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Ganesh Narayan Kulkarni Vs. Ganesh Ramchandra Joshi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 1197 of 1962
Judge
Reported inAIR1971Bom16; (1970)72BOMLR741; ILR1971Bom1556; 1971MhLJ87
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 63, 97, 98, 99, 100, 101 and 103; Indian Limitation Act, 1908 - Schedule - Articles 11-A and 144; Limitation Act, 1963 - Schedule - Articles 65 and 98
AppellantGanesh Narayan Kulkarni
RespondentGanesh Ramchandra Joshi and ors.
Appellant AdvocateR.B. Kotwal and ;M.R. Kotwal, Advs.
Respondent AdvocateU.R. Lalit, Adv.
Excerpt:
.....based his right to present possession in the execution proceedings on the award decree not being binding on him and had asked the court to decide that it was not so binding. in that suit, watave bad no opportunity of proving his title against the defendant no......for a period exceeding 12 years. the plaintiff is, therefore, entitled to succeed. article 11-a of the indian limitation act, 1908 has no application to the facts of this case.14. one has to look at this matter from another angle. the suit filed by watave against the defendant no. 1 was in his capacity as a landlord against his tenant on determination of the tenancy. in that suit, watave bad no opportunity of proving his title against the defendant no. 1. to hold that either watave or his successor-in-title would be barred by an order under order xxi, rule 99, civil procedure code, from bringing a fresh suit on title would appear to us to be unjust. fortunately, this is not the position in law and we so hold.15. the second appeal is accordingly allowed and the suit of the.....
Judgment:

Nain, J.

1. This is an appeal by the original plaintiff against the judgment dated 18th June 1962 of the learned Second Extra Assistant Judge, Sholapur, confirming the dismissal of the suit of the plaintiff by the learned Civil Judge. Junior Division, Mangalwedha. The learned Second Extra Assistant Judge has, however, dismissed the appeal of the plaintiff only on the ground that the suit was barred under Article 11-A of the Indian Limitation Act, 1908.

2. The facts leading to this litigation may be briefly stated as follows:--

The suit from which the present appeal arises was for possession of a house bearing Municipal No. 401 at Mangalwedha in Sholapur District and for mesne profits based on title as purchaser from the plaintiff's predecessor. This property, prior to the said purchase, belonged to one Watave. The defendant No. 1, according to Watave, was his tenant under a lease for 11 months. In 1953 Watave filed against the defendant No. 1 Civil Suit No. 4 of 1953 for eviction alleging that he had determined the lease of the defendant No. 1. The said suit was decreed by the trial Court. The defendant No. 1 appealed to the District Court. The said appeal, being First Appeal No. 439 of 1953 was dismissed. Thereafter Watave filed Darkhast No. 8 of 1955 for execution of the decree for eviction against the defendant No. 1, We might mention that the defendant No. 2 is the brother of the defendant No. 1 and the defendant No. 3 is their mother. When warrant for possession was taken for execution, the defendant No. 2 obstructed. Watave filed an application under the provisions of Order 21, Rule 97 of the Civil P.C. for removal of obstruction, being Miscellaneous Application No. 2 of 3955. The defendant No. 2 contended that he had separated from his brother, the defendant No. 1, in 1944. He further contended that the suit premises were in hia occupation independently of the defendant No. 1 and not under the defendant No. 1. He, therefore, contended that the decree could not be executed against him. This contention was upheld by the trial Court by an order dated 4th April 1957 and the Darkhast filed by Watave was dismissed. Watave appealed to the District Court and on 11th October 1957, the said appeal was dismissed on the ground that the order was not appealable.

2A. Thereafter by a sale deed dated 25th March 1958, Watave sold the property to the present plaintiff. On 10th October 1958, the present plaintiff filed the suit from which the present appeal arises for a declaration of his title to the house bearing Municipal No. 401 at Mangalwedha and for possession. As we will show by reference to the plaint itself, the plaintiff did not contest the order dated 4th April 1957 made in execution proceedings against his predecessor-in-title, Watave. The defendant No. 1 filed his written statement in the said suit in which he contended that he had nothing to do with the suit premises and that the defendant No. 2 was in possession independently of him as their owner. He also affirmed that in 1944 the two brothers had separated. In his written statement the defendant No. 2 contended that there had been a partition between the brothers in 1844 and that he was in possession of the suit premises ever since 1944. He claimed that he had been in adverse possession for a period exceeding 12 years and had become owner of the suit property. He further contended that the sale deed dated 25th March 1958 executed by Watave in favour of the plaintiff was champertous and, therefore, void. He also contended that the plaintiff's suit, not having been filed within a period of one year from 4th April 1957, was barred by law of limitation under Article 11-A of the Indian Limitation Act, 1908. The defendant No. 3 in her written statement supported the case of the defendant No. 2.

2B. The trial Court held the title of the plaintiff proved. It also held that the plaintiff or his predecessor-in-title had been in possession of the suit property within a period of 12 years of the date of the suit. It held that the sale deed in favour of the plaintiff was not champer-tous. It also held that the defendants Nos. 2 and 3 had not acquired any title by adverse possession. It, however, held that the suit was barred under the provisions of Article 11-A of the Indian Limitation Act. 1908 and it, therefore, dismissed the suit Against the said decision, the plaintiff appealed to the District Court. The learned Second Extra Assistant Judge hearing the appeal decided only one point that of limitation and held that the suit was time-barred. He, therefore, dismissed the appeal the other findings of the trial Court were left to stand. Against the said decision, the plaintiff has filed the present second appeal.

3. Mr. R.B. Kotwal, appearing for the plaintiff-appellant, has taken only one point before us. He has contended that the suit filed by Watave, viz., Civil Suit No. 4 of 1953 against the defendant No. 1 was a suit for eviction filed by a landlord against his tenant on the termination of the tenancy. In execution of the decree against the tenant, the defendant No. 2 had contended that he did not hold possession under the tenant but independently. The obstructionist notice was, therefore, dismissed. Mr. Kotwal contended that tbe present suit was brought by a purchaser from Watave based purely on title and for recovery of possession based on title. He contended that Watave could have maintained such suit. The point he made was that the present plaintiff had filed the suit from which the present appeal arises in a right different from that claimed by Watave either in Civil Suit No. 4 of 1953 or in execution proceedings arising therefrom. Mr. Kotwal drew our attention to the plaint in the present suit. In para 2 of the plaint the plaintiff avers that the suit premises were owned by Sadashiv Vyankatesh Watave and that the plaintiff had purchased the same from Watave on 25th March 1958 for Rs. 400/-. He avers that the defendants Nos. 2 or 3 had no right or interest whatsoever in the said premises and the plaintiff was, therefore, entitled to recover possession of the said premises from the defendants Nos. 2 and 3 according to the aforesaid sale deed and as the defendants Nos. 2 and 3 were obstructing the plaintiff, the plaintiff was filing this suit for recovery of possession of the suit premises in his right of ownership against the defendants Nos. 1 to 3, In para 3 of the plaint the plaintiff claims that the cause of action arose on the day when the plaintiff bought the suit premises from Watave, viz., 25th March 1958. In para 4 of the plaint the plaintiff valued the claim in the suit at Rs. 400/- which was the amount for which he had bought the suit premises. The prayer clauses are contained in para 5. In the same the plaintiff claims the relief of possession in the right of ownership against the defendants Nos. 1 to 3 and certain other reliefs. In the entire plaint there is no reference to the order in execution dated 4th April 1957 passed in Civil Suit No. 4 of 1953. The said order has not been contested in the plaint and there is no prayer for setting it aside.

4. In order to appreciate the contention of Mr. Kotwal, it is necessary to refer to the provisions of Order 21, Rule 97, 99 and 103 of the Civil P.C. Rule 97 provides that where the holder of a decree for possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall investigate into the matter. This right is conferred, either on the decree-holder himself or on an auction purchaser. It is not conferred on a purchaser by a private treaty. We merely wish to point out that the present plaintiff could not have maintained the application under the provisions of Order 21, Rule 97. It may none-the-less be that to the extent to which Watave was bound by such an order, private purchaser may also be bound by it, but for that purpose we shall consider the scope of the Order, Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. This rule makes it clear that in investigating the matter under Rule 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not under the judgment-debtor. If he was (not?) claiming under the judgment-debtor he may be claiming, either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court has in that event to dismiss the application under Rule 97. The Court is not concerned to see in what title the obstructionist was claiming. Rule 103 provides that any party not being a judgment-debtor against whom an order is made under Rules 98, 99 or 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.

5. This takes us to the contention that Watave could have abandoned the right in which he filed Civil Suit No. 4 of 1953 or the application under Order XXI, Rule 97 and turned round and filed a suit on title, this being a different right than the right of a landlord against the tenant. It is contended by Mr. Kotwal that the order under Rule 99 would not under the provisions of Rule 103 have been conclusive even against Watave as Watave would in such case have claimed in a different right. In Note No. 3 at p. 1218 of Mulla's Code of Civil Procedure, 13th Edition, it is stated that an auction-purchaser against whom an order is made under Rule 99 or Rule 101 may bring a suit under Rule 103 to establish the right which he claims to the present possession of the property. Where a suit is brought by him under Rule 103, the suit is one for possession under his auction-purchase, and the cause of action in the suit is the adverse decision under Rule 99 or Rule 100. A suit under Rule 103 is quite irrespective of any other cause of action which such person apart from his character as auction-purchaser may have against the opposite party. It is, therefore, competent to the auction-purchaser to abandon all his right in the auction-sale including the right to bring a suit under Rule 103 as auction-purchaser, and to bring a suit against the opposite party for possession upon a different title altogether. To such a suit the provisions of Rule 103 do not apply, and the suit need not be brought within one year from the date of the order as required by Article 11A of the Indian Limitation Act, 1908. The above passage from Mulla would seem to support the contention of Mr. Kotwal that even Watave himself could have abandoned his right as a landlord and maintained a suit on title against a trespasser or any other person from whom he was entitled to recover possession. This would have been a different right and a different title altogether. We think, there is substance in this contention of Mr. Kotwal and we are of the view that Watave himself could have abandoned his right as a landlord and maintained a suit against the defendants based on title without any reference to the order in execution and this suit would have been on a different right or upon a different title altogether and would have been maintainable. If that be so, the plaintiff will not be in a worse position and would be entitled to maintain a similar suit based on a different right or a different title.

6. Mr. Kotwal has drawn our attention to several judgments of the various Indian High Courts. The first case is of Rukhmabai Datusa Powar v. Fakirsa Hanmantasa Chavan, AIR 1927 Bombay 184. It was decided by a Division Bench consisting of Shah and Fawcett, JJ. The plaintiff filed a suit for recovery of possession of a house against his relation. The matter was referred to arbitration and the arbitrator made an award and a decree in terms thereof came to be passed. The plaintiff contended that the decree had been obtained by fraud. After the said decree, the defendant obtained a decree against the tenant in possession in another suit and applied to execute that decree. An obstruction was offered by the plaintiff with the result that on the application of the defendant, who was the plaintiff in that suit, the Court made an order allowing the application and removing the obstruction. The defendant thereafter obtained possession in execution of the decree which she had obtained against the tenant in possession. Thereafter, the plaintiff filed a suit in which he prayed for a declaration that the award decree in suit No. 1681 of 1922 was void as it had been brought about by the defendant by defrauding the plaintiff and bringing undue influence to bear on him and it was, therefore, not binding on him. He prayed for possession of the property in question and other reliefs. It was held that where the basis of the claim in the suit is the same as that put forward in the execution proceedings to the present possession, Article 11-A of the Indian Limitation Act, 1908 would apply, but where the basis of the claim in the suit is distinct and different and the possession claimed is not present possession but only by way of consequential relief to the decree being set aside, the Article could not apply. The suit of the plaintiff was held not to be time-barred. It was held that the suit of the plaintiff did not fall under Article 11-A, because it was not a suit to establish a right which the plaintiff claimed in the execution proceedings and in that view it was unnecessary to consider whether Article 11-A covered the case of an order which was passed without investigating a point on which there was some conflict of authority. The case would have been different if the plaintiff had distinctly based his right to present possession in the execution proceedings on the award decree not being binding on him and had asked the court to decide that it was not so binding. As the plaintiff did not take up that 'position. Article 11-A of the Indian Limitation Act did not bar the suit.

7. The next case referred to by Mr. Kotwal is of Jnanendra Chandra v. Atansenajit AIR 1951 Ass 145. It was decided by a Division Bench of Assam High Court. It was held in that case that the mere fact that the plaintiffs were suing as auction-purchasers would not bring the case within the mischief of Article 11-A. It has further to be established that the suit was in form or in substance to establish the right which was claimed by the plaintiffs at the time when the order under Rule 101 was passed against them. In the case in the Assam High Court the plaintiffs came as representatives of the auction-purchaser, but did not claim possession of the property on that basis alone. Their claim rested on the ground that they were auction-purchasers and the defendants had lost the title to remain in possession by reason of the extinction of the mortgage. In so framing their suit, they had not challenged the validity of the order under Rule 101. Such a suit, therefore, would not be covered by Article 11-A of the Indian Limitation Act, 1908.

8. In the case of Kavvuru Lakshmipathiraju v. Jagani Venkataswami AIR. 1946 Mad 324, a single Judge of the Madras High Court held that if the title which was put forward as the basis of the subsequent suit was the title which was put forward in execution proceedings as the basis for an order in a party's favour, then Order XXI, Rule 103 would be a bar but not otherwise. It was further held that the relief of redemption and partition asked for by the plaintiff in the subsequent suit could not have been got in the execution proceedings. The fact that the plaintiff did not pursue the remedies given under the execution chapter would not bar the subsequent suit.

9. In the case of Ambika Charan Bhakta v. Ram Prosad Chatterjee : AIR1926Cal377 , a Division Bench of the Calcutta High Court held that the suit contemplated by Rule 103 is a suit by a person who is kept out of possession of the property purchased in execution of the decree and claims possession under his auction-purchase. It does not concern itself with any other cause of action which such person apart from his character as auction-purchaser may have against the defendant. If a suit is not brought under Rule 103 within the statutory period, the right to bring a suit to establish the claim of the plaintiff as auction-purchaser for possession of the property is lost. But if he has any other cause of action against the opposite party, it cannot be said that Rule 103 bars his suit based on such cause of action. In a suit under Rule 103 the cause of action must be the adverse decision passed under Rule 101. A suit not under the provisions of Rule 103 but based on an entirely different cause of action is not governed by Article 11-A of the Indian Limitation Act, 1908.

10. Mr. Lalit, appearing for the defendants, relied principally on the judgment of the Bombay High Court in the case of Lakshman Ramjee Jadhav v. Dattatraya Ramkrishna Advilkar 31 Bom LR 765 = AIR 1929 Bom 379, in which it was held that a suit contemplated by Order XXI. Rule 103, of the Civil Procedure Code 1908, even if brought on the strength of title, was governed by Article 11-A of the Indian Limitation Act and was barred if not brought within one year of the date of the order. It was further held that a suit contemplated by Rule 103 of Order XXI was not confined to a suit for possession of the property. It was a suit to establish a right which the plaintiff claimed to the present possession of the property which right may be established either on account of his right to possession or on account of his title. In the suit from which that appeal arose, the property in dispute belonged originally to two persons Bala and Krishna. They executed three mortgages on the property. Thereafter their heirs sold the equity of redemption to one Lakshman, who was the plaintiff in the suit. Lakshman brought a suit to redeem the mortgages and obtained a decree on 15th July, 1922. It was found that the mortgage debt had been paid off. Lakshman, therefore, applied for and obtained possession of the lands on 30th November 1922. The defendants applied under Order XXI, Rule 100 to be reinstated, in possession of the lands and obtained an order in their favour on 11th April 1923. On 18th December 1924, Lakshman filed a suit to recover possession of the property from the defendants. The trial Court raised a preliminary issue, whether the suit was barred by reason of its having been brought more than a year after the order passed against him, and found it in the affirmative. The suit was accordingly dismissed and the Division Bench of this Court dismissed the appeal. It would be seen from the facts of the case that Lakshman filed the subsequent suit in the same right in which he was claiming in proceedings under Order XXI. Rule 100. We have no quarrel with this judgment. Mr. Lalit also invited our attention to another judgment of a single Judge of the Bombay High Court, viz., Mr. Justice N. J. Wadia, in the case of Krishnarao Raghunath Yardi v. Ghaman Ghama Valad Chima, 36 Bom LR 1074 = AIR 1935 Bom 144, wherein it was held that the scope of a suit under Rule 103 of Order XXI of the Civil Procedure Code filed to contest an order made under either Rule 98, or Rule 99, or Rule 101, was not the determination of the mere question of possession of the parties concerned but the establishment of the right or title by which the plaintiff claimed the present possession of the property. Now it must be remembered that that was a suit to contest an order made under Rules 98, 99 or 101 and on going through the facts of the case we find that the subsequent suit was based on the same right. In the suit in hand, the plaintiff does not seek to contest the previous order in execution and does not claim in the same right as we have shown before. This judgment will, therefore, have no application to the facts of the case.

11. Mr. Lalit also cited to us the judgment of a Division Bench of the Madras High Court in the case of Unni Moidin v. Pocker ILR (1921) Mad 227 = AIR 1921 Mad 317 and a judgment of a Division Bench of the Bombay High Court in the case of Bai Jamna v. Bai Ichha ILR (1886) Bom 604, and a judgment of a single Judge of the Bombay High Court in the case of Range Vithal v. Rikhivada Bin Ravachand (1874) 11 Bom HCR 174. In all these cases in the subsequent suit the plaintiff was claiming in the same right as in the execution proceedings and in those circumstances the suit was held to be hit by Article 11-A of the Indian Limitation Act, 1908. Mr. Lalit also referred us to two more judgments in the case of Nilo Pandurang v. Rama Patloji ILR (1885) Bom 35, and in the case of Akkammal v. Komarasami Chettiar AIR 1943 Mad 36. Those are the judgments under the provisions of Order XXI, Rule 63 of the Civil Procedure Code and we consider it unnecessary to discuss them.

12. The legal position that would seem to emerge from a perusal of the authorities cited before us is that the Court has to see whether the subsequent suit was to contest the previous order in execution. The test is not whether the subsequent suit is brought on title or is merely for possession. The real test is whether the subsequent suit is brought on the same right which is the subject-matter of the order under Rules 98, 99 or 101 of Order XXI, Civil Procedure Code. If the subsequent suit is based on the same right, the plaintiff will be contradicted by the order in the previous execution proceedings and the relief asked for by the plaintiff will not be consistent with the order obtained by the defendant in the execution proceedings. Such right can only be enforced by a suit within one year under Article 11-A of the Indian Limitation Act. 1908 (Article 98 of the Limitation Act, 1963) and Order XXI, Rule 103 of the Civil Procedure Code. The subsequent suit in that event can only be by the original decree-holder or by the auction-purchaser, but if the subsequent suit is brought on a different right, it is not necessary for the plaintiff to challenge the order under Rules 98, 99 or 101 of Order XXI of the Civil Procedure Code. Such a suit would not be hit by Order XXI, Rule 103, Civil Procedure Code or Article 11-A of the Indian Limitation Act, 1908. If the plaintiff has any other cause of action against the defendant, it cannot be said that a suit on such cause of action is barred by the previous proceeding or that such suit is under the provisions of Order XXI, Rule 103, Civil Procedure Code or is governed by Article 11-A of the Indian Limitation Act, 1908.

13. In the present case, the plaintiff is neither the decree-holder nor the auction-purchaser, but is a purchaser from the decree-holder-owner by private treaty. The previous suit by the decree-holder Watave was against the defendant No. 1 for eviction. It was a suit by a landlord against his tenant on termination of the tenancy. It was held that the defendant No. 2 was not in possession on account of the defendant No. 1 but in his own right. The present suit is based on title and is further for possession based on title and not on termination of tenancy. Such a suit is on a cause of action other than that which was the subject-matter of Rules 98, 99 and 101 of Order XXI, Civil Procedure Code. Such a suit would be governed by Article 144 of the Indian Limitation Act, 1908 (now Article 65 of the Limitation Act, 1963) and can be brought within 12 years. Both the lower Courts have held that the defendants were not in adverse possession for a period exceeding 12 years. The plaintiff is, therefore, entitled to succeed. Article 11-A of the Indian Limitation Act, 1908 has no application to the facts of this case.

14. One has to look at this matter from another angle. The suit filed by Watave against the defendant No. 1 was in his capacity as a landlord against his tenant on determination of the tenancy. In that suit, Watave bad no opportunity of proving his title against the defendant No. 1. To hold that either Watave or his successor-in-title would be barred by an Order under Order XXI, Rule 99, Civil Procedure Code, from bringing a fresh suit on title would appear to us to be unjust. Fortunately, this is not the position in law and we so hold.

15. The Second Appeal is accordingly allowed and the suit of the plaintiff will stand decreed with costs throughout.

16. Appeal allowed.


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