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Bhole Singh Vs. Bhagwant Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.10
AppellantBhole Singh
RespondentBhagwant Singh
Cases ReferredNarain Das v. Lalita Prasad A.W.N.
Excerpt:
.....if the plaintiff had come into court within twelve years of the date of the confirmation of his auction-sale, it may be that the courts below are perfectly right in holding that no sort of defence on the merits would have been open to the defendant, in view of his proceedings, and particularly in view of the fact that he was a bidder at the auction-sale of the 21st april 1898. the whole point of the law of limitation is, however, that a defendant cannot be put to the defence of his title at all unless the plaintiff claims from the courts the relief to which he is entitled within what the legislature has laid down to be a suitable time with reference to the facts of each particular case. i hold that the suit as framed is barred by article 142 of the first schedule to the indian..........had been put up for sale a third time on april the 21st, 1898. the defendant appeared at that auction-sale, said nothing about his previous purchase, but actually bid for the property as if it still belonged to his judgment-debtor. he was out-bid by the plaintiff, who thus became auction-purchaser at this third sale held on april the 21st, 1898. this sale was confirmed by the court on the 30th of may 1898 and the plaintiff obtained formal delivery of possession on the 15th of may 1899. it must be remembered, therefore, that his judgment-debtor was still in possession at the date of the auction-sale, but the decree-holder, (the present defendant) as auction-purchaser under his first two decrees, had himself obtained formal delivery of possession before the plaintiff did so. the.....
Judgment:

Piggott, J.

1. This was a suit for recovery of possession over certain immoveable property and the only question for determination before me is one of limitation. In stating this question, I think it reasonable to accept everything which the Courts below have found against the conduct of the defendant upon the facts of the case. It appears that the defendant, holding three distinct mortgages on the property in suit, brought three distinct suits, one upon each mortgage. He obtained decrees and put the property up for sale three times, once upon each decree. He purchased himself at auction under two of his decrees on the 21st February 1898, and obtained formal possession on the 7th of September 1893 and again on the 30th of January 1899. In the meantime, the same property had been put up for sale a third time on April the 21st, 1898. The defendant appeared at that auction-sale, said nothing about his previous purchase, but actually bid for the property as if it still belonged to his judgment-debtor. He was out-bid by the plaintiff, who thus became auction-purchaser at this third sale held on April the 21st, 1898. This sale was confirmed by the Court on the 30th of May 1898 and the plaintiff obtained formal delivery of possession on the 15th of May 1899. It must be remembered, therefore, that his judgment-debtor was still in possession at the date of the auction-sale, but the decree-holder, (the present defendant) as auction-purchaser under his first two decrees, had himself obtained formal delivery of possession before the plaintiff did so. The present suit was brought on the 1st of June 1910, and I have to determine which is the Article of the first Schedule to the Indian Limitation Act (IX of 1908) by which that suit is governed. The suit as brought is one to which Article 142 of the said Schedule would apply provided the plaintiff succeeded in establishing the necessary facts. What the plaintiff says is, that he obtained actual, and not merely formal possession on the 15th of May 1899 but lost that possession some time in the month of July 1899 owing to an adverse decision of the revenue Courts. If these facts were established, the suit would be one for possession of immoveable property when the plaintiff while in possession of the property has been dispossessed, Article 142 of the Indian Limitation Act would apply; the date of the origin of the cause of action would be the month of July 1899, and the suit would be within time. In such a suit, however, the burden of proof is on the plaintiff to satisfy the Court that he was actually in possession within limitation. There is no finding in favour of the plaintiff by either of the Courts below on this point, nor has either of them applied Article 142 of the Schedule, nor has either of them calculated the origin of the cause of action from the month of July 1899. Both the Courts below have held that the plaintiff has a cause of action dating from the 15th of May 1899, the date on which formal delivery of possession to him took place under orders of the Court. The learned Munsif himself does not expressly state what Article of the Limitation Act he proposes to apply, but the learned Subordinate Judge on first appeal has expressly applied Article 144. This Article cannot be applied unless the Court is prepared to find that the suit is one for possession of immoveable property not specially provided for under any of the other Articles of the Schedule in question. This seems to me clearly impossible because the suit as framed is one to which Article 142 would apply, and it discloses facts which would make Article 133 of the Schedule applicable. The Courts below have held that this Article 138 of the Schedule is excluded by the principle of the ruling of this Court in Narain Das v. Lalita Prasad A.W.N. (1899) 56. That ruling obviously does not exclude Article 138, because the particular case then before the Court was decided without any determination of the question whether Article 138 or Article 144 would have applied to the facts then before the Court. By implication it seems to m that this ruling is entirely against the plaintiff; but I will refer to this point again presently. There are other authorities for holding that Article 138 of the Schedule would apply to the present suit, as for instance, cases reported as Sadashiv Mahadu v. Narayan Vitha Mawal 35 B. 452 : 13 Bom.L.R. 661 : 11 Ind. Cas. 987 and as Venkatalingam v. Veerasami 17 M. 89. I come back, therefore, to what seems to me the one question really arguable, namely, whether or not the Courts below should have found in favour of the plaintiff on the ground that he has made out a sufficient case for applying the Article of Limitation Act on which his suit was actually based, namely, Article 142. I do not think the case for the plaintiff can be pat any higher than this, namely, that the Court should accept his certificate of formal delivery of possession on the 15th of May 1899 as prima facie sufficient proof that he obtained actual possession on that date. If this proposition can be affirmed, then it would not be necessary for the plaintiff to prove that he actually lost possession in the month of ' July following, or on any specific date; he could claim to have made out a good title, plus possession within twelve years of the date of the suit. Now it is on this very point that the ruling in Narain Das v. Lalita Prasad A.W.N. (1899) 56 already referred to, seems to me against the plaintiff. Applying the principle involved in that ruling to the facts of the present case, I hold that if the judgment-debtor had been in actual possession on the 15th of May 1899, then the Court would have been bound to accept the plaintiff's certificate as sufficient proof that the judgment-debtor Was actually ousted from possession on that date and that possession passed to the plaintiff. The case is otherwise when the judgment-debtor was not in possession on the 15th of May 1899, but another person was in possession as auction-purchaser under a previous sale. As against such auction-purchaser, formal delivery of possession to the present plaintiff is not proof that he was actually ousted. Something has been said before me in argument as to the dishonesty of the defendant's proceedings, and as to the question of estoppel. These considerations are quite irrelevant to the question of limitation. If the plaintiff had come into Court within twelve years of the date of the confirmation of his auction-sale, it may be that the Courts below are perfectly right in holding that no sort of defence on the merits would have been open to the defendant, in view of his proceedings, and particularly in view of the fact that he was a bidder at the auction-sale of the 21st April 1898. The whole point of the law of limitation is, however, that a defendant cannot be put to the defence of his title at all unless the plaintiff claims from the Courts the relief to which he is entitled within what the Legislature has laid down to be a suitable time with reference to the facts of each particular case. I hold that the suit as framed is barred by Article 142 of the first Schedule to the Indian Limitation Act, 'because the plaintiff has failed to prove the ingredients necessary to bring his suit under the operation of that Article. I hold that the facts disclosed are such that the suit would have been maintainable under Article 138 of the same Schedule if it had been filed two days earlier, but that it is barred under that Article because it was brought more than twelve years from the date of the confirmation of the auction sale. I hold that Article 144 of the same Schedule cannot be applied at all, because, from any point of view, the suit, is one provided for by another Article in the same Schedule. I, therefore, accept this appeal and, setting aside the decrees of both the Courts below, dismiss the suit with costs throughout, including in this Court fees on the higher scale.


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