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Mt. Sheo Kali Kuar Vs. Mt. Jaleba Kuar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1948All56
AppellantMt. Sheo Kali Kuar
RespondentMt. Jaleba Kuar
Excerpt:
.....by limitation. article 142, limitation act, clearly provides for twelve years limitation for a suit for possession when the plaintiff in possession of the property has been dispossessed or has discontinued his possession. the starting point for the commencement of limitation is clearly the date of dispossession or discontinuance. in the present case, in the plaint the appellant clearly set out her case of dispossession. in the written statement filed by the respondent, unfortunately the facts, are not clearly set out at all. the learned munsif seems to have implicitly believed the statement of ram deo rai to the effect that the plaintiff as well as the defendant-respondent were in possession of half the property left by alrakh rai. he has no doubt clearly expressed himself on> the..........by limitation. article 142, limitation act, clearly provides for twelve years limitation for a suit for possession when the plaintiff in possession of the property has been dispossessed or has discontinued his possession. the starting point for the commencement of limitation is clearly the date of dispossession or discontinuance. it follows, therefore, that in order to dispose of this plea of limitation based upon article 142, limitation act, it is absolutely essential to find the date of dispossession or the date of discontinuance of possession. in the present case, in the plaint the appellant clearly set out her case of dispossession. it was made abundantly plain that, according to the plaintiff, dispossession of the plaintiff took place in pursuance of the compromise filed on 4th.....
Judgment:

Wali Ullah, J.

1. This is a plaintiff's appeal which arises out of a suit for possession over some zamindari property which admittedly belonged to one Alrakh Rai, the father of the plaintiff. It appears that Alrakh Rai had a brother known as Sukhbas Rai who died in the lifetime of Alrakh Rai. Mt. Jaleba Kuar, defendant 1, is the wife of Sukhbas Rai. After the death of Sukhbas Rai, his property came into possession of Mt. Jaleba Kuar, It is common ground in the present litigation that the two brothers were separate. After the death of Alrakh Rai, some time in the year 1926, it appears that during the mutation proceedings in the revenue Court a compromise was effected between Mt. Sheo Kali, the present plaintiff, represented by her husband Kedar Rai who figures as defendant 2, and Mt. Jaleba Kuar, the contesting defendant. Thereafter on 23rd May 1938 the present suit was instituted by the plaintiff obviously for avoiding the compromise and obtaining possession over the portion of the property left by Alrakh Rai over which Mt. Jalfiba Kuar was in possession in pursuance of the compromise. The suit was contested on various grounds including one with regard to limitation.

2. This case has had a prolonged and chequered history; It appears to have been first of all decided and decreed ex parte in October 1938. Subsequently the ex parte decree was set aside and the case was decided on merits. With regard to the other issues raised in the case, findings were recorded finally and I am no longer concerned with those issues. It appears that the case was remanded on some occasions by the lower appellate Court to the Court 'of first instance. On the last occasion, it was on 12th May 1941, that the suit was remanded to the Court of first instance specifically with the direction that the question of limitation should be properly decided by the Court of first instance. Parties were given 'opportunity to adduce fresh evidence, if they liked, on that question. The learned Munsif, by his judgment dated 31st July 1944, decided the question of limitation against the plaintiff. He held that Article 142, Limitation Act, applied to the case. Accepting the evidence of one Ram Deo Rai, a witness on behalf of the plaintiff, the learned Munsif held that the defendant must be deemed to have been in possession of one-half of the property left by Alrakh Rai the property in dispute since 17th January 1926. The learned Munsif believed the evidence of Ram Deo Rai and held that Alrakh Rai had died on that date. In view of these findings the suit was dismissed as time barred.

3. On appeal the learned Civil Judge affirmed the findings of the Court of first instance and dismissed the appeal. Learned Counsel for the plaintiff-appellant has strongly contended that in view of the pleadings of the parties and the findings recorded by the lower appellate Court, there can be no doubt that the Court below was in error in holding that the claim was barred by limitation under Article 142, Limitation Act.

4. Learned Counsel for the respondent has strenuously contended that inasmuch as the onus of proof of having been in possession within twelve years of the date of the institution of the suit is definitely on the plaintiff in the present case, and the plaintiff has failed to discharge that onus, the suit must, therefore, be held to be clearly barred by limitation. Article 142, Limitation Act, clearly provides for twelve years limitation for a suit for possession when the plaintiff in possession of the property has been dispossessed or has discontinued his possession. The starting point for the commencement of limitation is clearly the date of dispossession or discontinuance. It follows, therefore, that in order to dispose of this plea of limitation based upon Article 142, Limitation Act, it is absolutely essential to find the date of dispossession or the date of discontinuance of possession. In the present case, in the plaint the appellant clearly set out her case of dispossession. It was made abundantly plain that, according to the plaintiff, dispossession of the plaintiff took place in pursuance of the compromise filed on 4th June 1926 in the revenue Court. In the written statement filed by the respondent, unfortunately the facts, are not clearly set out at all. It is vaguely asserted no doubt in one paragraph that the suit is barred by limitation. In another paragraph it is roundly declared that the claim is barred by estoppel. In a third paragraph it is set out that the plaintiff has no title whatsoever. Beyond these bald statements no definite case of dispossession of the plaintiff or of the date when Alrakh Rai, the admitted owner of the property, died is indicated. When we come to the evidence-led in the case-evidence so far as can be ascertained from a close examination of the two judgments of the Courts below - one finds nothing in it except a reference to the evidence of one Ram Deo Rai. The learned Munsif seems to have implicitly believed the statement of Ram Deo Rai to the effect that the plaintiff as well as the defendant-respondent were in possession of half the property left by Alrakh Rai. The lower appellate Court on the other hand, in my view, definitely rejects the testimony of Ram Deo Rai as it says that 'the solitary statement of Ram Deo Rai without any corroboration from other of at or documentary evidence cannot be believed.' In this state of the evidence in the case, one has to consider the validity of the findings recorded by the lower appellate Court. The learned Judge of the Court below has to my mind not correctly appreciated the points which he had to decide before he could hold one way or the other that the claim was either barred or not barred by limitation. He seems to have-over-emphasized the question whether the date of the death of Alrakh Rai was known definitely. He has no doubt clearly expressed himself on> the question of the onus of proof. The learned Judge after rejecting the testimony of Ram Deo Rai with regard to possession of the parties in the interval between the death of Alrakh Rai and the date of the compromise in June 1926 seems to have lost sight of the question of possession and concentrated his attention on the time of the death of Alrakh Rai. It seems to me that it was no part of the duty of the plaintiff to prove strictly the date of the death of Alrakh Rai. Essentially what the plaintiff had to prove was the date of her dispossession or the date of her discontinuance which she has clearly set out in the plaint itself. After discarding the testimony of Ram Deo Rai in regard to the respective possession of the parties prior to the date of the compromise, it seems to me that in the absence of any definite evidence of possession of either party prior to the date of the compromise, it must be presumed that possession followed title. This would strongly Support the case set up by the plaintiff in paras. 7 and 8 of the paint where it is made clear that the date of disposition was really 4th June 1926 - the date when the compromise was effected between the parties in the revenue Court.

5. Learned Counsel for the defendant-respondent was specifically asked by me if he was in a position to point to any evidence other than that of Ram Deo Rai on which the question of dispossession of the plaintiff could be determined. He was unable to point to any such evidence and his contention was that inasmuch as Ram Deo Rai, the plaintiff's witness himself, made a statement with regard to the possession of the parties prior to the date of the compromise, it was no longer necessary for the defendant to adduce any other evidence on the question. On a careful consideration of the arguments adduced by the learned Counsel for the two parties and on a close examination of the judgments of the two Courts below, it seems to me that this is one of those cases where it must be held that the question of dispossession or discontinuance of possession prior to the date of the compromise, namely 4th June 1926, is not at all clear. In my view, therefore, possession of the property in question must be deemed to follow title. It follows, therefore, that the dispossession of the plaintiff which no doubt took place by reason of the compromise cannot be dated back to the date of the death of Alrakh Rai or to any date earlier than 4th June 1926. In this view of the matter, to my mind, the claim was not in any way barred by limitation' under Article 142, Limitation Act.

6. As no other point in issue between the parties remains to be decided, I can dispose of the appeal without remanding it to the lower appellate Court. I would accordingly allow the appeal, set aside the decree passed by the Courts below and decree the suit. In view of the peculiar circumstances of the case, the parties will bear their own costs. Leave to appeal under the Letters Patent is refused.


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