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Kalooram and anr. Vs. Mangilal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberS.A. No. 210 of 1973
Judge
Reported inAIR1984MP147
ActsLimitation act, 1908 - Schedule - Articles 142 and 144; Evidence Act, 1872 - Sections 101 to 104
AppellantKalooram and anr.
RespondentMangilal
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateS.L. Garg, Adv.
DispositionAppeal allowed
Cases ReferredRajender Singh v. Santa Singh
Excerpt:
.....that the plaintiff had failed to establish that the defendants had taken possession of the suit property on 15-7-1949 and dispossessed the plaintiff, as alleged by the plaintiff. it was, therefore, urged that as the plaintiff had failed to establish that the defendants had taken possession of the suit property within 12 years next before the date of institution of the suit, the trial court was right in holding that the suit was barred by limitation. in reply, shri garg, learned counsel for the plaintiff-respondent, conceded that the provisions of the limitation act, 1963 would not apply in the instant case and that the suit would be governed by the provisions of the limitation act, 1908. he, however, contended that in view of the admission of the defendants that parties were in..........15th july 1949, defendant no. 1 unlawfully broke open the lock and forcibly took possession of the suit property. the plaintiff instituted the suit on 6-5-1961 for recovery of possession of the suit property and for mesne profits. the suit was resisted by the defendants inter alia on the ground that it was barred by limitation. the trial court found that the plaintiff had failed to establish that the suit property was let out by the plaintiffs father to pannalal sanwara and that mangilal s/o. pannalal had handed over the possession of the premises in question to the plaintiffs father. the trial court further found that the plaintiff failed to establish that defendant no. 1 had on 15-7-1949 taken possession of the suit property. the trial court further held that as the plaintiff had.....
Judgment:

G.G. Sohani, J.

1. This is defendants' second appeal arising out of a suit for possession of a portion of -suit house situated at Neem Chowk, Ratlam. The plaintiffs case, in brief, was that Jeetmal, father of the plaintiff, and Manakchand, father of the defendants, were brothers and members of a Joint Hindu Family and that on 10th December 1922, a partition was effected between the members of the joint Hindu family, as a result of which, a portion of the suit house came into possession of the plaintiffs father. It was further averred that the suit properly was then let out to one Pannalal Sanwara and after his death the leased premises were in occupation of his son Mangilal Sanwara, who vacated the leased premises, which was then locked by the plaintiffs father. It was further averred that on 15th July 1949, defendant No. 1 unlawfully broke open the lock and forcibly took possession of the suit property. The plaintiff instituted the suit on 6-5-1961 for recovery of possession of the suit property and for mesne profits. The suit was resisted by the defendants inter alia on the ground that it was barred by limitation. The trial court found that the plaintiff had failed to establish that the suit property was let out by the plaintiffs father to Pannalal Sanwara and that Mangilal s/o. Pannalal had handed over the possession of the premises in question to the plaintiffs father. The trial Court further found that the plaintiff failed to establish that defendant No. 1 had on 15-7-1949 taken possession of the suit property. The trial Court further held that as the plaintiff had failed to establish that he had been dispossessed within 12 years next before the institution of the suit, the plaintiffs suit was barred by limitation by virtue of the provisions of Article 142 of the Limitation Act, 1908. In this view of the matter, the trial Court dismissed the plaintiffs suit. On appeal, the lower appellate Court held that the trial Courterred in applying the provisions of the Limitation Act, 1908, and that the provisions of Article 65 of the Limitation Act, 1963 were attracted. The lower appellate Court further held that as the defendants failed to prove their adverse possession for more than 12 years, the trial court was, therefore, not justified in holding that the suit was barred by limitation. The lower appellate Court, therefore, decreed the plaintiffs suit. Hence, the defendants have preferred this appeal.

2. Shri Sanghi, learned counsel for the defendant-appellants, contended that the lower appellate Court erred in law in applying the provisions of the Limitation Act, 1963 even though the suit was filed on 6th May 1961 when the old Limitation Act of 1908 was in force. It was contended that the suit was based on title and dispossession and hence, the provisions of Article 142 of the Limitation Act, 1908 were attracted. The learned counsel further contended that the plaintiff had failed to establish that the defendants had taken possession of the suit property on 15-7-1949 and dispossessed the plaintiff, as alleged by the plaintiff. It was, therefore, urged that as the plaintiff had failed to establish that the defendants had taken possession of the suit property within 12 years next before the date of institution of the suit, the trial Court was right in holding that the suit was barred by limitation. The learned counsel further contended that in any event, the lower appellate Court erred in passing a decree for possession of even that portion of the suit house on the ground floor, of which possession was not claimed by the plaintiff. In reply, Shri Garg, learned counsel for the plaintiff-respondent, conceded that the provisions of the Limitation Act, 1963 would not apply in the instant case and that the suit would be governed by the provisions of the Limitation Act, 1908. He, however, contended that in view of the admission of the defendants that parties were in joint possession of the suit property, the provisions of Article 144 of the Limitation Act, 1908 were attracted and that as the defendants had failed to establish that they had perfected their title by adversepossession, the lower appellate Court was right in decreeing the plaintiffs suit. The learned counsel, however, conceded that while decreeing the plaintiffs suit, the lower appellate Court had erred in passing a decree for possession of that portion of the suit house on the ground floor, of which possession was not claimed by the plaintiff.

3. Before I proceed to appreciate the main question raised in this appeal as to whether the provisions of Article 142 or Article 144 of the Limitation Act, 1908 are attracted in the instant case, it is necessary to note a few facts, which are no longer disputed. It is admitted that on 21-2-1950, the defendants had filed a suit in the Court of Additional District Judge, Ratlam, claiming partition of joint family property, which included, amongst other property, the suit house situated at Neem Chowk, Ratlam, alleging that the joint family property was in joint possession of all the coparceners. That suit was dismissed by the learned Additional District Judge, Ratlam, by his judgment Ex. P-3. The present defendants, who were plaintiffs in that suit, thereupon preferred an appeal before the High Court, which was dismissed, vide judgment Ex. P-4 passed by this Court on 22nd March 1966. It was held by this Court that it was clearly established that by the year 1922, there was a partition between the members of the Joint Hindu Family and that the back portion of the suit house situated at Neem-Chowk, which is the property in dispute in the instant case, had fallen to the share of the plaintiffs father Jeetmal, who remained in exclusive possession of the property fallen to his share for more than 12 years. In view of this judgment, it was not rightly disputed before me that the title to the back portion of the house at Neem Chowk, Ratlam, which is the subject-matter of present suit, vested in the plaintiffs father and that he had been In exclusive possession thereof for more than 12 years since the year 1922. Now the plaintiff instituted the present suit against the defendants alleging that the defendants had forcibly taken possession of the suit property on 15th July 1949. The question for consideration is whether in view of thepleadings of the parties, the provisions of Article 142 or Article 144 of the Limitation Act, 1908 would be attracted.

4. It is now well settled that under the old Limitation Act of 1908, all suits for possession, whether based on proprietary title or on the ground of previous possession, were governed by Article 142 where the plaintiff, while in possession, was dispossessed. As held by the Supreme Court in Smt. Raj Rani v. Kailash Chand, AIR 1977 SC 1123, in cases governed by the Limitation Act, 1908, a plaintiff admitting dispossession, in suits based on title had to prove that he was in actual or constructive possession within 12 years. The contention advanced on behalf of the plaintiff-respondent was that the fact that n the previous suit for partition instituted by the defendant-appellants, they had contended that there was no partition and that the suit property was the joint family property in possession of all the members of the family would attract the provisions of Article 144 of the Limitation Act, 1908, cannot be upheld. In view of the Judgment of the High Court in that case, it is no longer open to the parties to contend that the suit property was joint family property after the year 1932 or that the parties were in joint possession of the suit property. Moreover, in view of the specific allegations made by the plaintiff of prior possession and dispossession, the provisions of Article 142 of the Limitation Act, 1908, must be held to be applicable in the instant case. The lower appellate Court thus erred in law in holding that the suit was governed by Article 144 of the Limitation Act, 1908 and that the burden was on the defendants to prove that they were in adverse possession for more than 12 years.

5. Now, the lower appellate Court having failed to appreciate the evidence on record to find out as to whether the plaintiff had proved dispossession by the defendant on 15-7-1949, as alleged, or within 12 years next before the date of institution of the suit, it is necessary to turn to the evidence to ascertain whether there is a case for interference with the finding of the trial Court that the plaintiff had failed to establish dispossession within 12 years. Now, the plaintiffs case was that the defendants had, on 15-7-1949, broken open the lock, which was put on the suit property by the plaintiffs father, after the premises were vacated by PW-3 Mangilal. Apart from the plaintiffs own statement, which was disbelieved by the trial Court for cogent reasons, as I shall presently show, there is no other oral or documentary evidence to substantiate the allegation of the plaintiff. The plaintiff admitted that he had not lodged any report with the police that his lock was broken open by the defendants nor had he given any notice to the defendants in that behalf. It is significant to note that in the reply Ex. D-2 dated 21-7-1949 given by the plaintiffs father to the defendants' notice claiming partition of the joint family property, it was not alleged that the defendants had forcibly took possession of the suit property on 15-7-1949, an incident which had taken place a week before the sending of the reply Ex. D-2 but all that was stated was, without mentioning any date, that the defendants had unlawfully taken possession of the suit property. The plaintiff, failed to examine any person to substantiate his story that on 15-7-1949, the defendants had broken open the lock, on the suit property and taken forcible possession thereof the plaintiff admits that he and his father came to know about that fact in the course of a community function in which the plaintiff and his father were participating. PW-3 Mangilal deposed that he had vacated the suit property in Baishakh Samvat 2006, i.e. some time in April 1949 but admitted that no accounting with regard to the rent payable by him had taken place at that time. He stated that he had not obtained any receipt for rent though the allegation of the plaintiff is that it was in pursuance of a rent note Ex. P-2 executed in the year 1944 that Pannalal, father of PW-3 Mangilal had taken the suit property on rent. The plaintiff also did not produce any accounts to show that any rent was received by the plaintiff or his father from Pannalal and his son PW-3 Mangilal. PW-4 Mangilal s/o Hazarimal, another tenant in the suit house, deposed that during the community function in the 'Chaturmas' of the year 1949, the plaintiff or his father had nevercomplained to him that defendants had forcibly occupied the suit property. PW-2 Chandmal deposed, on the basis of Ex. P2, a document relating to cremation of Pannalal, that Pannalal died on 19-7-1948. PW-3 Mangilal admitted that he had never paid any rent after the death of his father and that within 6 months of the death of his father, defendant Kaluram had lodged a report of theft against him and that he was taken in police custody. In view of all this evidence on record, I see no valid reason to interfere with the finding of the trial Court that the testimony of the plaintiff in this behalf was unreliable and that the plaintiff had failed to prove that PW-3 Mangilal had vacated the premises in April 1949 or that the defendants had forcibly took possession of the suit premises on 15-7-1949. It was urged that the defendants should have disclosed as to when they had come into possession of the suit property. But in view of the applicability of Article 142 of the Limitation Act, 1908, the burden was on the plaintiff to establish that he was in possession of the suit property within 12 years, which he failed to discharge.

6. It was urged on behalf of the plaintiff-respondent that the defendant-appellants should not be allowed to take advantage of the provisions of the Limitation Act to defeat the plaintiffs claim. But as observed by the Supreme Court in Rajender Singh v. Santa Singh, AIR 1973 SC 2537, one of the objects of the law of Limitation is to prevent disturbance or deprivation of what may have been lost by a party's own inaction, negligence or laches. I may usefully refer to the following observations of the Supreme Court at page 2543 :

'It is no! possible in the absence of any provision, which would entitle the plaintiffs to exclude time and thus bring their suit within 12 years period of limitation, to accept a contention, which would enable the plaintiffs to escape the mandatory provisions of Section 3 of the Act read with Section 28 and Articles 142 and 144 of the Limitation Act of 1908. Courts of justice cannot legislate or reconstruct law contained in a statute or introduce exceptions when statutory lawdebars them from doing so. Even hard circumstances of a case do not justify the adoption of such a course. Moreover, we fail to see how the plaintiffs could complain of hardship when their own negligence or failure to act in time enabled defendants to acquire rights by reason of the operation of a law of limitation with the wisdom or justice of which we are not concerned here.'

Therefore, in view of the provisions of Article 142 of the Limitation Act, 1908 the trial Court was right in holding that the plaintiffs suit was barred by limitation.

7. For all these reasons, this appeal is allowed with costs. The judgment and decree passed by the lower appellate Court are set aside and those passed by the trial Court are restored. Counsel's fee according to scale, if certified.


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