Rajinder Kumar and Another vs Bhag Chand

A.L. Vaidya, J.—All the four Regular Second Appeals No. 344/88, 353/88, 354/88 and 361/88 titled above are being disposed of through a common judgment being passed in R.S.A. No. 344/88 on the sole ground that all these appeals involve common question of law and facts. Actually, the Plaintiffs in all these suits were the same persons but the Defendant/Defendants were separate and parcels of suit land were also distinct. The trial Judge as well as the Appellate Court has passed similar type of common judgment in all these appeals based upon same question of law and facts. The evidence apart from the statement of different Defendants is also the same in all the suits.

The present Appellants claim themselves to be owners of the land as described in the plaint. According to them, they were in possession of this land till December, 1982 and thereafter the Defendant-Respondents who were residing near the suit land, in the absence of the Plaintiffs encroached upon the same. It has been the case of the Plaintiffs that during the settlement operation, the Defendant/Defendants in connivance with the settlement staff, wrongly got themselves entered in the possession of suit land and took over the possession of the suit land in the month of January, 1983 without consent and in the absence of the Plaintiffs. According to the Plaintiffs, in the winter season, they resided in village Kupri and generally remained absent. It was pleaded by the Plaintiffs that the Defendants assured to deliver the vacant possession in case after demarcation of the suit land, the land was found belonging to them. It was also averred that the demarcation was made in the month of July, 1984 and the suit land was found belonging to the Plaintiffs but the Defendants refused to deliver the possession back inspite of requests, hence the suit for possession was filed.

The Defendant/Defendants contested the suit and raised various pleas that the suit was barred by time, the plaint has not been properly valued for the purposes of Court fee and jurisdiction. On merit, it was pleaded that the Plaintiffs were never in possession of the suit land and as such, the question of dispossessing them in the month of January, 1983 or even thereafter did not arise. According to the Defendants, they had been in continuous possession of the suit land for the last more than 40 years and on account of that, became the owners of the same. Other pleas of the Plaintiffs were not admitted.

Parties were put to trial, on the following issues by the trial Court, in all the suits:

Whether the Plaintiffs are owners of the suit land as alleged? OPP.

Whether the Plaintiffs were forcibly dispossessed from the suit land by the Defendant(s) in the month of January, 1983 as alleged? OPP.

Whether the suit of the Plaintiffs is barred by limitation? OPD.

Whether the Defendant is in adverse possession of the suit land and has become owner of it by adverse possession as alleged? OPD.

Whether the suit of the Plaintiffs is not properly valued for the purposes of Court fee and jurisdiction? OPD.

Relief.

Issues No. l and 2 were decided in favour of the Plaintiffs, while Issues No. 3 to 5 against the Defendant/Defendants. The suit of the Plaintiffs, as such, was decreed by the trial Court.

The aforesaid judgment and decree were assailed before the first appellate Court by the Defendant-Respondents on various pleas. However, the lower appellate Court came to the conclusion that the suit being governed by Article 64 was filed beyond the period of limitation and as such was dismissed.

The aforesaid judgment and decree passed by the first Appellate Court have been assailed in the present appeal(s) on various grounds.

I have heard the learned Counsel for the parties and have also minutely scrutinised the entire record.

The sole point before this Court has been pertaining to the applicability of Article 64 or 65 of the Limitation Act on the facts and circumstances of this case.

The first appellate Court came to the conclusion that on the basis of material on record, the Plaintiffs have miserably failed to prove themselves to be in possession of the suit land and having been dispossessed by the Appellants in January, 1983, therefore, the suit was not within the period of limitation having not come within the ambit of Article 64 of the Limitation Act. However, the first appellate Court came to the conclusion that the Defendant/Defendants has rightly been held to have failed to prove his adverse possession over the suit land although he was in possession over the suit land although he was in possession simplicitor. The trial Court also returned the finding of adverse possession against the Defendant(s) on the basis of the evidence examined during the trial.

Articles 64 and 65 of the Limitation Act for the sake of convenience are being reproduced hereunder:

For possession of Twelve years The date of dispossession. immovable property based on previous possession and not the title, when the Plaintiff while in possession of the property has been dispossssed.

For possession of Twelve When the possession of immovable property years the Defendant or any interest becomes therein based on title. adverse to the Plaintiff.

Article 64, as referred to above, deals with the suit for possession of immovable property based on previous possession and not the title. That means the suit under this article could be based simply on previous possession excluding very specifically the title of the party filing the suit.

Article 65 applies to suits for possession on the basis of title. This article is limited to cases for recovery of possession of immovable property or any interest based on their title. Obviously, the article contemplates a suit for possession of property where the Defendant might be in adverse possession of it as against the Plaintiffs. It applies to a suit on the ground that the Plaintiff was the owner and the Defendant(s) was a tres-passer having no right to remain in possession.

In so far as the present suit is concerned both the Courts below have been unanimous in holding the Plaintiffs to be the owners of the suit land. There is absolutely no dispute to this proposition before this Court also. The first appellate Court observed that the Plaintiffs, no doubt in the plaint claimed themselves to be the owners of the property in suit but have also pleaded that they were dispossessed by the Defendants in January, 1983, which fact has not been proved, meaning thereby the Plaintiffs failed to prove their possession within 12 years of the dispossession and, therefore, the suit was not within limitation being governed by Article 64 of the Limitation Act. I think these inferences were most uncalled for, illegal and unsustainable on any ground, whatsoever, in case the pleading of the Plaintiffs in this behalf are scrutinised.

The lower appellate Court committed a grave error by making observations that "from the careful perusal of the plaint of the Respondents show that they have based their suit on previous possession and they having been dispossessed by the Appellant in January, 1993.

On the basis of the aforesaid observations the learned District Judge came to the conclusion that the suit had been filed on the basis of previous possession. I think this inference was not at all available in case one goes through the plea of the Plaintiffs. Para 1 of the plaint reads as under:

That the Plaintiffs are the owners of the land (the same has been described separately in individual suit, by means of Khasra number(s) in this para of the plaint) (hereinafter called as suit land). The Plaintiffs were in possession of the suit land till December, 1982. The latest copy of jamabandi is attached for the kind perusal of this Court.

The aforesaid averments in the plaint very specifically reflected the plea taken by the Plaintiffs that they were owners of the suit land and they approached the Civil Court for the grant of possession of the suit land on the basis of their title alone and not on the basis of their previous possession, as has been interpreted by the lower appellate Court. There is no doubt that the Plaintiffs pleaded that they were dispossessed in January, 1983. Even if for arguments sake, they have failed to prove their dispossession in January, 1983, as pleaded by them, that fact alone will not make their suit to be without limitation inasmuch as in case of present nature where the suit for possession has been filed on the basis of title the suit would be governed under Article 65 of the Limitation Act and to make the suit without limitation, the Defendant has not only to plead to have acquired title by way of adverse possession but also to prove the said plea. The lower appellate Court fell in error in interpreting both the Articles. It may be very specifically pointed out that regarding the title, issue No. l was framed in this bahalf which has been decided in favour of the Plaintiffs by both the Courts below.

On the basis of the circumstances referred to above, the present suit which was based upon title, could be made without limitation in case the possession of the Defendants had become adverse to the Plaintiffs for the last 12 years from the filing of the suit. Learned Counsel for the Respondents has tried to take advantage for (1955) 1 Supreme Court cases 311 Shyam Sunder Prasad and Ors. v. Rajpal Singh and Anr. The aforesaid ruling basically dealt with Articles 142 and 144 of the repealed Limitation Act, 1908. The suit in the reported case was quite distinctive and the ratio cannot be made appliable to the facts of the present case as the present suit was governed under the provisions of Limitation Act, 1963 as it was instituted in the year 1985. At the cost of repetition, the present suit was covered under Article 65 alone as the same having been filed on the basis of title alone.

The other citations put forth on behalf of the Defendant(s) need not be referred to as the same were based upon the old/repealed Limitation Act. In that Act Article 144 was the most general article for suit for possession of immovable property applying only when there was no other Article in the Schedule provided for the case but the present Article 65 is independent and substantive Article for suits of possession of immovable properties based on title, that is, proprietary title as distinguished from possessory title.

In so far as the plea of adverse possession of the Defendant(s) is concerned that has been rightly negatived by the two Courts below and those concurrent findings do not require any interference, whatsoever.

This Court has been taken through the evidence examined in this behalf by the Defendant(s). The lower appellate Court came to the conclusion that the Appellant had, no doubt, failed to prove his adverse possession but this negative finding regarding the adverse possession of the Appellant has nothing to do so far as the factum of the possession of the Respondents and subsequent dispossession is concerned. Similarly, the trial Court after discussing the entire evidence examined on the point of adverse possession came to the conclusion that the evidence led by the Defendants was not cogent, convincing and reliable to prove that the Defendants had become the owner of the suit land by way of adverse possession. Even the Defendant(s) could not tell which crop was sown by whom on the suit land about 4-5 years back respectively. The Defendant/Defendants also did not know how he/they became owner of the suit land. Similarily, the witnesses examined by Defendant(s) as D.W. 2 and D.W. 3 also could not depose that which crop was sown by whom on the suit land about 4 to 9 years back respectively. This type of evidence to establish adverse possession has rightly been rejected by the two Courts below and this Court also does not find any reason to disagree with that concurrent findings. The Defendant/Defendants entry in the settlement record in possession without any status will not carry any legal weight whatsoever, moreso to prove the plea of adverse possession being for more than 12 years. Thus, the plea of adverse possession did not stand legally established though this aspect of the matter was not specifically argued in this Court.

No other point has been stressed.

In view of the foregoing reasons, the present appeal is accepted and as a consequence thereof, the judgment and Decree passed by the first appellate Court are set-aside and, therefore, a decree for possession of the suit land is passed in favour of the Plaintiffs and against the Defendants, with costs.