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Puran Singh S/O Attra Singh and anr. Vs. Ram Murti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 106 of 1957
Judge
Reported inAIR1963P& H393
ActsLimitation Act, 1908 - Sections 28 - Schedule - Articles 28, 142 and 144
AppellantPuran Singh S/O Attra Singh and anr.
RespondentRam Murti and ors.
Appellant Advocate H.L. Sarin and; V.P. Sood, Advs.
Respondent Advocate H.S. Doabia, Adv.
Cases Referred and Subodh Gopal Bose v. Province of Bihar
Excerpt:
.....under article 227 of the constitution. - he further held that the suit was governed by article 142 of the indian limitation act and the plaintiff having failed to prove his possession of the land in dispute within 12 years, bis suit was barred by limitation. that being so, his suit must fail......the ownership of the plaintiff and pleaded that defendants 9 to 12 had become the owners of this suit land by adverse possession. defendants 1 to 8 alleged that they were occupying the land in dispute as tenants under defendants 9 to 12.5. on the pleadings of the parties, the following issues were framed :-1. whether the defendants nos. 10 to 12 have become owners by adverse possession for statutory period? 2. is the suit within time? 3. has the plaintiff no locus standi to file the suit? 4. relief. 6. the trial judge held that defendants 10 to 12 had become owners of the suit land by adverse possession. he further held that the suit was governed by article 142 of the indian limitation act and the plaintiff having failed to prove his possession of the land in dispute within 12 years,.....
Judgment:

P.C. Pandit, J.

1. This appeal arises out of a suit brought on 28-2-1955 by Puran Singh for possession of the land in dispute measuring 2 bighas and 4 biswas comprised in khasra No. 389 situate in village Dharali, District Ambala.

2. According to the allegations of the plaintiff, he was the owner of the land in dispute and Bhag Singh and others, defendants 1 to 8, had taken forcible possession of the same in kharif 1952.

3. A preliminary objection was raised by defendants 1 to 8 that Tilak Ram, Ram Multi, Ram-Sarup and Raj Kumar were also necessary parties to the suit as defendants 1 to 8 had taken the land on lease from them. A preliminary issue was, therefore, struck on 22-6-1955 as to whether these persons were necessary parties to the suit. On 29-8-1955 the counsel for the plaintiff stated that he had no objection to making these persons as parties. The amended plaint wag, consequently filed on 1-10-1955, in which these persons were added as defendants 9 to 12. It may be mentioned that since Tilak Ram had died, his widow Smt. Shakuntala was impleaded as defendant No. 9.

4. The suit was contested by alt the defendants, who denied the ownership of the plaintiff and pleaded that defendants 9 to 12 had become the owners of this suit land by adverse possession. Defendants 1 to 8 alleged that they were occupying the land in dispute as tenants under defendants 9 to 12.

5. On the pleadings of the parties, the following issues were framed :-

1. Whether the defendants Nos. 10 to 12 have become owners by adverse possession for statutory period?

2. Is the suit within time?

3. Has the plaintiff no locus standi to file the suit?

4. Relief.

6. The trial Judge held that defendants 10 to 12 had become owners of the suit land by adverse possession. He further held that the suit was governed by Article 142 of the Indian Limitation Act and the plaintiff having failed to prove his possession of the land in dispute within 12 years, bis suit was barred by limitation. On issue No. 3, however, it was held that the plaintiff had locus standi to file the present suit. On these findings, the suit was dismissed.

7. When the matter came up in appeal before the learned Senior Subordinate Judge, he came to the conclusion that the suit was governed by Article 144 of the Indian Limitation Act and not Article 142 as decided by the trial Court. He also found that defendants 9 to 12 were in adverse possession of the suit land for the statutory period. They, however, gave up possession sometime before 1952, when defendants 1 to 8 came into possession. According to the learned Judge, there was, however, nothing in the revenue entries to show that defendants Nos. 1 to 8 were in possession as tenants under defendants 9 to r2. It was, therefore, found that the rights which had been acquired by defendants 9 to 12 in this land by virtue of their adverse possession came to an end, when they gave up the possession of this land. The learned Judge, therefore, found that the Tights of the plaintiff in the property in suit had, therefore, not been lost and he was entitled to the possession of the same against all the defendants. As a result, he accepted the appeal, set aside the judgment and decree of the trial Court and granted the plaintiff a decree for possession with costs throughout. Against this, the present second appeal has been filed by the defendants.

8. The first question for determination in this case is whether Article r42 or Article 144 of theIndian Limitation Act applies to this case. The plaintiff in his plaint had stated that he was the owner of the land in dispute and had been paying its land revenue. Defendants 1 to 8 got into possession forcibly in kharif 1952. It is true that the plaintiff did not say in so many words that he was actually in possession of the property and had been dispossessed therefrom by defendants 1 to 8, but reading the plaint as a whole I have no manner of doubt that the plaintiff did plead possession and dispossession. It is not necessary that the plaintiff should have alleged this in so many words. What is necessary is whether on the allegations of fact made by him it is either alleged to follow as a necessary inference that he alleged possession and dispossession (see in this connection the observations of Dalip Singh, J., in the Full Bench decision of Behari Lal v. Narain Das, AIR 1935 Lah 475 (FB) ). I am, therefore, of the view that the trial Court was right in holding that Article 142 of the Indian Limitation Act applied to this case and the lower appellate Court was wrong in applying Article 144.

9. In order to succeed, therefore, the plaintiff has to prove two things, (1) his title to the land in dispute, and (2) his possession of the same within 12 years of the institution of the suit. The findings of fact given by the lower appellate Court are these : (a) Originally, the plaintiff was the owner of this land; (b) defendants 9 to 12 were in adverse possession of this land for the statutory period; (c) defendants 9 to 13 gave up possession of this land sometime before 1952, when defendants 1 to 8 entered into possession; and (d) there was nothing in the revenue entries to show that defendants 1 to 8 were in possession as tenants under defendants 9 to 12, as alleged by them. The suit was brought on 28-2-1955. It has not been proved by the plaintiff that he was in possession of this land within 12 years of the institution of the suit. The revenue papers produced on the record only show that from 1932 to 1944 defendants 9 to 12 were in possession of the land and defendants 1 to 8 came into possession in kharif 1952. The revenue records do not show the plaintiff's possession. The lower appellate Court has also found that when defendants 9 to 12 gave up possession of this land, defendants 1 to 8 entered into possession. At another place, the learned Judge has remarked that defendants 9 to r2 gave up possession of the disputed land, in favour of defendants 1 to 8. Thus, it is clear that the plaintiff has not proved his possession of the land in dispute within 12 years of the institution of the suit. That being so, his suit must fail.

10. So far as the plaintiff's title to the land was concerned, it had been extinguished by virtue of the provisions of Section 28 of the Indian Limitation Act, because defendants 9 to 13 remained in adverse possession of the land in dispute for the statutory period of 12 years. It is true that defendants 9 to 12 gave up possession of the land in dispute in favour of defendants 1 to 8, but that would not, in any way, revive the title of the plaintiff. In this connection, I am supported by a Division Bench decision of the Rangoon High Court in Mg San Shin v. Mg. Maung, AIR 1926 Rang 95. If the plaintiff had proved that he entered into possessi on after defendants 9 to 13had left the land and was then dispossesed by defendants 1 to 3, who had admittedly no title to the land, then he could not bring a suit on the basis of his title, because after the expiry of the statutory period even a true owner's title is not revived by his re-entry (vide Mahmudunnissa v. Zahid Raza, AIR 1925 Oudh 20). He could, however, institute a suit for possession against them on the basis of his prior possession, because it is clear that the possession of even a trespasser, who had not been in enjoyment of the land for the statutory period, has to be maintained against all persons except the true owner (see in this connection, Kondapa Rajan Naidu v. Dwarakonda Suryanarayana, ILR 34 Mad 173, and Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222.

11. In view of what I have said above, this appeal is accepted, the decree of the lower appellate Court is set aside and that of the trial Court is restored. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.


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