Nanda and Others vs Risala and Others

This appeal has been filed by the plaintiffs against the judgment had decree of the Additional District Judge, Karnal, dated Nov. 22, 1976.

Briefly the case of the plaintiffs is that the land comprised in Khewat Nos. 63 and 65, half share in Khewat No. 64 and 3/8th share in Khewat No. 66, belonged to them. It is alleged that some years back they had left the village and entrusted the management of their land to the defendants who had been paying the produce of their share to them. In Rabi, 1961, they had stopped paying the share of their produce to them. They consequently filed a suit for declaration that they were the owners of the land in dispute and in the alternative prayed for its possession. The defendants contested the suit and, inter alia, pleaded that the plaintiffs had abandoned their land and that they (defendants) had been in its adverse possession without paying any rent for more than twelve years. They averred that consequently they had become owners by adverse possession. It was also pleaded that the suit was not within time.

The trial Court held that the plaintiffs were the owners of the land in dispute, that the suit was within limitation and that the defendants had not become owners of the property by adverse possession. In view of the aforesaid findings, the trial Court granted a decree for possession in favour of the plaintiffs. The defendants went up on appeal before the Additional District Judge, Karnal, who modified the judgment and held that the plaintiffs had failed to prove the suit within time regarding Khewat Nos. 63 and 65. Consequently, he partly accepted the appeal, modified the decree and dismissed the suit regarding Khewat Nos. 63 and 65. The plaintiffs have come up in second appeal to this Court.

Before dealing with the arguments of the learned counsel for the parties, it will be advantageous to refer to some of the undisputed facts. The ancestors of the parties were joint occupancy tenants of the land in dispute and remained in its joint possession upto the year 19103-04. From 1909-10 to 1937-38, the ancestors of the plaintiffs were recorded in the Jamabandis as gair qabiz and those of the defendants, in possession thereof along with their own share. After 1937-38, consolidation proceedings took place in the village. The plaintiffs were entered as the sole occupancy tenants in Khewat Nos. 63 and 65, in the Jamabandi of 1945-46, prepared immediately after the consolidation of holdings. They were, however, shown as gair quabiz and the defendants were recorded in actual possession of the said land. In 1953, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act came into force and in view of its provisions, the plaintiffs were entered as the owners in Khewat Nos. 63 and 65, in the Jamabandi of 1953-54, but the entries in the column of cultivation remained the same.

It is argued by Mr. Jain that the appellants became owners of the land in dispute in the year 1953 and the present suit was filed in August, 1962. He submits that the possession of the respondents prior to 1953 was not adverse against the rights of the original owners. According to the learned counsel, the appellants became entitled to the possession of the land in dispute as owners in 1953. In the circumstances, he contends, the suit of the appellants for possession as owners was within limitation. On the other hand, the contention of Mr. Sahni is that the respondents were shown in possession of the land from the year 1945-46 and the suit has been filed in the year 1962. Therefore, the counsel submits, it is barred by limitation.

I have heard the learned counsel for the parties at a considerable length and given a thoughtful consideration to the matter in dispute. The facts of the case are not dispute. The facts of the case are not disputed. It is admitted by the learned counsel that Art. 142 of the Limitation Act, 1908, is applicable to the present case. According to the said Article, the plaintiffs can institute a suit for possession of immovable property within 12 years of their dispossession. In the present case, as already stated the appellants became owners of the property in 1953. Prior to 1953, they were occupancy tenants under the landowners. They during that period could not institute a suit for possession against the respondents on the basis of title. If they wanted to institute a suit for possession before 1953, they could do so on the basis of their right as occupancy tenants and not as owners. After coming into force of the Act, the appellants became owners and were vested with the right to eject the person in possession of the land on the basis of their title. In such circumstances they will be deemed to have been dispossessed regarding their ownership rights from the date when they became owners of the property. Therefore, the period of limitation would run against them from the day when they stepped into the shoes of the earlier owners. In case the respondents had become owners of the property by adverse possession prior to coming into force of the Act, the matter would have been different. As already stated above, they held the occupancy rights adversely to the appellants from 1946, and consequently, they did not acquire occupancy rights by adverse possession in 1953, when the appellants got ownership rights. The respondents cannot derive and benefit from the aforesaid fact. I am, therefore, of the opinion that the limitation for the suit for possession by the appellants on the basis of title started in 1953, when they became owners of the property and therefore the suit is within limitation.

For the reasons recorded above, I accept the appeal, set aside the judgment and decree of the first appellate Court regarding Khewat Nos. 63 and 65 and decree the suit of the plaintiffs in toto. In the circumstances of the case, I, however, make no order as to costs.

Appeal allowed.