Shri Biren Rava and Others vs Sri Jnanendra Narayan Choudhury

B.L. Hansaria, J.—A suit tiled by the Appellants has come to be dismissed at the hands of the learned Assistant District Judge, Goalpara, Dhubai on the ground that it was barred by limitation. The suit was for khas possession on declaration of title. The learned Assistant District Judge has agreed with the learned trial Court that the Plaintiffs were able to prove their title over the suit land. They have, however, been non-suited because they had approached the Court beyond 12 years of their dispossession. It may be stated that the case of the Plantiffs was that they had been dispossessed in Baisak 1367 B.S. (corresponding to April-May, 1960) the suit was filed in 1968, and as such was within a period of l2 years from dispossession. The learned first appellate Court, however, found on an appraisal of the evidence that the dispossession was not in 1960, but sometime in 1955-56 if not in 1950. The further view taken is that as the Defendants possessed the land for more 12 years preceding the filing of the suit, the Defendants held the land adversely to the Plaintiff for more than 12 years before the latter had approached the Court. The decree of the trial Court was, therefore, reversed and the, suit was dismissed, with costs.

I have heard this appeal with the assistance of the learned Counsel for the Appellants only as none appeared for the Defendants. Before proceeding, I wanted to satisfy myself if notice of this appeal had been properly served on the main contestants Who are Respondents 1 to 4. The process server''s report and the processes showed that notices for these Respondents had been served and accepted by Jnanendra Narayan Choudhury on 12.8.77. Notices on other Respondents had also been served properly.

The point which needs determination in this appeal is whether the suit was covered by Article 64 or Article 65 of the Limitation Act, 1963. The learned, Assistant District Judge after referring to the decisions of this Court in Syed Anomruddn v. M Abdul Rahim 1974 ALR 90; H.B. Sarma v. H.G. Sarma AIR 1975 Gau. 47 and that of the Supreme Court Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, came to the following two conclusions in the main regarding the relative scope of Articles 64 and 65 of the Limitation Act:

(i)The two Articles 64 and 65 in their application cannot be placed in two water-tight categories. There may be considerable over-lap of the two articles in a given case.

(ii) In a case where there are allegations of title, possession and subsequent dispossession even if Article 65 is to be applied the Plaintiff has to prove not only title but an existing title and that he has brought the suit within 12 years of dispossession.

while coming to the aforesaid conclusions, the learned Assist District Judge felt that the decision in Anowaruddin (supra) per incuriam as it has failed to take note of Nair Service society (Supra). It was also observed that Sharmas case was to open to the charge that it too was per incuriam as it did notice Anowaruddin.

According to me, there is no clash between any of the aforesaid decisions, if they are read in the context of their facts. (sic) first the ratio of the Nair Service Society has to be noted. (sic)ein a suit was filed for possession on the strength of posser(sic) title alone. It was, however, beyond the period of six months visualised by the Specific, Relief Act. A contention was before, made by Shri Nambiar that there could not be two periods imitations, namely, six months (as, visualised by the Specific relief Act) and 12 years (as fixed by the, Indian Limitation Act), for suits based on possession alone and that the longer period of limitation, requires, proof of title by the Plaintiff. This (sic)tention was not accepted and the Supreme Court observed follows:

The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the Plaintiff need not prove title and the title of the Defendant does not avail If him, When, however, the period of 6 months has passed question of title can be raised by the Defendant, and if he does so the Plaintiff must establish a bettes title or fail. In other words, the right is only restricted to possession only in a suit u/s 9 of the Specific Relief Act but that does not bar a suit prior possession within 12 years and title need not be proved unless the Defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables, a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the Plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein, based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent.

This decision itself shows that where a suit for possession is based on title, Article 65 applies. When it, was observed, that the amendment was not remedial but declaratory of the law what the Court meant was that even prior to the Limitation Act, 1963, a suit for possession on the strength of prior possession only was maintainable even though it was filed beyond a period of six months, But when the period of six months had expired, the question of title could be raised by the Defendant (Which could not be done if filed within six months); and when it is no done the Plaintiff must establish a better title of fail

4A. In Anowaruddin''s case it was made clear that a suit proprietary title attract Article 65 if instituted after the new Limitation Act came into force and it could be defeated only if the Defendant, could prove his adverse possession for years not and not on the footing that the Plaintiff bad not brought the suit within 12 years of his dispossession. In this context it would not to be out of place to state that Articles 64 and 65 are not in pari materia with old Articles 142 and 144. The Law Commission on whose recommendation the changes were made had felt that Article 142 of the old Act was harsh in operation in placing the owner of the property at a disadvantage in an action brought by him against a trespasser. That Article cast a burden on the dispossessed owner not only to establish his title but also to make out that be was in possession at some point of time within 12 years before the date of the suit. This called for legislative action according to the Law Commission. The recommendation of the Commission was, inter alia, to this effect:

If the Defendant wants to defeat the right of the Plaintiff he must establish his adverse possession for over twelve years which has the effect of extinguishing the title the owner by the operation of Section 28 of the Limitation Act, read with Article 144. If he fails to do there is no reason for non-suiting the Plaintiff merely because was not able to prove, possession within twelve years. In our opinion Article 142 must be restricted in its application only to suits based on possessor title. We therefore, suggest that in order to avoide injustice and inequality to the true owner and to simplify the law Article 142 Should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the Defendant in possession is able to establish adverse possession.

Limitation Act of 1963 was enacted to implement the recommendations of the Commission with one important modification which related to adherence to the scheme of the Act specifically indicating the running point of the limitation. (See Statement of objects and Reasons). It is apparent that the aforesaid recommendation was accepted as under the new Articles there is a clear-cut distinction between the suits based only on prior possesion, and suit based on title. The former are governed by Article and to the latter category the provisions of Article 65 apply.

This is the view expressed in Anowaruddin. Now let us see whether in Sharma''s case, this Court laid down any different legal proposition as felt by the learned Assistant District Judge. Before this is done, it is worthwhile pointing out that the decision in Sharma''s case is by Islam, J. (as be then was) for a Division Bench of this Court. Sitting singly Islam, J. had rendered three judgments on this point which are Thokchom Ibopishak Singh v. Salam Chandra Singh AIR 1975 Gau. 1; A.T. Singh v. R.K.M. Singh AIR 1075 Gau. 12; Chandra Kant a Kulita v. Gokul Kalila AIR 1975 Gau 13. In the first two of these decisions, his Lordship had held that a suit for possession based on title would be governed by Article 65, and not Article 64 Chandra Kanta (Supra) was a case under old Limitation Act and the view expressed was that even under the old Act, a suit for possession based on title would have been governed by Article 144, in which case it would have been the burden of the Defendant to prove that he was holding adversely and that adverse. possession had ripened into title.

We may now examine the judgment of Islam, J. in H.B. Sarma''s case, After referring to Nair Service Society, it was Observed:

The law therefore is that when a Plaintiff brings a suit for possession of immovable property basing his suit on title and his title established, then Article 65 of the Act would apply and it will be the Defendant�s burden to prove that he has acquired to prove that he is in possession adversely to the Plaintiff for the statutory period of 12 years. When however a Plaintiff brings a suit for possession of immovable proeperty but based his suit on previous possession but not on title, Article 64 applies. In this case there is a clash between the two kinds of possession of the Plaintiff as well as of the Defendant and as the Defendant is admittedly in possession, the Plaintiff cannot get a decree unless he proves existing title. Hence the burden is upon the Plaintiff to prove that he has instituted the suit within 12 years from the date of dispossession, and that his title has not been extinguished u/s 27 of the Limitation Act.

(Emphasis supplied)

A close reading of the above would make it clear that the question of clash between the two kinds of possession would arise only when Article 64 applies. In such as situated within 12 years of dispossession and his title had not been extinguished u/s 27 of the Limitation Act.

It is apparent from what has been stated above that the question of instituting the suit within 12 years of dispossession would arise only when Article 64 is attracted. As stated in Nair Service Society, this Article gets attracted in as suit "based on possession and not on title." Where possession is claimed on the strength and not on title, it would be Article 65 which would hold the field and a Plaintiff would be non-suited only if adverse possession for a period of 12 years is proved the length of mere dispossession would not be material in such a case.

Thus the learned assistant District Judge committed error of law in stating that even where Article 65 is attracted. A Plaintiff has to prove that he was in possession within 12 years of the filing of the suit. As the present was a case based on title, there should be no manner of doubt that it is Article 65 which applies. It was, therefore, the burden of the Defendants to establish that that they were holding the land adversely to the Plaintiffs and had lose so at least for a period of 12 years, shri Choudhuri contends that it was not even the case of the Defendants that they were (sic)ding adversely to the Plaintiff. Their case rather was that the land was included in the Touzi of their father who possessed through adhian, after whose death they did so. The Defendants (sic) not claimed adverse possession, the question of the adverse having ripened into title does not arise.

This being the position, I would hold that, the learned (sic) below erred in law in holding that the suit was barred by (sic)ion. As the title of the Appellants was found established by the learned Assistant District Judge, there was no other (sic) in their way. Accordingly, the appeal is allowed, the (sic) judgment and decree are set aside and the suit is decreed.