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Qadir Bux Vs. Ramchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 500 of 1959
Judge
Reported inAIR1970All289
ActsLimitation Act, 1908 - Schedule - Articles 123 to 143 and 144
AppellantQadir Bux
RespondentRamchand and ors.
Appellant AdvocateJagdish Swarup and ;Bashir Ahmad, Advs.
Respondent AdvocateV.P. Misra, Adv.
Excerpt:
property - distinction between dispossession and adverse possession - articles 142 and 144 of limitation act, 1908 - suit for possession on ground of dispossession - court presumes that owner is in possession unless it is presumed or admitted otherwise - minute difference between dispossession and adverse possession - party suing on basis of dispossession, burden on party to prove that twelve years have not elapsed since dispossession - suit will fail against owner if adverse possession is proved for twelve years. - - it however, arrived at the conclusion that the plaintiff had failed to prove the alleged tenancy and had also failed to prove that he had been in possession of the land in suit at any time within twelve years of the date of the suit and the defendant's contention that he.....s.d. khare, j.1. a learned single judge of this court hearing this second appeal framed the following question and referred it to a division bench:--'if a plaintiff claims possession against the defendant alleging him to be his tenant and fails to prove the tenancy set up by him, whether in such a case article 142 of the limitation act will apply or article 144 of the limitation act?'2. it was noticed by the division bench that there was apparent conflict between two division bench decisions of this court as to how the aforesaid question be answered, and, therefore, it referred the same for the consideration of this full bench.3. the suit giving rise to the second appeal was instituted on the allegations that the defendant was the tenant of the plaintiff of a small portion of the land in.....
Judgment:

S.D. Khare, J.

1. A learned single Judge of this Court hearing this second appeal framed the following question and referred it to a Division Bench:--

'If a plaintiff claims possession against the defendant alleging him to be his tenant and fails to prove the tenancy set up by him, whether in such a case Article 142 of the Limitation Act will apply or Article 144 of the Limitation Act?'

2. It was noticed by the Division Bench that there was apparent conflict between two Division Bench decisions of this Court as to how the aforesaid question be answered, and, therefore, it referred the same for the consideration of this Full Bench.

3. The suit giving rise to the second appeal was instituted on the allegations that the defendant was the tenant of the plaintiff of a small portion of the land in dispute and had, after obtaining his permission and promising to pay rent, built a thatched construction on it six or seven years before the institution of the suit. It was further alleged that the defendant had stopped paying rent to the plaintiff from the year 1950 and when notice was sent to him in the year 1952 he denied the plaintiff's title. Another notice was, therefore, given to the defendant in the year 1954 terminating his tenancy. The plaintiff, therefore, sought the reliefs of possession and rent and damages for use and occupation. The suit was contested on the ground that the defendant was not the tenant of the plaintiff but had made the constructions on the land after obtaining permission from one Sm. Ham Kaur, the owner of the land.

The trial Court held that the plaintiff was the owner of the land in dispute and Sm. Ram Kaur had no interest in that land and decreed the suit. The lower appellate Court did not disturb the finding of the trial Court on the point of the title of the plaintiff to the land in suit. It however, arrived at the conclusion that the plaintiff had failed to prove the alleged tenancy and had also failed to prove that he had been in possession of the land in suit at any time within twelve years of the date of the suit and the defendant's contention that he had been in possession over that land for a period much exceeding twelve years could be true. The suit was, therefore, dismissed on the ground that it was barred by Article 142 of the First Schedule to the Limitation Act.

4. In the circumstances of the case it has become very important as to which Article of the First Schedule to the Limitation Act would apply. In case Article 144 applies, the burden of proof would lie on the defendant to establish adverse proprietary possession of more than twelve years. No such proof was furnished and, therefore, the suit could be decreed. On the other hand, if Article 142 applies, there can be no doubt that the lower appellate Court was fully justified in dismissing the suit.

5. Article 142 of the First Schedule to the Limitation Act provides for suits:

'for possession of immoveable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession.'

The period of limitation is twelve years and the starting point of the limitation is

'the date of the dispossession or discontinuance.'

6. Article 144 is the residuary Article, and provides for

'suits for possession of immoveable property or any interest therein not otherwise specially provided for in the Limitation Act.'

The period of limitation is twelve years and the starting point of limitation is

'when the possession of the defendant becomes adverse to the plaintiff.'

7. The scheme of the Limitation Act is to provide for a special rule of limitation in as many classes of cases as possible and then to provide a residuary Article for cases which are not governed by the specially provided for rules. In the case of suits for possession the provisions start with Article 124 and, with some exceptions, go up to Article 143 providing special rules. They are followed by the residuary Article, viz., Article 144. If there be any Article specially applicable to a suit then the residuary Article 144 cannot apply. A perusal of Articles 124 to 143 would show that a suit for possession of immovable property could be regarded to be governed by Article 142 if it could be inferred from the facts of the case (primarily from the allegations made in the plaint and ultimately from proved facts) that the plaintiff had been dispossessed or had discontinued possession. In case Article 142 is held Inapplicable to the facts of the present case the only Article applicable would be Article 144 of the First Schedule to the Limitation Act.

8. A perusal of the plaint would show that the plaintiff has nowhere alleged that he had been dispossessed or had discontinued the possession of the land in suit As stated earlier, the allegations made by him in the plaint were that he had purchased the land in the year 1946 and obtained proprietary possession over it, that a portion of the land had been let out by him to the defendant for building a thatched construction and that the defendant had stopped paying rent to him from the year 1950 and had denied his title in the year 1952. The suit was originally brought on the ground that the premises had been let out to the defendant but later the plaint was amended at the request of the plaintiff and he was allowed to sue in the alternative on the basis of his title, on payment of the requisite court-fees. The material allegations in the plaint remained unaltered. Thus there is nothing in the plaint from which it can be inferred that the defendant had been in possession over any part of the land in suit for more than 12 years or had ever dispossessed the plaintiff.

9. Where a plaintiff is suing for possession on the basis of dispossession the burden lies on him to show that the date of his dispossession or discontinuance of possession which gave him the cause of action for the suit was within twelve years of the suit, while if the suit is not for possession based on the ground of dispossession or discontinuance of possession but is a suit for possession of immoveable property not specially provided for in any other Article of the Act then Article 144 would apply and on proof of title the plaintiff's suit cannot be dismissed until the defendant further establishes his adverse possession for more than twelve years.

10. There is obviously some distinction between the mere dispossession or discontinuance of the possession of the plaintiff and the adverse possession of the defendant. Ordinarily an owner of property is presumed to be in possession of it and such presumption is in his favour where there is nothing to the contrary. It would, therefore, follow that an owner of property starts with the presumption in his favour that he is in possession of his property, but where the plaintiff himself admits or it is proved that he has been dispossessed by the defendant and, therefore, is no longer in proprietary possession of the property in suit, at the time of the institution of the suit, the Court cannot start with the presumption in his favour that the possession of the property was with him.

11. No doubt in many cases the distinction is very fine and the line of demarcation between dispossession and adverse possession is thin but the question in each case is one of burden of proof and it is incumbent on the plaintiff when he has been dispossessed or has discontinued his possession to establish the date of dispossession or discontinuance of possession and to show that it was within twelve ears of the institution of the suit (vide Article 142 of the First Schedule to the Limitation Act).

12. Primarily the Article to be applicable has to be chosen with regard to the facts stated in the plaint. There may, however, be cases in which the plaintiff's suit would be quite within limitation if the allegations made in the plaint were correct, but on a trial it is found that the allegations made by him are either not proved or proved to be false. In such circumstances the Court, after finding the correct facts, will have to find out which Article of the First Schedule to the Limitation Act would apply to those facts, and having got the right Article to find out whether the suit is within time or not. The Full Bench case of Bindhyachal Chand v. Ram Gharib Chand : AIR1934All993 fully supports this view.

13. The findings of fact recorded by the lower appellate Court were as mentioned below:--

(a) The plaintiff and the predecessor-in-interest of the plaintiff had title to the land in suit.

(b) There had been some litigation between the plaintiff on the one hand and Smt. Ram Kaur on the other regarding land lying to the south of the land in suit. The thatched construction of the defendant was not on the land regarding which there had been some litigation before.

(c) The plaintiff had failed to prove that he had let out a portion of the land in suit to the defendant at any time within twelve years of the date of the institution of the suit.

(d) The plaintiff had also failed to prove that he or his predecessor-in-interest had been in actual or constructive possession over the land in suit within twelve years from the date of the institution of the suit.

(e) The suit was, therefore, barred by Article 142 of the Limitation Act.

14. The plaintiff's case was that the defendant was in possession of a portion of the land in suit from six or seven years before the date of the institution of the suit and the defendant's case was that he was in possession of the land for more than 20 years. Since the plaintiff had failed to prove his possession within twelve years of the date of the suit it was inferred that the defence case appeared to be quite correct. No definite finding was, however, recorded by the lower appellate Court regarding the plea of adverse possession taken by the defendant.

15. Once the adverse possession of the defendant for over twelve years before the date of the institution of the suit is established, the suit has to fail regardless of the consideration whether Article 142 or Article 144 of the First Schedule to the Limitation Act is applicable. In such a case it could be said that the defendant has become the owner of the property because of his adverse proprietary possession for more than twelve years. From that finding it could also be apparent that the plaintiff had not been in possession of the property in suit at any time within twelve years of the date of the institution of the suit. However, the difficulty arises in cases where there is no clear finding on the point of adverse possession and also there is no averment in the plaint that the plaintiff had been dispossessed or had discontinued his possession. In such a case it cannot be said that the averments made in the plaint have been proved to be false.

It may be that the plaintiff had not been able to prove the facts of the tenancy. However, it cannot be said merely because of that failure that the averments made by the plaintiff in the plaint had been disproved and were false. The allegations regarding tenancy were merely 'not proved' and not 'disproved'. It is, therefore, clear that the findings arrived at by the Court could not compel it to apply Article 142 of the First Schedule to the Limitation Act to the facts of the case.

16. The suit out of which the second appeal arises was originally instituted on the basis of tenancy only, although it was mentioned in the plaint that the plaintiff was the owner of the land in suit. Subsequently the plaint was amended with the leave of the Court and the plaintiff paid full Court-fees, basing his claim on title. This was permissible because it was held in the Full Bench case of Abdul Ghani v. Mst. Babni, 1903 All WN 18 (FB) that where the plaintiff alleged that the the defendant was the tenant but it was subsequently found that the plaintiff was the owner and the defendant though not a tenant was occupying the premises with his permission the plaintiffs suit should be decreed on the basis of title. The case of Abdul Ghani, 1903 All WN 18 (FB) (Supra) was considered by this Court again in the same year in the Full Bench case of Balmakund v. Dalu, 1903 All WN 112 (FB). In that case the plaintiff came to Court alleging that he was the proprietor of a certain building and that he had leased a part of the said building to the defendant who, however, refused to pay the rent agreed upon and he sought to have the defendant ejected and to recover possession of the portion of the building occupied by him. No specific issue dealing with the plaintiff's title was framed, but evidence as to title was given on both sides. It was held that even though the plaintiff had failed to make out his case as to letting, he nevertheless was entitled to a decree on his title unless the defendant could show a better one.

17. It was because of the authority of these cases that the amendment to the plaint was allowed and the suit was converted into a suit based on title.

18. From what has been stated above It is evident that the plaintiffs suit could not have been dismissed merely on the ground that the plaintiff had come to Court on the allegation that the defendant was his tenant but had failed to prove that the defendant was his tenant. The Court had to consider whether or not Article 142 of the Limitation Act applied to the facts of the case, and in case it did not, the plaintiffs suit, on the proof of his title, could not fail unless the defendant was able to prove the adverse proprietary possession of himself or of some one through whom, he claimed, for twelve years preceding the date of the institution of the suit

19. There is no clear authority of the Privy Council or of the Supreme Court on the question of law which has been referred to this Full Bench. At one time the view taken was -- Vide Kalian v. Mohammad Nabi Khan : AIR1933All775 -- that certain observations made by the Privy Council in two of the reported cases lent support to the view that Article 142 did not apply to suits based on title. However, those decisions of the Privy Council, namely, Secy, of State for India v. Chellikani Rama Rao, ILR 39 Mad 617 : (AIR 1916 PC 21) and Kamakhya Narayan Singh v. Ram Raksha Singh AIR 1928 PC 146 were examined by a Full Bench of this Court in : AIR1934All993 (supra) and it was held that no such inference could be drawn and Article 142 can apply not only to suits based on possessory title but to suits based on title pure and simple also. We respectfully agree with that view.

20. The earliest case decided by this Court to which a reference need be made is that of Jai Chand v. Girwar Singh, 17 All. L. J. 814 = (AIR 1919 All. 403 (2)). The plaintiff, a zamindar, had sued for ejectment of the defendant on the ground that the latter was a licencee. The defendant denied the licence and set up adverse proprietary possession. The finding recorded by the lower appellate Court was that the plaintiff was a zamindar of the land in suit but the defendant had been in its possession for a very long time. It was held that the defendant having set up an adverse right the question whether the licence was ever given or revoked was immaterial and it was for the defendant to prove adverse possession. It is obvious that Article 144 of the First Schedule to the Indian Limitation Act was applied to the facts of the case.

21. It is significant to note that in the case of Jai Chand, 17 All LJ 814 = (AIR 1919 All 403 (2)) (supra) the lower appellate Court had relied upon the case of Enayat Husen v. Ali Husen, (1898) ILR 20 All 182 for the proposition that even in a case governed by Article 144 the plaintiff must not only prove a legal title to possession but a subsisting title, not barred by the law of limitation. However, when the case came to High Court a Division Bench of this Court observed that in a case governed by Article 144 it was not at all necessary for the plaintiff to establish a subsisting title not barred by the law of limitation and the burden was on the defendant to prove adverse possession. The learned Judges, while overruling the case in (1898) ILR 20 All 182 (supra) rightly observed if we may say so with respect, that the decision in that case was inconsistent with the Privy Council decision in Mohim Chunder Mozoomdar v. Mohesh Chunder Neoghi, (1889) ILR 16 Cal 473 (PC) and ILR 39 Mad 617 : (AIR 1916 PC 21) (supra).

22. It is now well settled that no suit can be governed both by Articles 142 and 144 of the First Schedule to the Limitation Act. Where Article 142 is applicable, the residuary Article 144 cannot apply. The residuary Article 144 can apply only if none of the Articles 123 to 143 (including Article 142) is applicable.

23. The next case of this Court of which a passing reference need be made is of Rustam Khan v. Janki : AIR1928All467 . It is, however, clearly distinguishable. The suit was by a Mahomedan heir against his coheirs and their transferees. It was held that the case was not governed by Article 123, and to deprive one heir of his share the co-heirs must prove adverse possession for twelve years under Article 144 of the First Schedule to the Indian Limitation Act. The question whether the case was to be governed by Article 142 or Article 144 was not, in fact, considered because the main question to be decided by the Full Bench was whether or not Article 123 could apply to the facts of the case.

24. Next comes the case of Kanhaiya Lal v. Girwar : AIR1929All753 , the view taken by a Division Bench in that case was that Article 142 of the First Schedule to the Indian Limitation Act would apply only to those suits which were based on possessory title. The case of Kanhaiya Lal : AIR1929All753 , need not detain us because the view expressed therein, that Article 142 applied only to suits based on possessory title was overruled in the Full Bench case of : AIR1934All993 (supra).

25. Then comes the case of Mohammad Ishaq v. Mst. Zindi Begum, (1931) 134 Ind. Cas. 461 (All.). The plaintiff had sued for possession alleging that some six or seven years prior to the institution of the suit the premises had been let out to the defendant for rent and that the period for which the lease had been given had expired. The defence was that the suit was barred by limitation. It was found that the plaintiff was the owner of the premises in suit and his title thereto was established. Applying Article 144 of the First Schedule to the Limitation Act it was held that it was for the defendant to prove that he had been in adverse possession of the property for more than twelve years prior to the date of the institution of the suit. It was also held that though the plaintiff's allegations could not be substantiated so far as the alleged tenancy was concerned, the title being with the plaintiffs they were entitled to succeed unless the defendant could prove that the plaintiff's title had been lost on account of adverse possession on the part of the defendant. It was also held that there being no proof that the defendant had been in adverse possession for more than twelve years the suit was bound to be decreed.

26. Next comes the case of : AIR1933All775 (supra). The plaintiff had sued the defendant for possession on the ground that he was the owner of the premises in suit which had been let out to the defendant, who had denied his title. The defendant claimed adverse proprietary possession for more than seventeen years. It was held that both on the facts of the case, the earlier case law on the subject and for the reason that Article 142 of the First Schedule to the Limitation Act did not apply to suits based on title, Article 144 of the First Schedule to the Limitation Act would apply.

27. As mentioned earlier, the view taken in the cases of Kanhaiya Lal : AIR1929All753 (supra) and Kalian : AIR1933All775 (supra) that Article 142 of the First Schedule to the Indian Limitation Act applied only to those suits which were based on possessory title was overruled by the Full Bench decision in the case of : AIR1934All993 (supra). All the earlier cases decided by this Court and referred to above were considered by the Full Bench. It is however, significant to note that the cases of 17 All. L. J. 814 = (AIR 1919 All. 403 (2)) (supra) and (1931) 134 Ind. Cas. 461 (All.) (supra) were not overruled. On the other hand it was observed by Sulaiman, C. J. that--

'The two reported cases of this Court, which also were relied upon, are those of (1931) 134 Ind. Cas. 461 (All.) and 17 All. L. J. 814 : (AIR 1919 All. 403 (2)), In neither of these cases the plaintiff was suing for possession on the ground that he had been dispossessed. In the former case the plaintiff had alleged that the premises had been let out to the defendant on rent: in the latter case the plaintiff was a zamindar who was seeking to eject the defendant treating him as a mere licensee who had set up adverse possession against the zamindar. The plaintiff being the zamindar of an agricultural village, the presumption of title as well as of possession was in his favour.'

Mukerji, J. who was also a member of the Full Bench, commenting on Kalian's case : AIR1933All775 , observed as follows:--

'On the facts of the case stated above, and as pointed out in the judgment of the case itself, there was no allegation of previous possession or dispossession. It was on that account that Article 144 applied.........'.

28. Till the case of : AIR1933All775 (supra) the consistent view of this Court was that in a suit brought against a tenant for his ejectment where the plaintiff's title was also pleaded but there was no specific allegation made in the plaint that the plaintiff had been dispossessed the proper Article to be applied was Article 144. In the Full Bench case of : AIR1934All993 (supra) it was observed that the plaintiff could not merely by clever drafting of the plaint make a case which should have normally been governed by Article 142 of the Limitation Act to fall under Article 144 and, therefore, the findings of the court have also to be taken into consideration in determining which particular provision of the Indian limitation Act would apply.

29. The next important case that came up for consideration of a Division Bench of this Court was that of Sangam Lal v. Ganga Din : AIR1946All389 . It was this case which unsettled the view taken in all the cases decided up to the year 1933. It was held that in the circumstances of the present case the correct Article applicable was Article 142 of the First Schedule to the Limitation Act. The plaintiff had filed a suit for possession of a certain house alleging that the defendants were the plaintiff's tenants and had not paid rent from one year before the institution of the suit. It was also alleged that the plaintiff's title had also been denied by the defendants. The finding of fact recorded by the court was that the plaintiff had succeeded in proving his title to the house and that the defendants had been in uninterrupted possession of the house for more than twelve years before the date of the institution of the suit.

It was also held that the defendants were not the tenants of the plaintiff as the house was never let out to the defendants by the plaintiff or his predecessor-in-interest. It was held by the court that on these findings the allegations made in the plaint did as a matter of fact amount to an allegation that the plaintiff had been dispossessed, and, therefore, Article 142 was applied and the plaintiff's suit was thrown out merely on the ground that he had failed to come to the court within twelve years of the date of his dispossession.

30. The main point for consideration is whether in such circumstances it can be said that the plaintiff had been dispossessed or had discontinued his possession within the meaning of Article 142 of the First Schedule to the Indian Limitation Act. The term 'dispossession' applies when a person comes in and drives out others from the possession. It imports ouster: a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occurred when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person in possession but in accordance with his wishes and active consent. The term 'discontinuance' implies a voluntary act and abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession, but this cannot be assumed. It must be either admitted or proved.

So strong in fact is the position of the rightful owner that even when he has been dispossessed by a trespasser and that trespasser abandons possession either voluntarily or by vis major for howsoever short a time before he has actually perfected his title by twelve years' adverse possession the possession of the true owner is deemed to have revived and he gets a fresh starting point of limitation --vide Gurbinder Singh v. Lal Singh : [1965]3SCR63 . Wrongful possession cannot be assumed against the true owner when according to the facts disclosed by him he himself had voluntarily handed over possession and was not deprived of it by the other side.

31. The Madras and Nagpur High Courts have also taken the view that in cases where tenancy was alleged but could not be proved and the plaintiff fell back on his title, Article 144 should apply. In the case of Sulaiman Rowther v. Dawood Khan Sahib, : AIR1935Mad754 , the plaintiff, though he had come to court on the allegation that the defendant was his tenant, also relied upon his title. His title was held to be proved, though the allegations regarding defendant's tenancy could not be substantiated. The defendant appeared to be in permissive user of the property. It was held that Article 144 of the First Schedule to the Limitation Act, 1908, applied to the facts of the case.

32. The Nagpur High Court in the case of Meherban Lalli v. Yusufkhan Kallu. AIR 1939 Nag. 7, held that in a suit for ejectment of a tenant where the title of the plaintiff was also relied upon and established but it could not be proved that the defendant was the plaintiff's tenant and it was found that the defendant had been in possession of the premises for more than twelve years, Article 142 could not apply for the simple reason that it could not be said to be a case where the plaintiff was dispossessed or had discontinued possession. It was held that Article 144 of the First Schedule to the Indian Limitation Act, 1908, applied.

33. In a suit governed by Article 144 the fact that the plaintiff has failed to establish that he has been in possession of the property in suit at any time within twelve years of the suit is by no means material, as was found in the case of 1903 All. WN 18 (FB) (supra). Even where the defendant could prove that he was in adverse proprietary possession of the property and his position was that of a trespasser, he had further to establish that he had been in such adverse proprietary possession for more than twelve years. The case of : [1965]3SCR63 (supra) is a clear authority for the proposition that even in cases where two successive trespassers had kept the plaintiff and his predecessor-in title out of possession for more than twelve years, the burden lay on the defendant to establish positively that he or the person through whom he claimed had been in adverse proprietary possession for more than twelve years before the date of the institution of the suit, because one trespasser could not tack on to his benefit the adverse proprietary possession by a different trespasser.

34. Where Article 144 of the First Schedule to the Indian Limitation Act, 1908, applies the question whether or not the plaintiff has been able to prove his possession within twelve years of the suit or the defendant had remained in possession for over twelve years before the date of the institution of the suit becomes immaterial, because in such cases it is for the defendant to prove adverse proprietary possession for more than twelve years preceding the suit.

35. In the suit out of which this second appeal arises the dispossession or discontinuance of possession of the plaintiff as envisaged by Article 142 was neither mentioned in the plaint nor established by the findings of the courts below. From the circumstances--

(1) that the plaintiff had failed to give any satisfactory evidence that he had exercised any act of possession over the land in dispute within twelve years of the date of the institution of the suit, and

(2) that the plaintiff had failed to prove that he had let out the same to the defendant at any time within twelve years of the date of the institution of the suit, it could not, in our opinion, be inferred that the defendant's possession must have been adverse to that of the plaintiff nor could the plaintiff's dispossession or discontinuance of possession be presumed. With great respect we are of the view that the case of AIR 1946 All. 389 (supra) was not correctly decided,

36. Our answer to the question referred to the Full Bench is as follows:--

If a plaintiff claims possession against a defendant alleging him to be his tenant and fails to prove the tenancy set up by him, Article 142 of the First Schedule to the Indian Limitation Act, 1908, will not apply, and the only Article that can apply is Article 144 of the First Schedule to the Limitation Act.

37. Let the record of the case be laid before the learned single Judge together with the above answer to the question referred to this Full Bench.


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