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Naru Shidu Gaikwad Vs. Krishna Shidu Gaikwad - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 571 of 1934
Judge
Reported inAIR1938Bom210; (1938)40BOMLR166
AppellantNaru Shidu Gaikwad
RespondentKrishna Shidu Gaikwad
DispositionAppeal dismissed
Excerpt:
.....where there is an allegation in the plaint that the plaintiff was originally in possession of the suit property and that he has been dispossessed by, the defendant.;if the plaintiff fails to prove that he was thus dispossessed within twelve years, the onus being upon him, then there is no principle of law and there is nothing in art, 142 which would make it necessary for the defendant to defend his possession by proving adverse possession. the article makes no reference to the defendant or his possession.;article 144, which is a residuary article, applies when the suit is based on the ground that the plaintiff is the owner of the property and the defendant is a trespasser having no right to remain in possession.;faki abdulla v. babaji gungaji (1890) i.l.r. 14 bom. 458, followed. - - ..........defendant no. 3 became the owner of the property. in 1914 defendant no. 3, as owner, brought a suit, being suit no. 163 of 1913, against hasabnis. to that suit he added krishna, a brother of the plaintiff, as a party defendant. krishna, in that suit, pleaded that he was in possession on his own behalf and not as claimed by defendant no. 3 that he was in possession from the mortgagor. these contentions were overruled and a redemption decree was made in favour of defendant no. 3 ; and in execution of that decree, in january, 1919, defendant no. 3 obtained possession of the property. in 1917 naru filed a suit for partition against krishna and his other brother balu. a partition decree followed in which it was declared that the plaintiff was entitled to a third share in the property......
Judgment:

Rangnekar, J.

1. The facts which give rise to this appeal are as follows :-The property, which is the subject-matter of the suit consisting of four lands situated at Kapri, was held by and belonged to a man called Vithu. In 1880 Vithu sold the property to one Ranu Padawalle. In 1882 Rarm mortgaged the property to a man called Hasabnis. In 1893 Vithu died, leaving his son Shidu, who died in 1898 leaving him surviving his three sons, Krishna, defendant No, 1, Balu, defendant No. 2, and Naru, the plaintiff. Ranu, the purchaser, died, leaving a daughter Bhagu, and she in 1904, sold one-fourth of the property to defendant No. 3 in the suit and the remaining three-fourths to one Tukaram. In 1913 Tukaram sold the three-fourths land to defendant No. 3. So that, if Ranu was the owner of the property, it is clear that in 1913 defendant No. 3 became the owner of the property. In 1914 defendant No. 3, as owner, brought a suit, being suit No. 163 of 1913, against Hasabnis. To that suit he added Krishna, a brother of the plaintiff, as a party defendant. Krishna, in that suit, pleaded that he was in possession on his own behalf and not as claimed by defendant No. 3 that he was in possession from the mortgagor. These contentions were overruled and a redemption decree was made in favour of defendant No. 3 ; and in execution of that decree, in January, 1919, defendant No. 3 obtained possession of the property. In 1917 Naru filed a suit for partition against Krishna and his other brother Balu. A partition decree followed in which it was declared that the plaintiff was entitled to a third share in the property. This happened in 1920. In 1930 Naru filed the present suit, making his two brothers, Krishna and Balu, as defendants Nos. 1 and 2, and against defendant No. 3 who, as stated above, obtained possession of the property as owner. Various defences were raised. One of them was that the suit was barred by limitation. The plaintiff's case was that the property was watan property and therefore the alienation by Vithu was void after his death, and that the property went to his son Shidu, and after the death of Shidu, the three sons, including himself, became the owners, and that as he had obtained, a decree against his two brothers, he was entitled to a one-third share in the property. He pleaded that defendant No. 3 was in wrongful possession of the property. The suit was for partition of the property and possession of his one-third share.

2. The trial Court held that the property was not watan property, but that the suit was barred by limitation. The appeal Court held that the property was watan property but agreed with the finding of the trial Court that the suit was barred by limitation, and that is the only contention raised in this appeal. It may be stated that following the practice established by Sir Amberson Marten, the respondent has filed an objection to the finding on the question as to the nature of the property, his contention being that the lower appellate Court was wrong in holding that the property was watan property.

3. The first question which arises in this case is, whether the suit falls within Article 142 or Article 144 of the Indian Limitation Act. It is clear that these two articles apply to two different sets of circumstances. Article 142, on the face of it, is restricted to a suit based on the plaintiff's prior possession lost by dispossession, and in order to bring the suit within Article 142, the plaintiff must allege that he was originally in possession of the property which is the subject-matter of the suit, and that he has been dispossessed by the defendant. In other words, he, must prove that he was dispossessed within twelve years. The whole question under Article 142 is, whether more than twelve years have elapsed since the plaintiff was dispossessed ; and, if the plaintiff fails to prove that,-the onus obviously being upon him,-the defendant is not called upon to set up his adverse possession. Article 142 makes no reference to the defendant or to his possession. That is done in Article 144. Article 144 is a residuary article, and only applies if no' other article is applicable. The article, in my opinion, applies only when there is no allegation in the plaint that the plaintiff has been in possession and has been dispossessed. It applies when the suit is based on the ground that the plaintiff is the owner of the property and the defendant is a trespasser having no right to remain in possession. This distinction has been well put by Mr. Justice Telang in Faki Abdulla v. Babaji Gungaji I.L.R. (1890) Bom. 458 and has been accepted not only by this Court, but by all other High Courts in this country.

4. The plaint in this case was not translated, and as it seemed to me that before determining which article would be applicable to the facts in the case the Court should have before it a translation of the plaint, I asked the learned advocate of the appellant to translate the plaint, which is now done. Reading the plaint, I am quite clear in my mind that the suit must fall within Article 142. The plaintiff, after setting out the facts to which I have referred, states in the plaint that he and defendants Nos. 1 and 2 are the owners of the property. Then he refers to the decree obtained by defendant No. 3 and says that defendant No. 3 has now obtained possession of the property, and that such possession is wrongful. This must, in my opinion, mean that the plaintiff has been dispossessed by defendant No. 3. It is argued that the suit was for partition, but it is clear that there can be no partition until and unless defendant No. 3 is ejected, and I think the lower Courts were right in holding that this was a suit in ejectment under Article 142. The form of the issues raised, without any objection on the part of the plaintiff, clearly supports this view. Apart from this, it is clear from the record that the plaintiff's case was that he was in possession and has been, dispossessed within twelve years, and he pleaded that he was in possession through Krishna, defendant No. 1. But it was found by both the lower Courts-and that finding is binding on me in second appeal-that Krishna was in possession for more than twelve years, not on behalf of the joint family, to which he and the plaintiff and defendant No. 2 belong, but on his own account, and adversely to the joint family and to everyone else except the mortgagor. Therefore, the position in this case is simple. The suit falls under Article 142, and it is clear on the authorities that in that case the burden of proving that he was originally in possession but was dispossessed by his opponent, is on him, If that burden is not discharged, then there is no principle of law and there is nothing in Article 142 which would make it necessary for the defendant to defend his possession by proving adverse possession. As I have said, there is no reference either to the defendant or his possession in Article 142. On the findings, it is clear that the plaintiff failed to establish that he was dispossessed within twelve years, and there is an end of the matter.

5. An interesting question, however, was raised by Mr. Gajendragadkar, and he argued that when the possession of the mortgagee came to an end on Shidu's death, there was an imaginary moment at which, constructively, the true owner must be deemed to have gone into possession. Similarly, he argues that when defendant No. 1 was dispossessed by defendant No. 3, then also the true owner must be deemed, constructively, to have gone into possession ; and he argues that there being two independent trespassers, the defendant cannot justify his possession, he being an independent trespasser, by tacking on to the wrongful possession of another independent trespasser, namely defendant No. 1, his own wrongful possession, particularly, as defendant No. 3 is not: claiming under defendant No. 1. It is clear that if defendant No. 3 had been claiming under defendant No. 1, there would have been an end of this argument. The learned advocate referred me to a decision in Ramayya v. Kotamma I.L.R. (1921) Mad. 370 which he conceded was clearly against his contention. But he also referred me to another decision in Janoki v. Baikuntha (1922) 36 Cri.L.J. 140 where the view was expressed by Richardson J. that even under Article 142, the question of two independent trespassers will arise. It seems to me that the opinion expressed by Richardson J. in the Calcutta case is clearly obiter dicta. He held on the facts of the case that the suit fell under Article 144, and it is clear that under Article 144 one independent trespasser cannot tack on to his wrongs ful possession the wrongful possession of another independent trespasser, unless he is claiming through the latter. But having held that the suit fell under Article 144, the learned Judge went on to discuss Article 142 and express, his view as to the position which may arise under that article. If it had become necessary for me to decide this somewhat difficult question, my own preference would be for the principles laid down in Willis v. Earl Howe [1893] 2 Ch. 545 and the following observation of Dart on Vendors and Purchasers :-

In order that the title of the true owner may be barred by the adverse possession of a trespasser, or a series of trespassers, the possession by them must be continuous, and so long as it is continuous it is immaterial whether they claim through one another or independently; but if a period of time should elapse, however short, after the abandonment of one trespasser who has not been in possession for the full statutory period and the entry of another, the title of the true owner is, as from the time of such abandonment, restored to him without any entry or act done on his part, for the statute does not apply to a case of a want of actual posssession by the true owner, but only to cases where the owner is out of possession and another is in possession for the prescribed time.

It seems to me that under Article 142 the last of several but independent trespassers may defeat the owner's title although he himself has been in possession for only a few days before the date. It is difficult, in my opinion, to see how the question of the defendant's adverse possession is material or arises under Article 142. But in the view which I take on the facts of this case, it is not necessary for me to express any definite opinion on this question, and I reserve to myself the right to decide it if it arises on a future occasion.

6. The appeal, therefore, fails and must be dismissed with costs.


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