter whether the defendants represented a co-sharer or not. In that event, the plaintiff’s case would certainly be deemed to be one in which the assertion of dispossession was there. In the case before us, it appears that the rights of Kripa Shanker, on the plaintiff’s assertion that he had been a party to the mortgage, had come to an end by the sale of his rights in the property and delivery of possession to the auction purchaser. His heirs could only be in adverse possession and not holding through Kripa Shanker on the plaintiff’s own assertions. In fact, they have not claimed to be holding through Kripa Shanker. In any event, the allegations in the plaint appear to us to amount to an allegation that, by asserting their own ownership and inducing the tenants not to pay rents to the plaintiff, the defendants had dispossessed the plaintiff. In such a case, even if a defendant in actual possession could be deemed to be initially a co-sharer, the plaintiff would be really asserting that the co-sharer had dispossessed or ousted him. Hence an ouster having been admitted in the plaint, the burden would lie ’upon the plaintiff of proving his Case that the ouster had taken place within twelve years. On any other view, the distinction between articles 142 and 144 of the former Limitation Act, which is important in this case, would vanish.
In a case between co-sharers, Bindhyachal Chand & Ors. v. Ram Gharib Chand & Ors,(1) a "Full Bench of the Allahabad High Court had examined the difficulties which arise when a co-sharer sues another on the allegation that he had been dispossessed. Sulaiman, C.J., pointed out that article 144 was a residuary article Which applied to suits for possession of immovable property which could not fall elsewhere. As regards the distinction between articles 142 and 144, he observed (at p. 997):
"No doubt in many cases the distinction is
very fine,and the line of demarcation be-
tween dispossession and adverse possession
is thin. But, the question in each case is
one of burden of proof, and it is incumbent on
the plaintiff, when he admits his disposses-
sion, to establish his possession within
twelve years".
He went on to point out (at p. 998):
"Ordinarily, the possession of one co-owner,
who is entitled to joint possession of the
whole property, is refer-able to his title,
and he cannot ask the Court to presumethat his
possession was illegal or adverse to the other
co-owner. It follows that if one co-owner is
in actual possession of the joint property,
and the other co-owner is either absent or is
not in actual possession, the latter would
still be in constructive possession of his
property through his co-owner. There would be
prima facie no case, where the possession of
one co-owner was illegal and was necessarily
adverse to that of the other co-owner. The
presumption would be that they are both in
joint possession. But, it cannot be denied
that one co-owner can dispossess another
(1)A.I.R.1934 All. 993.
3--240SCI/77
co-owner and can exercise adverse possession
over a joint
property. If, therefore, the plaintiff, a
co-owner, admitsthat he has been dispossessed
and that, at any rate, for a short period
prior to the suit, the possession of his co-
owner was adverse to him, then he cannot fall
back on a mere presumption of joint possession
in his favour and succeed without showing any
other circumstances whatsoever".
The following observations of the learned
Chief Justice are
also useful (at p. 998):
"Personally speaking, I do not think
that the plaintiff can by cleverly drafting
his plaint evade the burden of proof which
Art. 142 casts upon one who is suing for pos
session on the ground of dispossession. When
a plaintiff falsely alleges that he is in
possession and wants a relief, to which the
owner in possession is entitled, e.g., for
partition, injunction, joint possession, etc.,
and it is found that he was in fact not in
possession but had been dispossessed, techni-
cally speaking, the suit would fail under s.
42, Specific Relief Act and would be dismissed
on the ground that he had omitted to ask for a
consequential relief and had failed to prove
his case. But, a Court may allow him to
change his ground and give him a decree for
possession, treating his claim as one for
recovery of possession on the basis of dispos-
session, provided he succeeds in showing that
his dispossession took
place within 12 years".
It seems to us that, in the case now
before us, the High Court, on a second appeal
to it, also failed to determine the crucial
question of actual or even constructive pos-
session of the plaintiff within twelve years.
It said:
"The argument advanced before me is that
after the decree in suit No. 57 of 1945 the
possession of Kripa Shanker became adverse
and, as the suit for partition was not fried
with 12 years of the date of the decree, the
suit was barred by limitation. A large number
of authorities were cited before me on the
point. It was urged that if a member of an
undivided Hindu family sells his undivided
share and the alience does not bring a suit
for partition and possession over his share
within 12 years of the date of the alienation
the possession of the alienor and all the
other coparceners would be adverse and the
suit for partition after the expiry of 12
years from the date of the alienation would be
barred by time. Some of the authorities cited
by the learned counsel for the appellant, to
which I do not consider it necessary to refer,
would seem to support his contention. Learned
counsel for the respondent, however, has cited
before me the latest case of the Supreme
Court in Manikayala Rao v. Narashnhaswami (AIR
1966 SC 470)". The case relied upon by the High Court is distinguishable on two grounds: firstly, it was not a case where the plaintiff, on the pleadings in the plaint could be fairly said to have admitted dispossession or ouster by setting up that the alleged co-sharer in possession was denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession which could, therefore, not be continuously for twelve years. In the case before us, even if a symbolic delivery of possession to a co-sharer could be said to have interrupted any adverse possession, that interruption took place beyond 12 years. Hence, it was the duty of the plaintiff to have shown by cogent evidence how, by receipt of rent or an admission by the defendants or otherwise, he or his predecessorininterest could be deemed to be in actual or constructive possession as an owner or as a co-sharer with the defendants over the house in dispute.
We may observe that the difficulty in deciding the question whether article 142 or article 144, Limitation Act applies to a case which really depends upon an interpretation of the pleadings, was sought to be removed in the Limitation Act of 1963 by a more clarified position in article 64 and 65 of Limitation Act of 1963. The reasons given for this change were:
"Article 142 and 144 of the existing Act
have given rise to a good deal of confusion
with respect to suits for possession by owners
of property. Article 64 as proposed replaces
Art. 142, but is restricted to suit based on
possessory title so-that an owner of property
does not lose his right to the property unless
the defendant in possession is able to prove
adverse possession". In other words, in cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession, in suits based on title, had to prove that he was in actual or constructive possession within twelve years. Hence, the change in law. We do not, however, propose to examine or lay down here the exact position under the amended law of limitation under the act of 1963.
The result is that, in the case before us, the plaintiff had to, prove that he was he actual or constructive possession within twelve years. It would be enough if he establishes that he was in constructive possession within twelve years by receipt of rent or otherwise. There is no finding to that effect given by the High Court or by the Subordinate Court.
We, therefore, allow this appeal, set aside the judgments and orders of the High Court and of the first appellate Court. We send the case back to the first appellate Court, which is the final Court of facts, to determine, on the evidence already on record, whether the plaintiff was in actual or constructive possession within twelve years of the filing of the suit. If the plaintiff can establish that, the suit will have to be decreed. Otherwise, the suit must fail. The costs will abide the results. S.R. Appeal allowed
and case remanded.