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Sangam Lal Vs. Ganga DIn and ors. - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtAllahabad
Decided On
Reported inAIR1946All389
AppellantSangam Lal
RespondentGanga DIn and ors.
Excerpt:
- - the munsif held that these findings of fact were not sufficient to attract article 142, limitation act, that it was-for the defendants to establish their adverse possession and that they had failed to do so. that being so, the munsif was clearly wrong in holding that article 142 did not apply to the case because the plaintiff had not alleged that he had been dispossessed or had discontinued his possession while he had been in possession of the property......dispossessed or having discontinued his possession while he was in possession of the property in suit, article 142 could not apply. he accordingly, as has already been stated, decreed the suit. the learned judge of the lower appellate court agreed with the findings of fact recorded by the munsif but held that on those findings the suit must be held to be barred by time under article 142. we shall assume that the finding arrived at by the courts below on the question of title is a satisfactory finding and is binding on this court in second appeal, and shall confine ourselves to the question whether the view taken by the lower appellate court on the question of limitation is correct.3. having heard learned counsel for the plaintiff-appellant at considerable length, we have no hesitation.....
Judgment:

Verma, J.

1. The suit out of which this second appeal has arisen was brought on 19th October 1940, by the appellant in the Court of the Munsif Haveli, Cawnpore, for possession of a house situated in the City of Cawnpore and for certain other reliefs which need not be mentioned. The trial Court decreed the suit, but the lower appellate Court dismissed it on the ground that it was barred by time under Article 142, Limitation Act. The main allegations made by the plaintiff in the plaint were that he was the owner of the house; that he had let it out to defendants 10 or 11 years before the institution of the suit on a monthly rental of Rs. 10; that the defendants had not paid any rent since 1st June 1939; that the plaintiff had brought a Suit No. 652 of 1939 in the Munsif's Court against the defendants, alleging that they were his tenants and praying for their ejectment, and that the defendants had alleged in their written statement filed in that suit that the plaintiff was not the owner of the house but that, as a matter of fact, the defendants were the owners and that there had never been any contract of tenancy between the parties. The plaintiff claimed that he was entitled to be put in possession of the house. Besides raising other pleas, the defendants alleged that they were the owners of the house; that the plaintiff was not its owner; that they had never been the plaintiff's tenants and that the plaintiff was not entitled to eject them. It was also pleaded that the plaintiff had never been in possession of the house in dispute within 12 years prior to the institution of the suit and that it was, therefore, barred under Article 142, Limitation Act. The defendants further alleged that, as a matter of fact, they had been in adverse possession of the house in dispute for over 12 years.

2. Both Courts below held that the plaintiff had succeeded in proving his title to the house. They also held that the defendants had been in uninterrupted possession of the house since 1918 and that the plaintiff's allegation that the defendants had ever paid rent to him was false. They further held as they were bound to do in view of the decision inter partes in Suit No. 652 of 1939 that the plaintiff's allegation that the house had been let out by him or by his father to the defendants and that the latter had been his tenants was not true. The Munsif held that these findings of fact were not sufficient to attract Article 142, Limitation Act, that it was-for the defendants to establish their adverse possession and that they had failed to do so. The view taken by the Munsif was that, there being no allegation in the plaint of the plaintiff having been dispossessed or having discontinued his possession while he was in possession of the property in suit, Article 142 could not apply. He accordingly, as has already been stated, decreed the suit. The learned Judge of the lower appellate Court agreed with the findings of fact recorded by the Munsif but held that on those findings the suit must be held to be barred by time under Article 142. We shall assume that the finding arrived at by the Courts below on the question of title is a satisfactory finding and is binding on this Court in second appeal, and shall confine ourselves to the question whether the view taken by the lower appellate Court on the question of limitation is correct.

3. Having heard learned Counsel for the plaintiff-appellant at considerable length, we have no hesitation in coming to the conclusion that the learned Judge of the lower appellate Court was right in holding that, on the findings of fact arrived at by the Munsif and affirmed by the learned Judge, the Article of the Limitation Act which was applicable to the case was Article 142 and that the suit was barred. The Munsif appears to have been under the impression that Article 142 can be applied only in those cases where the plaintiff alleges in so many words in the plaint that he has been dispossessed by the defendant. As has been pointed out by the Full Bench in Bindyachal Chand v. Ram Gharib Chand : AIR1934All993 , a plaintiff cannot by cleverly drafting his plaint evade the burden of proof which Article 142 casts upon a person who is suing for possession on the ground of dispossession. As a matter of fact, the allegations made in the plaint in the present case do amount to an allegation that the plaintiff has been dispossessed while in possession of the property in dispute. The allegation that the defendants had been in occupation of the house as the plaintiff's tenants amounted to an allegation that the plaintiff was in possession of the house through his tenants. The allegation that the defendants had not paid any rent since 1st June 1989, amounted to an allegation that the defendants had dispossessed the plaintiff on that date. The allegation that the defendants had falsely asserted in Suit No. 652 of 1939 that they themselves were the owners of the house further strengthened that allegation of dispossession. That being so, the Munsif was clearly wrong in holding that Article 142 did not apply to the case because the plaintiff had not alleged that he had been dispossessed or had discontinued his possession while he had been in possession of the property. The learned Judge of the lower appellate Court was, in our opinion, right in relying on the judgments pronounced in the Full Bench case in Bindhyachal Chand v. Ram Gharib Chand : AIR1934All993 mentioned above, and in holding that in view of the pleadings and the facts found, the Article of the Limitation Act which was applicable to the case was Article 142. That being so, the suit was barred by the statute of limitation and the question of the defendants' adverse possession did not arise. Article 144, being a residuary article is not applicable unless it is found that no other article is applicable to the suit. The decree, dismissing the suit, passed by the lower appellate Court must, therefore, be upheld.

4. We must not be taken to be of the opinion that the finding recorded by the Courts below on the question of the plaintiff's title is necessarily a satisfactory finding. We need mention only two matters in this connection. The first is this. The deed on which the plaintiff's title primarily rested was a sale deed which was alleged by the plaintiff to have been executed by one Mannu Lal in favour of the plaintiff's father, Kandhai Lal, on 13th November 1911. The plaintiff did not produce the original of this alleged sale deed but produced what purported to be a certified copy thereof. This copy was marked Ex. 12. The learned Judge of the lower appellate Court observes with regard to this document as follows: 'The original sale deed, Ex. 12 has not been proved. But this document is more than 30 years old.' It is difficult to understand to which document the learned Judge is referring. As we have already stated, the original had never been produced. The copy, Ex. 12, does not show the date when the copy was granted. The Munsif stated in his judgment that this copy had been taken from the Registration Department in 1919. We do not know on what basis the Munsif made this statement. Even if the copy was obtained in 1919, it was not 80 years old. It is difficult to see, in these circumstances, how and in respect of what document the presumption mentioned in Section 90, Evidence Act, could be raised. Furthermore, the learned Judge, being under amisapprehension and being, under the impression that the original sale deed had been produced, never considered whether the requirements of Section 65, Evidence Act, had been complied with and secondary evidence had been properly admitted. Then, again, even if the copy produced had been-' 30 years old, the only presumption that could be raised under Section 90 was that the signatures authenticating the copy were genuine Basant Singh v. Brij Raj Saran Singh .

5. The second matter arises out of the wholesale admission of secondary evidence of various other documents without paying any attention to the requirements of Section 65, Evidence Act, and to the mandatory nature of the provision laid down in Section 64 of that Act. No attempt was ever made by either the Munsif or the Judge to arrive at any clear finding, based on evidence, to the effect that the loss of the original had been satisfactorily proved. We would strongly recommend to the Courts below to pay greater attention to the law as laid down in the Evidence Act. The Courts below have referred to certain rulings. One of them, as given in the judgment of the Munsif is 1935 A.L.J. 879. There is no such ruling. The Judge only says 1935 A.L.J. without mentioning any page. If the Courts below meant the Privy Council decision in Basant Singh v. Brij Raj Saran Singh mentioned by us above, which is to be found at p. 847 of Basanta Singh v. Braj Raj Saran Singh it is difficult to see how the Courts below thought that it supported their view. Although this Court has had occasion to point out to the Courts below the desirability of giving the names of parties whenever they refer to any rulings, it is regrettable that some of them still persist in omitting to mention the names of parties. Another ruling relied upon by the Courts below in 1939 A.L.J. 1023 in other words, the case of Asafuddaula Beg v. Ram Ratan : AIR1940All74 . That is a decision by a learned Single Judge of this Court and does lend some support to the view taken by the Courts below. If it had stood by itself it would, of course, have been the duty of the Courts below to follow it. There are, however, two Bench decisions of this Court which lay down the law differently. They are the cases in Mumtaz Husain v. Brahmanand : AIR1936All298 and Gopal Dass v. Sri Thakurji : AIR1936All422 . The attention of the Courts below was not apparently drawn, as it should have been, to these decisions. It is hardly necessary to point out that the Bench decisions are of greater authority and should have been followed. The third and last ruling mentioned by the Courts below in this connection is the one reported in Mt. Shams-un-nissa Bibi v. Ali Asghar ('36) 23 A.I.R. 1936 Oudh 87. In the same volume, however, at p. 298 is to be found the case of Keolapati v. Harnam Singh ('36) 23 A.I.R. 1936 Outh 298 and the decision in that case runs counter to the ruling in Mt. Shams-un-nissa Bibi v. Ali Asghar ('36) 23 A.I.R. 1936 Oudh 87. There was thus no point in relying on the ruling of the Chief Court in Mt. Shams-un-nissa Bibi v. Ali Asghar ('36) 23 A.I.R. 1936 Oudh 87. It is not necessary, however, to pursue this matter any further as we have held that, even if the finding on the question of title be taken to be correct, the suit was barred by limitation. For the foregoing reasons the appeal is dismissed with costs.


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