1. This appeal by the fifth defendant is directed against the decision of Kailasam, J., in C. S. No. 52 of 1960, upholding the plaintiff's title to the suit lands and directing delivery of possession of the same by the defendants. The first respondent herein is the plaintiff in the suit, and her case was that her husband Nagappa Naicker had purchased the suit lands measuring about 9 grounds by a registered sale deed dated May 24, 1929 from one Manicka Naicker and his sons, that he was in possession and enjoyment of the same during his lifetime, that after his death on January 12, 1942 she as the executor appointed under his will dated May 14, 1941 and as a life-estate holder was in possession and enjoyment of the same till 1954 when the first defendant trespassed into the suit properties, demolished a fence existing on the land and occupied the same asserting title under a document of exchange dated 2-2-1954 executed by the fifth defendant, the Southern India Education Trust, Madras and that, therefore, she was constrained to file the suit to establish her title and for recovery of possession.
2. Defendants 1 to 4, who are respondents 2 to 5 herein, resisted the suit contending that they got 43 grounds and 1324 sq. ft. of land in exchange for their own land of 46 grounds in R. S. No. 3799 in Teynampet from the fifth defendant, that they were put in possession of the entire lands they got in exchange by the fifth defendant, that the lands got in exchange included the suit lands, and that the plaintiff had not been in possession or enjoyment of the suit lands at any time within 12 years prior to the date of the suit. They specifically denied the allegations of trespass and demolition of the fence.
3. The fifth defendant, the appellant herein, who was added at a later stage, contended that the plaintiff had no title to the suit lands, that it was not true that the plaintiff's husband Nagappa Naicker purchased the same on May 24, 1929, that they had always been in the possession and enjoyment of the defendants and their predecessors-in-title, and that the plaintiff had never been in possession of the same within 12 years prior to the suit. It also denied the alleged trespass and the demolition of the fence by the first defendant.
4. On a consideration of the evidence, both oral and documentary, Kailasam, J., had held that the plaintiff has established her title to the suit lands and that the documents of title on which the defendants base their claim will not take in the suit lands. The learned Judge has referred to the sale deed, Ex. P. 2 dated May 24, 1929 under which Nagappa Naicker purchased from Manicka Naicker and his sons an extent of 3/8th of a cawnie bearing old survey Nos. 187 and 188, corresponding to R. S. No. 3859, for Rs. 275/- and has found that it related to the suit lands. According to the learned Judge the earlier documents of title on which the defendants based their claim, Exhibits P. 3, P. 4 and P. 5 had shown that their predecessors-in-title had purchased only an extent of 35 grounds and 1989 sq. ft. in survey Nos. 3872, 3859/1, 3859/2 and 3859/3, and as such their claim for an extent of 43 grounds and 1324 sq. ft. under the exchange deed Ex. P. 8 dated 11-2-1954 could not be sustained. The learned Judge had also found that the plaintiff had been in possession of the suit lands within 12 years prior to the date of the filing of the suit, and that in fact there was trespass by defendants 1 to 4 in February, 1954. The finding given by Kailasam, J., both on the question of title and on the question of possession are being challenged in this appeal. Therefore the two points that arise for consideration in this appeal are: (1) whether the plaintiff had title to the suit lands and (2) whether she has been in possession of the same within 12 years of suit.
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5. Considering all these circumstances it is not possible to accept the contention put forward on behalf of the appellant that the defendants became entitled to the entirely of the land originally covered by R. S. No. 3859/3. We are, therefore, inclined to agree with the finding given by Kailasam, J., that the plaintiff has established her title to the lands claimed in the suit.
6. However, on the question whether the plaintiff has been in possession of the suit property within 12 years of suit, we are not in a position to agree with the view of the learned Judge.
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7. In our view the act of incidental user of the suit property pleaded by the plaintiff's tenants, P. Ws. 3 and 4 at 98 Mount Road is not sufficient to attribute possession to the plaintiff.
8. On a due consideration of the matter we take the view that the plaintiff has not established her possession of the suit property at any time within 12 years of suit.
9. The learned counsel for the first respondent-plaintiff, however, contends that it is not necessary for the plaintiff to establish her possession of the suit property at any time within 12 years of suit to get recovery of possession in the suit, that once she proves her title thereto she is entitled to recover possession of the property, so long as the defendants have not perfected title by adverse possession, and that in this case the defendants have not put forward a plea that they had perfected title by adverse possession, nor have they adduced any evidence in relation to their acquiring title by adverse possession. It is true that the defendants have not specifically set up adverse possession in their written statements nor have they adduced evidence on that question. It has, therefore, to be taken that the defendants have not shown to have perfected title by adverse possession. The further question, therefore, that has to be considered is whether it is necessary for the plaintiff to show possession within 12 years of suit in order to recover possession of the property from the defendants. The learned counsel for the first respondent-plaintiff submits that, whatever be the legal position under the Limitation Act, 1908, the new Act of 1963 has completely changed that legal position, and that even in respect of suit filed earlier to the present Act the plaintiff need to prove possession within 12 years of suit for recovery of possession, if he establishes title to the suit property. The learned counsel refers to the decision of Alagiriswami, J., in Konappa Mudaliar v. Munuswami, : AIR1970Mad328 in support of his plea. In that case the Courts below had found title in the plaintiff but had held that he was not in possession with 12 years of suit. It was contended before the learned Judge that the question whether the plaintiff who has title and who sues for possession of the property to which he is entitled should, in order to succeed in his suit, also show possession within 12 years of suit no longer arises, in view of the provisions of Articles 64 and 65 of the Limitation Act, 1963, hereinafter referred to as the new Act and that as the Supreme Court has in its decision in Nair Service Society v. K. C. Alexandar, : 3SCR163 held that the present Articles 64 and 65 are merely declaratory, the appeal has to be decided on the basis of Article 64 and 65 of the new Act rather than on the basis of Art. 142 of the Limitation Act, 1908 hereinafter called the old Act. The learned Judge dealing with that contention expressed the view that even in respect of suits filed before the new Act came into force the provisions of that Act have to be given effect to where fresh steps like appeal, etc., have to be taken, and not the provisions of the old Act, subject, of course, to the provisions of Section 30 of the new Act. According to the learned Judge the effect of Art. 142 of the old Act as interpreted by a Full Bench of this Court in Official Receiver v. Govindaraju AIR 1940 Mad 798 is that even where a person with a title files a suit for possession but fails to show possession within 12 years of suit, he has got to fail even though the person in possession might not have completed his title by adverse possession and it is this defect that has been cured by Arts. 64 and 64 of the new Act which have been interpreted by the Supreme Court in : 3SCR163 as declaratory and not remedial, and the effect therefore of the decision of the Supreme Court is that it should always be deemed to have been the law that when a person who has title sues for possession, he need not be in possession with 12 years of suit and that he is entitled to succeed unless the defendant is able to establish that he has prescribed title by adverse possession. This view of Alagiriswami, J. that even in respect of suits filed before the commencement of the new Act, Art. 142 of the old Act cannot be applied, has also been followed by Raghavan, J. in S. A. 1272 of 1967. Raghavan, J. on the facts of the case found that the plaintiff's vendor was in possession of the suit property within 12 years of suit but, however, referred to the above decision of Alagiriswami, J. and expressed the view, following that decision, that it is not incumbent upon the plaintiff to establish possession within 12 years of suit once he establishes title.
10. In : 3SCR163 their Lordships of the Supreme Court while considering the relative scope of Ss. 8 and 9 of the Specific Relief Act had observed:
'The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised that plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under S. 9 of the Specific Relief Act but the does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Art, 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 64 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law.'
Relying on the above observation that the law as laid down by Arts. 64 and 65 of new Act is only declaratory and not remedial, Alagiriswami J., has expressed that Arts. 64 and 65 should be deemed to have been the law even before the commencement of the new Act and that where when a person who has got title sues for possession is entitled to succeed even without showing possession within 12 years of suit, unless defendants are able to establish that they have perfected title by adverse possession, and that Art. 142 of the old Act cannot be applied after the new Act came into force, even in respect of suits filed earlier. With respect, we are not able to accept the view of Alagiriswami, J. The decision of the Supreme Court above referred to does not, in our view, touch this aspect, and it observations that Arts. 64 and 65 of the new Act are declaratory of the existing law cannot be construed so as to take away the effect and operation of Art. 142 of the old Act. In fact we find that their Lordships of the Supreme Court have accepted as correct the following dictum laid down in Perry v. Clissold, 1907 AC 73:
'It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the original owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation application to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.'
In our view the said decision of the Supreme Court does not support the view taken by Alagiriswami, J. that even in respect or suits filed before the new Act came into force it is not incumbent upon the plaintiff to prove possession within 12 years of suit if he establishes title to the property. Though reference has been made to S. 30 of the new Act by Alagiriswami, J., no reference has been made to S. 31 of the new Act which is as follows:
31. Nothing in this Act shall--
(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 expired before the commencement of this Act or
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at such commencement.
This provision makes it clear that the provisions of the new Act will have no effect in suit, appeal or application instituted, preferred or made before, and pending on the date of commencement of the new Act and that if a suit, appeal or application had been barred under the old Act the provisions of the new Act cannot be invoked. Before the commencement of the new Act, Art. 142 of the old Act was operative and a plaintiff to recover possession has to establish his possession within 12 years of suit even in a case where he establishes title. The provisions of the new Act cannot be construed as to take away the vested right of a defendant to raise a defence based on Art. 142 of the old Act. There is no express provision for such a purpose in the new Act.
11. The learned counsel for the first respondent contends that, the limitation begin only a rule of procedure and not a rule of substantive law, any change in the law of limitation should be deemed to be retrospective in the sense of being applicable even to proceedings initiated before the change, and as such Arts. 64 and 65 of the new Act have to be applied even to pending suits. We are not inclined to accept the above contention. It is true that no one has any vested right in any procedure and, therefore, any change in the procedural law has a retrospective effect and will apply even to pending cases. But such application cannot effect any substantive rights acquired by any of the parties to the proceedings before the change. Normally the rights of the parties are to be governed by the statute as it existed at the time when the suit was initiated unless there in anything to show the contrary in the amending statute, which came into force during the currency of the suit. But if the change is only in the mode of procedure, it has to be applied to pending actions as well, but such application is subject to the limitation that it should not affect any substantive rights acquired by or vested in any of the parties to the proceeding before the change in view of S. 6 of the General Clauses Act. This Court, of course, had held in Arayil Kali Amma v. Sankaran Nambudiripad, ILR (1911) Mad 292 that the question of limitation not being a rule of substantive law is not preserved by S. 6 of the General Clauses Act. But a recent judgment of the Supreme Court in N. G. Mitra v. State of Bihar, : 1970CriLJ1396 has laid down that though as a general rule alteration in the form of procedure are retrospective in character, the effect of the principle embodied in S. 6 of the General Clauses Act is that pending cases although instituted under the old Act are to be governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be reopened again for the purpose of applying the new procedure. The relevant observations of the Supreme Court are these:
'It is true that as a general rule alterations in the form of procedure are retrospective in character unless there is some good reason or other why they should not be...... But there is another equally important principle namely that a statute should not be construed as to create new disabilities or obligations or impose duties in respect of transactions which were complete at the time the amending law came into force.'
12. As regards the scope of S. 6 of the General Clauses Act the Supreme Court said:
'The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure.'
Here the suit was filed when old Act was in force and one of the defences taken by the defendants is that the plaintiffs claim for possession was barred by limitation under Art. 142 of that Act. The suit came to be disposed of on the basis that Article 142 applied to the suit. In such a case where the old procedure has been applied and the suit has been disposed of on that basis, it is not possible to say that the suit was not barred by limitation by the provisions of the new Act.
13. Alagiriswami, J. in : AIR1970Mad328 has opined that the decision of the Full Bench in AIR 1940 Mad 798 (FB) in holding that a plaintiff suing in ejectment is not entitled to succeed unless he shows in addition to title that he has been in possession of the suit property within 12 years of suit no longer applies, in view of the decision of the Supreme Court in : 3SCR163 . The said decision of the Full Bench is based on the earlier rulings of the Privy Council rendered in Mohima Chander Mozumdar v. Mohesh Chunder Neogi, ILR (1889) 16 Cal 473 (PC), Mohamad Amanulla Khan v. Badan Singh, (1890) ILR 17 Cal 137 (PC) and Dharani Kanta Lahiri v. Gabar Ali Khan, (1913) 25 Mad LJ 95 (PC) wherein the Privy Council had laid down the principle that a person seeking to recover possession of immovable property should not only prove that he had been dispossessed of the same within 12 years immediately preceding the suit, and that the onus is not upon the defendant to prove adverse possession for a period of 12 years. The view of the Full Bench was that even persons having title should show their possession at some point of time within 12 years of suit under Art. 142 of the old Act. Thus Art. 142 has been applied even to suits on title, where the plaintiff alleges prior possession and later dispossession by the defendant, and Art. 144 was treated only as a residuary Article. The question is whether the law laid down by the Full Bench and which was prevailing before the commencement of the new Act is incorrect in the context of the observation made by the Supreme Court in : 3SCR163 that Arts. 64 and 65 of the new Act are only declaratory of the existing law. In the case before the Supreme Court the plaintiff had filed a suit for possession and mesne profits in respect of certain Government poramboke lands, on the ground that he had been in possession of the same for about 70 years, and that the defendant had trespassed thereon on the basis of an alleged lease from the Government. It was contended by the defence that the plaintiff, a prior trespasser cannot maintain a suit against a latter trespasser who had the authority of the true owner either originally or subsequently, after the period of six months prescribed for establishing a possessory title under Section 9 of the Specific Relief Act. It was found on facts that the plaintiff was in possession of the lands from 1924, that he was disposed on October 16, 1939 and that the suit for possession had been filed on October 13, 1942. Hence the main controversy between the parties was whether the plaintiff could maintain a suit for possession without proof of title basing himself only on his prior possession and later dispossession by the defendant after the expiry of six months prescribed for suits under S. 9 of the Specific Relief Act. It was contended before the Supreme Court that Ss. 8 and 9 of the Specific Relief Act provided for two exclusive categories of suits, one based on title and another based on possession, that a possessory suit can only be filed within 6 months of dispossession as provided under S. 9 and that any suit filed for recovery of possession after six months can only be on title. In rejecting that contention the Supreme Court held that S. 8 does not provide for any specific category of suits, that it only refers to the procedure contemplated by the Civil Procedure Code, that a possessory suit can be maintained even after six months under Article 142 of the old Act, and that the plaintiff can maintain the suit based on his prior possession even though he had not filed a suit within 6 months of his dispossession under S. 9 of the Specific Relief Act. The Supreme Court expressed that the distinction between a suit on title and a possessory suit has been clearly brought out by Articles 64 and 65 of the new Act and that those Articles are merely declaratory. Their Lordships of the Supreme Court have not expressed the view that the law laid down by the Full Bench in AIR 1940 Mad 798 is no longer good and that Article 142 of the old Act cannot be applied to suits on title. In fact their Lordships had referred to the decision of the Privy Council in (1913) 25 MLJ 95 (PC) which had been followed by the Full Bench and they merely distinguished that case on another point without expressing any dissent from the view expressed by the Privy Council in that case that:
'It lay upon the plaintiffs to prove not only a title as against the defendants to the possession; but to prove that the plaintiffs had been dispossessed or had discontinued to be in possession of the lands within 12 years immediately preceding the commencement of the suit.
As already stated, the decision of the Full Bench is based on the principle laid down in (1913) 25 MLJ 95 (PC). Therefore the decision in : 3SCR163 should be taken to decide that Article 142 of the old Act applied to possessory suits as well and it cannot be construed as laying down the principle that Article 142 will apply only to possessory suits and Article 144 will apply only to suits on title. Article 144 in so many words says that it has to be applied when no other Article applies. There is nothing in the words of Article 142 to limit its application only to possessory suits. Hence Article 142 will have to be applied even to a suit for possession filed by a person having title alleging prior possession and dispossession, and such a suit will have to be filed within 12 years of dispossession. From what we have stated above it follows that in our opinion the view taken by Alagiriswami, J. in : AIR1970Mad328 , cannot be accepted as correct.
14. In view of our finding that the plaintiff has not shown to have been in possession at any time within 12 years of suit, her suit for recovery of possession has to fail though her title to the suit property is upheld. The result is the O. S. appeal is allowed, but in the circumstances, without costs.
15. Appeal allowed.