Skip to content


Mt. Nanchi Vs. Daulat Ram - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 121 of 1952
Judge
Reported inAIR1958Raj265
ActsLimitation Act, 1908 - Schedule - Articles 142 and 144; Evidence Act, 1872 - Sections 101 to 104
AppellantMt. Nanchi
RespondentDaulat Ram
Advocates: K.C. Sharma, Adv.
DispositionAppeal dismissed
Cases ReferredNawab Muhammad Amanulla Khan v. Badansingh
Excerpt:
.....and that the said article applied only where the suit was based simply on prior possession and dispossession of the plaintiff. 9. i have considered the arguments of sri sharma and have also carefully perused the plaint as well as the wordings of articles 142 and 144 of the indian limitation act. it is whether there has been a dispossession or discontinuance, which there clearly was. the evidence with respect to possession of both the parties was found unsatisfactory and the plaintiff was given a decree on the basis of his proprietary title, it was observed that from the pleadings of the case the appropriate provision would be article 144 and the suit will not fail until the defendants establish adverse possession for the statutory period either of the entire or limited interest. the..........suit was instituted on 2-4-1947 in the court of munsif, behror for possession of the plaintiff and dispossession of the defendant.5. the learned munsif framed the following issues:(1) whether the defendant took forcible possession of the property in dispute which was the property of the plaintiff and was in her possession on 5-8-1942 in the absence of the plaintiff and(2) whether the plaintiff is entitled to get back possession of that property?6. on this issue the finding of that court was that it was not proved that the plaintiff had been, in possession of the property in dispute within 12 years of the suit and that the possession of the defendant had been found over that property since the year 1924. on this finding the suit of the plaintiff was dismissed.7. the plaintiff went in.....
Judgment:

K.K. Sharma, J.

1. This is an appeal by the plaintiff against the appellate judgment and decree of the District Judge, Ahvar dated 5-12-1951.

2. The plaintiff came to the court with the allegation that she was the owner of a certain. Mohara situated in village Jhunaicha in the district of Alwar and that she was in possession of the said property upto 5-8-1942 when the defendant took-i'orcible possession of that property.

3. The defendant-respondent admitted that the property in suit had formerly belonged to the plaintiff's husband Mamraj, but it was put to auction by the State for the realisation of a fine against Mamraj in the year 1924, and was purchased by the defendant's father and that since then he had been in possession of that property,

4. The suit was instituted on 2-4-1947 in the court of Munsif, Behror for possession of the plaintiff and dispossession of the defendant.

5. The learned Munsif framed the following issues:

(1) Whether the defendant took forcible possession of the property in dispute which was the property of the plaintiff and was in her possession on 5-8-1942 in the absence of the plaintiff and

(2) Whether the plaintiff is entitled to get back possession of that property?

6. On this issue the finding of that court was that it was not proved that the plaintiff had been, in possession of the property in dispute within 12 years of the suit and that the possession of the defendant had been found over that property since the year 1924. On this finding the suit of the plaintiff was dismissed.

7. The plaintiff went in appeal to the court of the District Judge, Alwar, but the appeal was dismissed on the ground that Article 142 of the Indian Limitation Act applied to the facts of the present case and the plaintiff being unable to prove her possession within 12 years before the suit, the suit was barred by limitation. Against this appellate judgment and decree, the plaintiff has come in second appeal to this Court.

8. I have heard Sri R. C. Sharma on behalf of the appellant. The respondent has not appeared in spite of notice and the appeal therefore proceeded ex parte. It was argued by Mr. Sharma that Article 142 does not apply to a case where the plaintiff bases his suit on the ground of proprietary title as well as possession and that the said Article applied only where the suit was based simply on prior possession and dispossession of the plaintiff. On this the rulings in the cases of Daulu Mal v. Rawal Baksh, AIR 1930 Lah 608 (A) and M. A. Kauf v. Bodhisingh, AIR 1950 Pat 484 (B), have been cited.

9. I have considered the arguments of Sri Sharma and have also carefully perused the plaint as well as the wordings of Articles 142 and 144 of the Indian Limitation Act. Article 142 applies to a case where the plaintiff sues for a possession of immove-able property on the ground that while in possession of that property, he had been dispossessed or had discontinued the possession. The limitation prescribed is 12 years from the date of dispossession or discontinuance. Article 144 is a residuary Article, which applies to a suit for possession of immoveable property or any interest therein not otherwise provided for in the Limitation Act.

In the present suit, the plaintiff has prayed for possession on dispossession of the defendant. Although she has alleged that she was the proprietor of the property in suit, she has also said that she was an possession of the property when she was forcibly dispossessed by the defendant. The property in dispute is a Nohra, which, it has been conceded, is capable of physical possession. I am therefore of opinion that the suit comes within Article 142 of the Limitation Act even though one of the grounds is that the plaintiff is proprietor of the property. Learned lower appellate court has relied on the judgment of their Lordships of the Privy Council in the case of Nawab Muhammal Amanulla Khan v. Badansingh, 16 Ind App 148 (C). In that case also the plaintiff had come to Court on the allegation that he was the proprietor of the property in dispute and also on the allegation that while in possession he had been dispossessed by the defendant. Their Lordships applied Article 142 of Act XV of 1877, which is in the same words as Article 142 of the present Limitation Act. Their Lordships observed that

'the Act applicable to the case is Act XV of 1877 and the Article is No. 142, which says that for possession of immoveable property when the plaintiff, while in possession of the property, had been dispossessed, or has discontinued the possession, the time from which the period allowed for bringing the suit begins to run is the date of the dispossession or discontinuance.'

Their Lordships further observed at p. 151 as follows --

'Whether any proprietary right may have existed is not the question. It is whether there has been a dispossession or discontinuance, which there clearly was. No doubt the proprietary right would continue to exist until by the operation of the law of limitation it had been extinguished; but upon the question whether the law of limitation applies, it appears to be clear that it comes within the terms of the Article 142, and if there has been any doubt in the minds of the Courts in the Punjab as to what was the effect of the law of limitation in cases of this description, it seems to have arisen from the introduction of some opinion that there must be what is called adverse possession. It is unnecessary to enter upon the inquiry. Article 144 as to adverse possession only applies where there is no other article which specially provides for the case.'

10. A Full Bench of the Allahabad High Court in the case of Bindhyachal Chand v. Ram Gharib Chand, AIR 1934 All 993 (D), held that 'Article 142 is not restricted to suits based on possessory title only'. In that case the plaintiff, who was a co-sharer with some of the defendants, who transferred a part of the property to third parties, admitted in the plaint that he was dispossessed by the transferees some time prior to the institution of the suit. Article 142 was applied and not Article 144, which was held to be applicable only to those cases for possession which do not fall under any other article of the Limitation Act.

11. Learned counsel has referred to the ruling of the Lahore High Court in the case of Daulumal v. Rawal Baksh (A), referred to above. It appears from the judgment that in that case the plaintiff had not definitely relied on dispossession or discontinuance of possession on any specified date. The facts of that case therefore are different from the facts of the present case. There is a Full Bench ruling of the Lahore High Court itself in the case of Beharilal v. Naraindass, AIR 1935 Lah 475 (E), in which it was held that

'where in a suit for possession, plaintiff pleads possession and dispossession the suit is governed by Article 142. It cannot be said that in all cases Article 144 is to govern the case once the plaintiff has proved a title to the property.'

Learned counsel has referred to a judgment of the Patna High Court, which has also been referred to above. From the judgment of that case it appears that the defendants had filed a case u/s 145 Cr. P. C. for declaration of their possession of the property in suit. The plaintiff filed a suit for a declaration that the land was bakasht and for recovery of possession by evicting the defendants.

The evidence with respect to possession of both the parties was found unsatisfactory and the plaintiff was given a decree on the basis of his proprietary title, It was observed that from the pleadings of the case the appropriate provision would be Article 144 and the suit will not fail until the defendants establish adverse possession for the statutory period either of the entire or limited interest.

12. With respects I may say that I do not think the view taken by the learned Judges in deciding that case was the correct view as the phraseology of Articles 142 and 144 of the Limitation Act was not taken into consideration. When the plaintiff comes on the allegation that he was in possession of the property within 12 years before the suit and that the defendant dispossessed him within that period, it is for the plaintiff to prove by evidence possession and dispossession within the time prescribed by law.

If Article 144 were applicable, it might be said that once the plaintiff has proved his title, it is for the defendant to prove adverse possession. But as observed by their Lordships of the Privy Council in the case of Nawab Muhammad Amanulla Khan v. Badansingh (C), cited above and also by the Full Bench of the Allahabad High Court referred to above, Article 144 is a residuary article and does not apply where the case falls under any of the other articles of the Limitation Act. Article 142 applies to a case when the plaintiff comes on the ground that he was in possession of the property within twelve years and the defendant dispossessed him during that period. The case is clearly governed by Article 142 and Article 144 consequently has no application.

13. I have no reason to differ from the findingof the lower courts. The appeal has no force andit is dismissed. As the respondent has not appeared, I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //