Guman Mal Lodha, J.
1. This is a plaintiff's second appeal against the judgment & decree passed by the first appellate court dismissing the plaintiff's suit for possession with costs which was decreed by the trial court.
2. The plaintiff-appellant filed a suit for possession in respect of the disputed Surang and Chabutra measuring 14' x 5' x 2' x 5' shown in red colour in the site plan annexed with the plaint, situated at Govindgrah. According to him, he is the owner and in possession of the disputed Surang and Chabutra which is a part and parcel of his house, being used as a passage to his house. The plaintiff is residing at Alwar and, therefore, in his absence the denfendant No. 1 in the month of April, 1962 took illegal possession of the Chabutra and Surang and ultimately refused to vacate it on 9-9-65 inspite of verbal protest and notice delivered to him and on the contrary set up the title of defendant No. 2 regarding the disputed Chabutra and surang, in his reply and he wrongly showed himself to be the tenant of defendant No. 2 hence the suit for possession was filed.
3. The defendant No. 1 in his written statement has denied the title of plaintiff regarding the disupted Chabutra and surang and has stated that he is a tenant of defendant No. 2 in respect of the disputed property and has been paying rent to her. The valuation of the suit property is Rs. 1500/- and the suit is not within the prescribed period of limitation.
4. The defendant No. 2 in his written statement has stated that the disputed Surang and Chabutra have been in her possession and defendant No. 1 is her tenant for the last 23 years in respect of it. There is another way of going upwards to the house of the plaintiff as a passage as alleged by him. The value of the suit property is Rs. 1500/- and the suit is not within limitation.
5. During the pendency of the suit defendant No. 2 Mst. Anandi expired and therefore defendants No. 3 to 6 were added as her legal representatives vide order dated 14-2-1968. In their joint written statement the defendants No. 3 to 6 have arrested their title & possession regarding the disputed property & have claimed that defendant No. 1 is their tenant. What Smt. Anandi has stated in her written statement, has been reiterated by the defendants Nos. 3 to 6, in their joint written statement.
6. On the basis of the pleadings of the parties, the following issues were framed by the trial court;
(1) Whether the disputed Surang and Chabutra shown in red colour in the site plan Ex. 1 is owned and possessed by the plaintiff and has been in his possession within the last 12 years?
(2) Whether the defendant No. 1 Shri Kanahaya Lal illegally occupied the Surang and Chabutra in the month of April, 1962 ?
(3) Whether the plaintiff is entitled to get a decree for possession ?
7. After recording of the evidence of the parties and hearing of the parties, the plaintiffs suit for possession of the disputed Surang and Chabutra as shown in red colour in the site plan Ex. 1 and as described in para 1 of the plaintiff, situated at Govindgrah, was decreed with costs by the trial court vide its judgment and decree dated 29th April, 1968.
8. Against the judgment and decree passed by the trial court, the legal representative of Mst. Anandi Bai, the respondents Nos. 1 to 4 filed an appeal which came to be heard by the Civil Judge, Alwar. The learned Civil Judge allowed the appeal and set aside the decree passed by the trial court and dismissed the plaintiff's suit for possession.
9. Hence this second appeal.
10. Shri N.K. Maloo, the learned counsel for the appellant, has raised an important question of law regarding the interpretation of Article 65 of the Limitation Act, 1963, (36 of 1963), for brevity, the New Act.
11. In order of appreciate that, it may be mentioned that issue No. 1 as it was framed, contained the requirement of proof of possession by the plaintiff within last 12 years.
12. It is this part to the material proposition and requirement which is being contested by Shri Maloo. According to him, after coming into force of the amendment introduced in the New Act, Article 65, which has replaced earlier Article 144 of Limitation Act IX of 1908, for brevity, the Old Act, has given different dimension to the law of Limitation.
13. Article 65 of the New Act reads as under:
65. For possession of immovable Twelve When the possession property or any interest years of the defendanttherein based on title becomes adverse tothe plaintiff.Explanation.--For the purposes of the article:
(a) where the suit is by a remain derman, a reversioner (other than a landlord) or a devises, the possession of the defendant shall be deemed to become adverse only when the estate of the remainder man, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.
14. The principle of law convassed by Shri Maloo is that after new Article 65 of Limitation Act of 1963, it is not necessary for the plaintiff who comes on the basis of the title to prove that he was in possession of the property within last 12 years, in order to get a decree of possession against the defendant. All that is required to be proved is that he has got title of the property, and once it is proved then there is no requirement to prove that he was in possession, and that too, within 12 years of the filing of the suit.
15. Since in the present case, the suit has been dismissed by the first appellate court on the precise ground that the plaintiff has failed to prove his possession within 12 years, Shri Maloo argued that the decree of the first appellate court should be reversed, and that of the trial court should be restored.
16. Shri Dalip Singh, appearing for the respondant, submitted that the present one is a case where, the plaintiff never came in possession of the property after the auction sale in which it was purchased and the finding of the first appellate court is that the plaintiff never came in possession, at all, and that being so, the question of application of Article 65 of the New Act is immaterial, Alternatively, Shri Dalip Singh argued that, on the facts found to have been proved by the first appellate court, the present one was a case where, adverse possession was proved, Shri Singh also submitted that it has been pleaded, and for that, he referred to para 2 of the written statement. The plea of Shri Singh is that even if it is presumed that the adverse possession has not been proved, and once the finding of the appellate court is there on the facts holding that the plaintiff never came in possession; this court, in this second appeal, should uphold the finding of adverse possession.
17. Shri Singh, in support of his contention, relied upon the decision of the Patna High Court in Govind Yadav v. Deoki Devi : AIR1980Pat113 wherein it has been held that in second appeal, it is not only competent but, expedient in the interest of justice to entertain the plea raised by the plaintiff had acquired title to the suit land by adverse possession arises upon facts proved beyond controversy as found by the appellate court. The High Court took the view that the plea of title by adverse possession, in a suit based on the title more than 12 years need not be specifically pleaded as it is included in the title.
18. Prima facie, either way, the principle laid down in this case, supports the contention of Shri Singh to some extent, although that was a case where the plaintiff wanted second appellate court to decree the suit on the basis of this title proved by adverse possession.
19. In the case, plaint contained a clear avernment that the plaintiffs were continuously in possession for more than 12 years peaceably and in assertion of independent right and title this plea was taken to be a plea of adverse possession by implication. .
20. Shri Maloo, or the contrary, placed reliance upon the judgment of this court in Hasan Ali v. Hafiz Mushtak Ali S.B. Civil Second Appeal No. 163/84 decided on 15th March, 1985, wherein this court observed as under '.
In Basudeo Prasad Sinha v. Gendra Mahto and Anr. S.C. Unreported judgments (Vol. 1) 1969 Page 318 Supreme Court expressly debars the court from going into question of adverse possession in the absence of pleadings. In that case, para No. 6 reads as under:
'The learned Judges of the High Court, with respect, do not appear to have given proper consideration to the pleadings on the question of adverse possession. In the written statement, the plea relating to limitation was contained in para 2 which has already been reproduced. This pleading can hardly be regarded as a proper pleading for the purpose of raising a defence of the right of permanent tenancy having been acquired by adverse possessions. It was incumbent on the part of the defendants to have specifically and clearly stated all the relevant facts in the matter of setting up the claim that rights of permanent tenancy were being prescribed for a stated or specified period and that they had become tenants by having been in continuous and uninterrupted and hostile possession for the prescribed period.'
It would be thus seen that the plea of adverse possession should include averments of hostile uninterrupted continuous and open possession adverse to the plaintiff for the prescribed period and unless the above can be read from the written statement, no plea of adverse possession can be inferred. Merely because the defendant claims possession as owners from 1948 it cannot be treated as a plea of adverse possession. Similary, merely because a plea is raised that the suit is time barred it cannot be treated as plea of adverse possession. I am, therefore, convinced that no error of law has been committed by the lower court in not framing issues regarding adverse possession when there was no specific plea and the issue about limitation could not include the controversy of adverse possession,
21. Reliance was placed by this court on the judgment of this court in Sheikh Mohd. v. Anjuman Monis Fakhira 1971 WLN 396 and another judgment in S.M. Karim v. Mst. Bibi Sakina : 6SCR780 .
22. The principles which have been laid down in the above judgment of the Apex Court is that when adverse possession is to be pleaded, it must be the plea of adverse possession in an adequate manner pleading that it was open uninterrupted, peaceful continuous and hostile possession of the owners publicly. More over, as held in Smt. Karim v. Mst. Bibi (supra) a plea is required at the least to show when possession becomes adverse to that the starting point of limitation against the party can be found.
23. In S.M. Karim v. Mst. Bibi (supra) a plea was taken in the prayer clause that there was uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title. This plea was enough to raise such a plea. Their Lordships of the Apex Court in that case made the following observations which are very important:
Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.
24. In my opinion, normally there should be a plea of adverse possession on the basis of the requirement of law as emphasised, but I find that all that was pleaded by Mst. Anandi in written statement was that the property was remained in her possession for ever completely.
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25. In this view of the matter, it is not possible for this court to interpret the written statement to mean that there was a plea of adverse possession by the defendant on the basis of which, the evidence already produced in the case can be assessed for her proof.
26. No doubt, the Patna High Court in Govind Yadav v. Deoki Devi (supra), as cited by Shri Dalip Singh, has taken a liberal view in this matter and held that the plaintiff when he comes on the basis of the title based on long possession can be allowed to show that the title has been acquired by adverse possession but, there again, as is obvious from a reading of para 16, there was a clear averments in the plaint that the plaintiffs were in continuous possession for more than 12 years peaceably and as of right in the assertion of their independent title.
27. It must be noticed here that the Words and Phrases, 'peaceably and as of right in the assertion of their independent title', are significant, and they, in that given case, persuaded the High Court to infer the plea of adverse possession.
28. Obviously, as indicate above, there are no such words in the present case.
29. Now, it is well settled as held by the various High Courts that after coining into force of the Mew Limitation Act, new dimensions have been given by-introduction of Article 65. It is now settled and established law that in a suit for possession once the plaintiff proves title then it is not necessary for him to prove that he was in possession since last 12 years of the date of the filing of the suit. Contrary to it, it is for the defendant to prove after pleading that he had been in adverse possession for 12 years before filing of the suit. The latest decision reported in Naran Behra v. Mohan Jethi : AIR1985Ori40 deals with Articles 64 and 65 of the New Act. A division bench of Orissa High Court consisting of P.C. Misra and G.B. Patnaik, JJ., held, that when the suit is based on title even if dispossession also is alleged, the defendant had to prove that his. possession had become adverse to the plaintiff beyond twelve years of the suit, and the plaintiff need only prove his title and he need not show that he was in possession within twelve years of the suit. Their Lordship observed as. under:
Articles 64 and 65 of Limitation Act, 1963, which correspond to Articles 142 and 144 of the Limitation Act, 1908, have effected a material change in the law, with regard to suits for possession of immovable property under the present Act all suits for possession of immovable property have been brought under two categories; (a) suit based only on the right of previous possession and not on proprietary title; and (b) suit based on proprietary title. In case of suits coming under; (b) which are governed by Article 65 of the Limitation Act, time runs when the possession of the defendant becomes adverse to the plaintiff. In other words, in suits for possession based on title even if dispossession also is alleged, the defendant can succeed only if be proves that his possession had become adverse to the plaintiff beyond twelve years of the suit. The plaintiff need only prove his title and he need not show that he was in possession within twelve years of the suit.
30. Earlier judgment of Orissa High Court of another Division Bench in Baruna Giri v. Rajakishore Giri : AIR1983Ori107 , also deals with Articles 64 and 65 of the New Act, and the same principle was evolved. The following observations are very important:
In the case of a suit for possession based on title, the plaintiff has no longer to prove that he was in possession of the property for a period of twelves years. The instant suit is based on title and is governed by Article 65 of the Limitation Act, 1963. It was for the defendants vendees to establish that their possession has been adverse for the requisite period of twelve years. The plaintiff's having proved their title were entitled to the possession. However, they must refund the sum received from the defendants vendees which they received in pursuance of contract of sale
31. In Jayanti Devi v. Sri Chand Mal AIR 1984 Pat. 296, it was held that the suit for possession based on title filed after coming into force of the new Act of 1963, is to be governed by Article 65 of the New Act, and all that the plaintiff is required to prove his title. The important and significant departure from the earlier law of Limitation as provided by Articles 142 and 144 of the Old Limitation Act by enactment of Articles 64 and 65 of the New Act is that, whereas, earlier the plaintiff was required to prove not only the title but further his possession within 12 years of the institution of the suit and under the new Article 65 of the New Act, when the suit is based on the title, he is not required to prove that he was in possession within 12 years of the filing of this suit once he is able to prove his title.
32. New dimensions of this legislative change requires to be noticed by all the Courts of the land otherwise, the amendment introduced by the amendment Act would remain on paper of statute only, if the courts continue to harbour the old impression based on Article 142 and 144 of the Old Limitation Act. The departure is radical in nature and needs emphasis because now after 1963, all that the plaintiff is required to prove is his title under Article 65 of the New Act and once he succeeds, the defendant can unsuit only when he has adverse possession beyond twelve years of the suit.
33. The above view was also taken by the Apex Court in Basudeo Prasad Singh v. Genda Mahto (supra).
34. In view of the clear and categorical, unequivocal proposition of law enunciated by the various High Courts including this Court, and having protective umbrella of validity by similarity introduced by the Apex Court, I have got no hesitation in holding that the approach of the first appellate court was clearly in contravention, flagrant disregard and utter violation of the new Limitation Act of 1963, and particularly, its radical change in the provisions contained in Article 65 of the New Act.
35. I have some anxious moments while hearing the arguments as it was thought that the plea of adverse possession may be entertained either at this stage or by remanding the case. However, after a clear pronouncement by the Apex Court in the above decisions reference of which has been given in details supra, I feel that it would be an exercise of futility.
36. The result of the above discussion is that this appeal succeeds, and is, therefore, allowed; the judgment and decree passed by the First Appellate Court dated the 29th May, 1973, in Civil Appeal No. 117 of 1968 (50/69) are quashed and set aside; the judgment and decree dated the 29th April, 1968 passed by the Munsif Laxmangarh (Alwar) in Civil Suit No. 232 of 1965, are restored though on slightly different grounds as mentioned above, and the suit of the plaintiff is decreed.
37. Since the whole controversy rested on the absence of the appreciation of the radical change in the scheme of the Limitation Act from Articles 142 and 144 of the Old Limitation Act to Articles 64 and 65 of the New Limitation Act which was on account of the ignorance of the latest proposition of law, I would leave the parties to bear their own costs of this appeal.