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Lalit Mohan Bhowmick and ors. Vs. Smt. Kshirodeswari Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 756 of 1973
Judge
Reported inAIR1981Cal43
ActsLimitation Act, 1908 - Schedule - Articles 142 and 144
AppellantLalit Mohan Bhowmick and ors.
RespondentSmt. Kshirodeswari Das and anr.
Appellant AdvocateAtul Krishna Das and ;Santi Ranjan Goswami, Advs.
Respondent AdvocateHrishikesh Ganguly, Adv.
DispositionAppeal dismissed
Cases ReferredC) and Ismail Ariff v. Md. Ghous
Excerpt:
- .....suit as the plaintiffs failed to prove that the suit was filed within 12 years from the date of dispossession by the defendants.6. from the decision which the learned munsif took after the remand there was an appeal and the learned subordinate judge allowed the appeal as against the contesting defendants. there was a compromise petition filed on behalf of the plaintiffs and two of the defendants, namely, defendants nos. 1 and 2. this compromise petition was allowed as the same was found to be lawful. the ultimate result was that the plaintiffs' title to the suit property was declared and they were found entitled to recover possession after evicting the defendants who were given three months to vacate and take away their structures and on their failing to do so the plaintiffs would be.....
Judgment:

D.C. Chakravorti, J.

1. This appeal is from the judgment and decree passed by the learned Subordinate Judge, 7th Court at Alipore, reversing those of the learned Munsiff passed in a suit brought by the present respondents as plaintiffs for declaration of title and recovery of khas possession on the following allegations.

2. The suit was originally brought by one Smt. Imaman Bibi who later was substituted by the present plaintiffs as the latter were transferees from the said Smt. Imaman Bibi of the said suit property. In May, 1950 the said Imaman Bibi left the suit property which belonged to her because of communal troubles. The defendants taking advantage of the fact that the suit property was lying vacant committed trespass and pulled down structures standing thereon and raised some new structures. The said original plaintiff Imaman Bibi tried to recover property after peace was restored but she failed to get back the property from the defendants in spite of the assurance given by the defendants that they would vacate the suit property after they succeeded in getting some accommodation elsewhere.

3. The defendants denied that Imaman Bibi was the owner of the suit property or that she left the same in May, 1950. The defence case is that the defendants acquired title by adverse possession of the suit property for more than 12 years preceding the date of the institution of the suit. The defendants also denied that on being requested by the plaintiffs to vacate the suit property they assured that they would do so. Originally the suit was dismissed by the learned Munsif but on an appeal being preferred the Court Of Appeal below sent the case back on remand in the learned Munsiff for retrial. The appeal court found that the elements of adverse possession were not at all discussed by the learned Munsiff and that the materials on record were rather scanty. It was also observed by the Court of Appeal below that under the law Imaman Bibi was to satisfy that she was in possession of the suit propertywithin a period of 12 years prior to the institution of the suit, otherwise, she could not recover possession of the suit property from the defendants. The learned Munsiff was directed to give the parties an opportunity of adducing such evidence as they would like to adduce for proving their respective cases.

4. At the retrial the plaintiffs examined one more witness, namely, P. W. 3 Bahadur Prasad Shaw but the defendants did not examine any further witness. On behalf of the plaintiffs certain documents marked as Exhibit 5 series were proved.

5. According to the learned Munsif who heard the suit after the aforesaid remand, the settled law is that whenever the plea of limitation is raised it is for the plaintiff to show prima facie that the cause of action upon which he is suing is not barred by limitation. Further, according to him, the suit is governed by Article 142 of the Indian Limitation Act, 1908 (hereinafter referred to as the old Act). The finding of the learned Munsif is that the plaintiffs failed to prove that their vendor Imaman Bibi was in possession up to April, 1950 and left the suit property in May, 1950. The learned Munsiff further found that at least some of the defendants were in possession of the suit property since March, 1950 and Imaman Bibi was not in possession since then. The suit was instituted on April 23, 1962. On the basis of the aforesaid finding the learned Munsif dismissed the plaintiffs' suit as the plaintiffs failed to prove that the suit was filed within 12 years from the date of dispossession by the defendants.

6. From the decision which the learned Munsif took after the remand there was an appeal and the learned Subordinate Judge allowed the appeal as against the contesting defendants. There was a compromise petition filed on behalf of the plaintiffs and two of the defendants, namely, Defendants Nos. 1 and 2. This compromise petition was allowed as the same was found to be lawful. The ultimate result was that the plaintiffs' title to the suit property was declared and they were found entitled to recover possession after evicting the defendants who were given three months to vacate and take away their structures and on their failing to do so the plaintiffs would be entitled to recover possession by way of executing the decree. A decree for a sum of Rs. 10/- by way of damages was also passed in favour of the plaintiffs.

7. Only one question was raised by the parties before the Court of Appeal below when the appeal from the judgment and decree passed by the learned. Munsiff after remand was heard. Before me, in this appeal also the learned lawyers representing both the parties agreed that for a proper determination of the present appeal the only question to be determined is whether Article 142 or Article 144 of the old Act would apply to the present case. Be it noted that Article 142 and Article 144 of the old Act correspond respectively to Article 64 and Article 65 of the Limitation Act, 1963 (hereinafter referred to as the new Act).

8. The learned lawyer appearing for the appellants contended that as there was indication of dispossession of the original plaintiff by the defendants, the present suit ought to be governed by Article 142 and not by Article 144 of the old Act while the contention of the learned lawyer for the respondents was that it was Article 144 and not Article 142 which would apply, for, the present suit was one brought by the plaintiffs/respondents on the basis of their title to the suit property. Thus, according to the learned lawyer for the appellants when a suit is brought on the allegation that the plaintiff was either dispossessed or discontinued to be in possession, the suit would be governed by Article 142 no matter whether the plaintiff claimed title to the suit property at the same time. To put it a little elaborately the argument advanced on the side of the respondents is that Article 142 applied only in cases where a suit is brought on the basis of allegations that there was dispossession or discontinuance and when no title was claimed by the plaintiff. According to the respondents when title is claimed by the plaintiff to the suit property the proper Article to apply is Article 144 no matter whether there was allegation of dispossession or discontinuance. On behalf of the appellants reliance was placed on Official Receiver of East Godavari at Rajamundry v. Chava Govindaraju AIR 1940 Mad 798 (FB); M. Aziz Uddin v. Haji Maqbul Hussain AIR 1939 All 257 and Bindhyachal Chand v. Ram Gharib ILR 57 All 278: (AIR 1934 All 993) (FB). In the first of the cases referred to above which was decided by a Full Bench of the Madras High Court it is held that it cannot be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves ad-verse possession for 12 years. It is held on the other hand that the plaintiff is not entitled to succeed unless he shows, in addition to title, that he has been in possession of the property within twelve years of the suit. In so holding their Lordships relied upon some Privy Council decisions. Their Lordships however point out that it may be a hardship that a person who proves a title to property should lose it to a trespasser unless he can also show that he has been in possession within 12 years of the institution of the suit. But their Lordships had to decide in the manner they did as according to their Lordships that was what the old Act did lay down. In M. Aziz Uddin's case (supra) it is held that where in a suit for possession of immoveable property the plaintiff admits defendant's possession but alleges that he was dispossessed within 12 years of the suit by the defendant and the defendant contends that he has been in possession for more than 12 years, the plaintiff cannot be allowed to say that if he has failed to prove his possession by evidence, his possession must be presumed as the title is with him, because in spite of his title the other parties are found to be in possession. In this case, it is further pointed out that the presumption that possession follows title is rebutted by the fact that the defendant is found in possession. In the case of Bindhyachal Chand (supra) it is held that there is nothing in Article 142 which would confine its applicability to suits based on possessory title only and to make it inapplicable where the suit is based on proprietary title or the plaintiff's proprietary title is established. In this case the decision in Kanhaiya Lal v. Girwar ILR 51 All 1042: (AIR 1929 All 753) was disapproved. Kanhaiya Lal's case was an authority for the view that Article 142 was inapplicable to a suit brought on the basis of title. While disapproving the decision in Kanhaiya Lal's case as aforesaid the Court deciding Bindhyachal Chand's case relied on decisions in Mohima, Chunder Mozoomdar v. Mohesh Chunder Neoghi (1888) ILR 16 Cal 473 and Mahammud Amanulla Khan v. Badan Singh (1889) ILR 17 Cal 137, in both of which cases the suits were brought on the basis of title by plaintiffs who were not in possession, and their Lordships applied Article 142 and dismissed the claim on the ground that the plaintiffs had failed to establish their possession within 12 years. The essential difference, according to the decision inBindhyachal Chand's case (supra), between Article 142 & 144 is that when a person is suing for possession on the basis of dispossession, the burden lies on him to show that the date of his dispossession or discontinuance in possession, which gave him the cause of action for the suit, was within 12 years of the suit; while if the suit is not for possession based on the ground of dispossession, but is a suit for possession of immoveable property not specially provided for in any other Article by the Act, then on proof of title the plaintiff's suit cannot be dismissed until the defendant further establishes his adverse possession for more than 12 years.

9. The discussions aforesaid would show that there were two views possible regarding the correct application of Article 142 of the old Act. According to one view no matter whether the plaintiff has or has not any title to the suit property when he brings a suit for recovery of possession of immoveable property on the allegation that he was dispossessed by the defendant, Article 142 will govern the suit and the plaintiff will fail unless he can prove that he was dispossessed within a period of 12 years just preceding the date of institution of the suit. The other view is that Article 142 will apply only in cases where there was allegation of dispossession or discontinuance and not in cases where the plaintiff bases his claim on the proprietary title and not on possessory title alone.

10. The provisions of the Articles of the new Act, namely, Article 64 and Article 65, which substantially correspond to Article 142 and Article 144 respectively of the old Act are quoted hereunder:

'64. For possession of immoveable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.

65. For possession of immoveable property or any interest therein based on title.

Explanation: ...... ...... ...... ...... ..'

11. From a perusal of the provisions of Article 64 of the new Act it will appear that the legislature this time in more clear terms lays it down that when a suit is brought for possession of immoveable property based on previous possession and not on title the plaintiff for succeeding in such a suit is to prove that he was dispossessed within a period of 12 years just preceding the date of hisdispossession. The provision leaves no room for doubt that when on the ground Of dispossession the plaintiff brings a suit for recovery of possession the onus is on him to prove that the suit was brought within 12 years from his dispossession but that is so only in cases where the plaintiff does not claim title. Accordingly when the plaintiff bases his suit on title and alleges dispossession by the defendant Article 64 of new Act will not apply and the suit could attract the operation of the provisions of Article 65 of the new Act which is a residuary Article like Article 144 of the old Act. If Article 65 of the new Act applies the plaintiff's suit would be decreed on proof of title unless the defendant succeeds in proving that he dispossessed the plaintiff more than 12 years before the institution of the suit. This is also the view taken in Hanjabam Bapumacha Sharma v. Hanjabam Gokulchand Sharma AIR 1975 Gau 47 on which the learned lawyer for the respondents placed reliance. But the decision in Hanjabam Bapumacha (supra) will not be of much assistance to the respondents until it be shown that according to the settled law prevailing at the date of the institution of the present suit Article 142 is found applicable only to cases where suit is based on possessory title and not to cases based on proprietary title as well. An answer to this question, namely, what was the settled law at the date of the institution of the present suit regarding the scope and applicability of Article 142 of the old Act is to my mind, furnished by the decision in Nair Service Society Ltd. v. K. C. Alexander : [1968]3SCR163 on which the learned lawyer for the respondents greatly relied in support of his contention.

12. From a study of the decision rendered in Nair Service Society Ltd. (supra), it will be found that the Supreme Court by necessary implication overruled those cases which took the view that Article 142 of the old Act applied not only to cases based on possossary title but also to cases based on proprietary title when plaintiff alleges dispossession from the suit property by the defendant. In cases where a person having no title to an immoveable property was in possession of such property and was dispossessed by another the former may bring a suit under the provisions of the Specific Relief Act for the purpose of recovering such property and such a person would succeed provided he can show that the suit was brought within 5 months fromthe date of dispossession. Some Courts were of the view that a suit based on possessory title can be brought under the provisions of the Specific Relief Act within 6 months from the date of dispossession and that no such suit based on possessory title alone can be brought at a time after the expiry of 6 months from the date of dispossession. This view was rightly dissented from in the decision in Nair Service Society Ltd's case (supra). In that case the Court relied upon the following observations made in Mustafa Sahib v. Santha Pillai (1900) ILR 23 Mad 179:

'That a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he has held before the ouster even though that possession was without any title.'

This rule, it was pointed out in Nair Service Society Lid's case (supra), was firmly established. The decisions in Asher v. Whitlock (1865) 1 QB 1, Mt Sundar v. Mt. Parbali (1888-89) 16 Ind App 186 (PC) and Ismail Ariff v. Md. Ghous (1893) 20 Ind App 99 (PC) were referred to as authorities on the point. Thus, a person having no title but only possession can bring a suit for recovery of possession within 6 months from dispossession and in such a suit the plaintiff would succeed if the said suit were brought within six months even though the defendant may have a better title to the property in question. This is so because of the special provisions of the Specific Relief Act. But even after the expiry of 6 months from the date of his dispossession the plaintiff may bring a suit for recovery of immoveable property against the persons dispossessing him and he will succeed if he can prove that the suit was instituted within 12 years from the date of dispossession, for a person in possession of immoveable property enjoying the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. So in such a suit brought after 6 mouths from the date of dispossession the plaintiff will fail if the defendant proves his title to the suit property. But, as already pointed nut in a suit brought within 6 months from dispossession even the proof of defendant's title would not preclude the plaintiff from recovering possession. Thus, the view taken in some earlier case? that after the expiry of the period of 6 months from the date of dispossession the plaintiff cannot bring a suit for recovery of possession solely onthe allegation that he was dispossessed by the defendant is not correct. This is also the view taken in Nair Service Society's case (supra). There can be no doubt that when after the expiry of six months from the date of dispossession or discontinuance in possession a suit is brought solely on the basis of prior possession and not on title the plaintiff to succeed in such a suit has to prove that the suit was brought within 12 years from dispossession. This is a clear case where Article 142 of the old Act applies.

13. The question now before us is whether the plaintiff has to prove that the suit was brought within 12 years from the date of dispossession even in cases where he bases his claim on title. Article 64 of the new Act has application to the cases where the plaintiff while in possession of the property was dispossessed and he brings a suit for recovery of possession of immoveable property based on previous possession but not on title. Accordingly, Article 64 of the new Act can have no application to a case where the plaintiff while in possession was dispossessed by the defendant and he brings a suit for recovery of possession of immoveable property not only on the strength of his previous possession but also on the basis of his title. Such cases are governed by the provisions of the residuary Article, namely, Article 65 of the new Act. When a person brings a suit for recovery of possession of immoveable property basing his claim on title there can be no doubt that Article 142 has no application. In such cases if besides claiming title to the suit property the plaintiff further alleges that he was dispossessed by the defendant it would not be proper to hold that Article 142 of the old Act will apply and that the plaintiff would be required to prove his possession within 12 years just preceding the date of the institution of the suit. In such cases, to my mind, when plaintiff succeeds in proving his title it is for the defendant to show that the suit was brought beyond 12 years from the date of dispossession, for. Article 144 of the old Act ought to apply. This ought to be the correct view even though in Article 142 of the old Act the words 'not on title' appearing in Article 64 of the new Act do not occur. The decision in Nair Service Society's case : [1968]3SCR163 (supra) does not in clear terms lay down that Article 142 of the old Act does not apply to cases where the plaintiff sues on the allegation that he was dispossessedby the defendant but at the same time bases his claim on title. But that decision in substance supports the view that when the plaintiff sues not on the basis of possessory title alone but also on the basis of proprietary title Article 142 of the old Act will not apply. Mention in this regard may be made of the following words appearing in paragraph 14 of the decision in Nair Service Society's case reported in : [1968]3SCR163 :

'Article 64 (of the new Act) enables a suit within 12 years from dispossession, for possession of immoveable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immoveable property or any interest therein based on title. The amendment is not remedial but declaratory of the law'.

14. These words obviously convey the idea that the amendment sought to be effected by the new Act in the law as it was contained in the old Act was not remedial but declaratory. A new law may be said to be declaratory of a particular old law when the latter became disputable and Parliament or the legislature may think it proper to make a fresh and more clear declaration of the same law with a view to avoiding doubts and difficulties which conflicting decisions might have given rise to. When it is said that a particular law is remedial the idea conveyed is that such law brings about a change in the existing law either by enlarging or abridging that existing law with the object of removing some defect. In other words, when the law is a declaratory one there is no change brought about in the old Act but the new law makes a clear declaration of what the old law was on the subject in question. In Article 64 of the new Act there is a declaration afresh of what the old law as contained in Article 142 was. In the present case, both the Courts below concurrently found that no case of adverse possession was proved by the defendants. If in view of the law stated above Article 142 has no application and the proper Article to apply is Article 144, the failure on the part of the defendants to prove that the suit was brought beyond 12 years from the date of dispossession will entitle the plaintiffs to a decree when the plaintiffs succeed in proving their title. That the plaintiffs have title to the suit property was not only not challenged by the defendants before the trial Court orthe Court of Appeal below but was duly established by the plaintiffs. That is a question concluded by findings of fact and was not therefore raised before me.

15. The only question of substance pressed before me in this appeal has already been discussed at length.

16. The Court of Appeal below besides holding that the plaintiffs succeeded in proving their title to the suit property found that the defendants failed to prove acquisition by them of title to the same by adverse possession for the requisite period. I find no reason to differ.

17. In the circumstances aforesaid the appeal is dismissed with costs and the impugned judgment and decree are affirmed.


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