Raj Rani & ANR Vs. Kailash Chand
& ANR [1977] INSC 57 (17 February 1977)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) KAILASAM, P.S.
CITATION: 1977 AIR 1123 1977 SCR (3) 18 1977
SCC (3) 468
ACT:
Burden of Proof under Art. 142 of the
Limitation Act, 1908--A plaintiff admitting dispossession in suits based on
title, had to prove that he was in actual or constructive possession within
twelve years.
HEADNOTE:
The suit property of one Kalyan Chand in the
joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and
Sheo Shankar Sangamlal and Kripa Shankar (1/9+1/9+1/9 grandsons) was mortgaged
by Sheo Shanker, Sangamlal and Bansidhar acting on their own behalf and
allegedly on behalf of Kripa Shankar (who was a minor then).
Shital Prasad was not a party to the
mortgage. When the whole house was sold in Court auction on 3-10-1937, in
realisation of the mortgage money decreed, one Bhagwandas father of Kailash
Chand (Respondent No. 1) purchased the said house and took symbolical possession
on 12.9.1938.
'The residential portion of the house was in
occupation of Kripa Shankar (Appellant's husband) and Devika Rani w/o Shital
Prasad who established her right to 1/3 share by a decree obtained on
22-1-1941. Another suit filed by Bhagwandas for a declaration and possession
over 2/3 share for ejecting Kripa Shankar was decreed on 27-8-1945, and, again
symbolical possession was obtained on 21-11-46 under O.21 r.96 C.P.C. Kripa
Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali
Charan (son). Respondent No. 1 son of the auction purchaser Bhagwan Das filed a
suit No. 475/1959 on or about 10-8-1959 for partition and possession over 2/3
share of the portion in addition 'to certain claims of rents illegally
collected and the amount of tax unpaid by the appellants. The plaint
allegations were: (i) The auction-purchaser has been in possession over 2/3
part of the house with Devika Rani who had 1/3 share in the house; (ii) The
defendants had no concern with 2/3 share in the said 'house themselves or
through any other person were not in possession or in occupation of any part of
the above said house at any time as owners; (iii) The plaintiff was being
obstructed in looking after the house and realising rents and that the
defendant had misled some tenants and realised the rents due to him. The
appellant defendants took the plea (i) the mortgage was not valid as the amount
was not borrowed for legal necessity; (ii) Even if the house "had been
sold in execution of the mortgage, they have been openly denying the rights of
the plaintiff and had been in adverse possession and occupation of the property
for more than 12 years so that, even if the plaintiff or his predecessors had
any right, it had been extinguished by the operation of law limitation. The
Trial Court decreed the suit and the first appellate court confirmed it. The
second appeal filed in the High Court was also dismissed.
Allowing the appeal by special leave, the
Court, HELD:
(1) The High Court in a second appeal and the
Subordinate courts failed to determine the crucial question of actual or even
constructive possession of the plaintiff within twelve years and give a finding
to that effect. [24E] (2) The plaintiff had to Drove that he was in actual or
constructive possession within twelve years. It would be enough if he
establishes that he was in constructive possession within twelve years by
receipts of rent or otherwise.
[25F] (3) A decision on the question whether
Art. 142 Limitation Act applies to a case, really depends upon an interpretation
of the pleadings. In cases governed by the former Limitation Act, at any rate,
a plaintiff admitting dispossession in suits based on title, had to Drove that
he was in actual or constructive possession within twelve years.
[25C-E] 19 (4) The allegations in the plaint
amount to an allegation that by asserting their ownership and inducing the
tenants not to pay rents to the plaintiffs, the defendants had dispossessed the
plaintiff. In such a case, even if a defendant in actual possession could be
deemed to be initially a co-sharer, the plaintiff would be really asserting
that the co-sharer had dispossessed or ousted him. Hence an ouster having been
admitted in the plaint the burden would lie upon the plaintiff of proving his
case that the ouster had taken place within twelve years as Art. 142 of the old
Limitation Act applied to such a case. In the instant case, even if the
symbolic delivery of possession to a co-sharer could be said to have
interrupted any adverse possession, that interruption took place beyond twelve
years [23B-C] Bindhyachal. Chand & Ors. v. Ram Gharib Chand & Ors. AIR
[1934] All. 993. referred to.
Manikyala Rao v. Narasimhaswami AIR 1966 SC
470, distinguished.
Appeal allowed and case remanded to first
Appellate court to determine whether plaintiff was in possession within the
period of limitation.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1984 of 1968.
(Appeal by Special Leave from Judgment and
Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No. 3224 of
1963 ) S.C. Manchanda, M.L. Chitravanshi and M.V. Goswami, for the appellants.
J.P. Goyal, V.C. Prashar and Shreepal Singh,
for respondents.
The Judgment of the Court was delivered by
BEG, C. J. This is the defendant's appeal by special leave against the judgment
and decree of the Allahabad High Court decreeing the suit of the plaintiff
respondent for partition and separate possession of 2/3 share of House No.
397 in Katra, Allahabad. The plaintiff
claimed to be the sole heir of the auction purchaser of the house in October,
1937, at a Court sale in execution of a mortgage decree. The house had been
mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand,
the common ancestor and original owner, and Sheo Shankar and Sangam Lal
representing the line of another son of Kalyan Chand.
Kripa Shanker, now represented by the two
appellants, his widow and son, was said to be a minor, and although, his
brothers acted on his behalf, the defendants alleged that the loan and the
mortgage were not binding upon him for want of legal necessity. Shital Prasad,
a son of Kalyan Chand, was not a party to the mortgage deed. Hence, Sital
Prasad's share could not be said to have been sold. On 12th September, 1938,
symbolical possession was taken by the auction purchaser, and, again in 1946,
in proceeding for execution of a decree. But, the house continued to be in the
occupation of Kripa Shanker, the husband of the appellant Raj Rani and the
father of the appellant Kali Charan. Devika Rani, widow of Shital prasad, who
had filed a suit in 1937 for the declaration of her rights to 1/3 of the house,
after her objections under Order XXI, Rule 100 of the Code of Civil Procedure
had been dismissed, and obtained a decree from the appellate Court on 22nd 20
January, 1941, with the result that Shital Prasad's 1/3 share went out, had not
been impleaded in the suit now before us. In 1945, the respondent-auction
purchaser (now represented by son, Respondent No. 1 ) had filed a suit against
Kripa Shanker and another for a declaration of his rights in respect of 2/3
share in another house and the ejectment of Kripa Shanker and Prayag Das from
that house.
Although that suit was in respect of another
house, the defendants alleged that, in that suit, the auction purchaser had
said that the house in dispute in the case now before us was also in possession
of Kripa Shanker as a trespasser.
Kripaa Shanker died in 1953 leaving the
appellants in possession as his heirs.
The suit now before us was filed on 10th
August, 1959.
It was alleged there that, although the
auction purchaser had obtained possession of the whole house, yet, Smt.
Devika Rani, the widow of Shital Prasad
having continued in possession over 1/3 share, her claim to that portion had
been accepted so that it was no longer in dispute. But, it was alleged that the
auction purchaser has been in possession over 2/3 part of the house together
with Devika Rani who had 1/3 share in the house. It was also alleged that,
after the death of Devika Rani, one Sankata Prasad, defendant No. 3, had
started giving himself out as the owner of 1/3 share, on the basis of a
giftdeed of 1953' in his favour, and that defendant No. 1, Raj Rani, had been
giving out that Sankata Prasad had executed a sale-deed in favour of Kripa
Shanker, defendant No. 2. In para 8 of the plant, however, it is alleged:
"The defendants had no concern with the 2/3 share in the said house
themselves or through any other person nor were they ever in possession or in occupation
of any part of above owners". It is also alleged in the plaint that the
plaintiff--auction purchaser's son had been, and, before him the
auction-purchaser had been in possession of the house. Furthermore it is
alleged that "Raj Rani had, in collusion with Sankata Prasad, defendant
No. 3, Obtained a false sale-deed in favour of defendant No.
2 in respect of the 1/3 share of the said
house and misled some tenants in the said house and illegally prevented them
from paying to the plaintiff his share in the rent". The plaintiff,
therefore, claimed to be entitled to recover the rents also of amounts wrongly
realised by the defendants 1 and 2, the appellants before us. In paragraph 10
of the plaint, it Was stated that the defendants did not pay any taxes to the
Municipal Board which had to file suit for their recovery which were decreed.
The plaintiff, however, alleged that he had paid up the decretal amounts in
excess of the 2/3 share which belonged to the plaintiff. The plaintiff also
alleged that he was being obstructed in looking after the house and realising
rents. Hence, according to the plaintiff, he had to serve a notice dated 23rd
April, 1959, asking the defendants to partition the property. The plaintiff
alleged that the cause of action "accrued to the plaintiff firstly in 1956
and after that on the end of each month when the defendants illegally received
plaintiff's share in the rent from the tenants and did not pay to the plaintiff
and then on 15-11-58. When the plaintiff has to pay excess amount to the
Municipal Board on account of the defendants and the on 23-4-59 and, lastly, in
May, 1959, when the defendants refused to partition the plaintiff's share in
the said house, within the jurisdiction of this Court and this Court has the jurisdiction
to try this suit".
The defendants-appellants had denied any
concern with the mortgage. Apparently, their case was that as the husband of
Raj Rani, appellant No. 1 and the father of Kali Charan, appellant No. 2, was a
minor at the time of the alleged mortgage and his brother, not having borrowed
the money for any legal, necessary, could not bind Kripa. Shanker or his heirs.
Furthermore, the defendants pleaded that, even if the house' had been sold in
execution of the mortgage decree, the defendants-appellants "have been
openly denying the rights of the plaintiff and had been' in adverse possession
and occupation of the property for more than 12 years so that even if the
plaintiff or his predecessors had any right, it had been extinguished by the
operation of law of limitation".
The first question, on pleadings set out
above, for the trial. Court to determine was: has the plaintiff come with a
plea of dispossession by the defendants so that Article 142 of the old
Limitation Act was applicable to. The case, or, had the defendants, having set
up the plea of adverse possession, to establish an ouster in order to discharge
their burden of proof under Article 144 of the Limitation Act ? In view of
section 3 of the old Limitation Act, it was incumbent on the Court to determine
whether the Suit was filed within time, even if the plea of limitation had not
been taken, when the question had been raised. Section 3 (1) provided:
"3 (1). Subject to the provision
contained in sections 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period shall be dismissed,
although limitation has not been set up as a defence." The correct
procedure for the Court to adopt was not only to frame an issue on the question
of limitation but to determine whether it was governed by Article 142 or by
Article 144 of the Limitation Act. The trial Court did frame an issue
indicating that Article 142 was applicable. This was issue No. 2 framed as
follows:
"Whether the suit is within
limitation"? The trial Court observed: "It is also.
true that if the suit of the plaintiff is not
established to be within limitation, that is to say that, if the possession of
the plaintiff is not even within 12 years, the suit must fail as the rights of
the plaintiffs would be deemed to have been extinguished by the adverse
possession of defendants 1 and 2, or their Predecessor-in-interest, namely,
Kripa Shankar". All this shows that the trial 'Court was applying Article
142 of the old Limitation Act. We do not, however, find any finding given by
the trial Court on' the question whether, and, if so when and how, the
plaintiff was in actual or constructive possession of any part of the house. If
Article 142 applied, it meant that the plaintiff had admitted dispossession. If
this was the case, the following finding by the trial Court on the trial of the
plaintiff seems to us to be premature:
22 "Now it will be noted that there has
not been any partition between the plaintiff on the one hand and the other one
third share holder Smt. Deoka or her successor-in-interest on the other hand.
Smt. Deoka was admittedly a relation of Kripa Shanker and there is nothing
unusual if Smt. Deoka had allowed Kripa Shanker to continue to live in the suit
premises under the protection of her 1/3 share. The consistent Municipal
receipts, the litigation with tenants, and over all the title deeds of the
plaintiff; they all go to lend support to the plaintiff's case".
In the first appeal against that judgment, it
was again not decided anywhere what Article of the Limitation Act applied to
the case. It appears to us that the appellate Court had also not come to the
grips with the real question to be determined. It said:
"It was alleged that Kripa Shanker had
taken possession over the house. The learned counsel for the appellant argued
that these documents showed that Kripa Shanker was in possession over the
entire house and that Bhagwan Das never obtained actual possession over it and
only symbolical possession was delivered to him in this suit, It must be borne
in mind that Bhagwan Das was owner to only 2/3rd share and 1/3rd belonged to
Mst. Deoki, who was real aunt of Kripa Shanker, and unless Bhagwan Das had got
his share partitioned, he could not obtain actual possession over any portion
of the house and as such only symbolical possession was delivered to him.
The question only is whether he remained in
joint possession or not ? It is contended from the side of the appellants that
he was not in possession and Kripa Shanker was in adverse possession at least
from 1945, and that this suit was filed in 1959, that is after more than 12
years when the defendant appellants had already perfected their title by
adverse possession. This symbolical possession was delivered on 21st of
November, 1946. This suit was filed in 1959 that is more than 12 years after
and, therefore, there is force in the contention that it must be proved that
Bhagwan Das was in joint possession. Bhagwan Das was a co-sharer along with
Mst. Deoki.
Mst. Deoki's share ultimately came to the
defendant appellant in 1957 and as such in 1957 the defendant appellant became
co-sharer with the plaintiff respondent. In 1957, 12 years had not passed and
even if it is assumed that Bhagwan Das or the plaintiff respondent was not in
joint possession, their right had not ceased in 1957. It was observed by the
Supreme Court of India in the case P. Laxmi Reddy v. L. Laxmi Reddy (in 1957
A.I.R.
Supreme Court 314), 'the burden of making out
ouster is on the person claiming to displace the lawful title Of co-heir by his
adverse possession'." If the plaintiff's assertion was that the defendants
had dispossessed him it did not matter whether the defendants represented a 23
co-sharer or not. In that event, the plaintiff's case would certainly be deemed
to be one in which the assertion of dispossession was there. In the case before
us, it appears that the rights of Kripa Shanker, on the plaintiff's assertion
that he had been a party to the mortgage, had come to an end by the sale of his
rights in the property and delivery of possession to the auction purchaser. His
heirs could only be in adverse possession and not holding through Kripa Shanker
on the plaintiff's own assertions. In fact, they have not claimed to be holding
through Kripa Shanker. In any event, the allegations in the plaint appear to us
to amount to an allegation that, by asserting their own ownership and inducing
the tenants not to pay rents to the plaintiff, the defendants had dispossessed
the plaintiff. In such a case, even if a defendant in actual possession could
be deemed to be initially a co-sharer, the plaintiff would be really asserting
that the co-sharer had dispossessed or ousted him. Hence an ouster having been
admitted in the plaint, the burden would lie 'upon the plaintiff of proving his
Case that the ouster had taken place within twelve years. On any other view,
the distinction between articles 142 and 144 of the former Limitation Act,
which is important in this case, would vanish.
In a case between co-sharers, Bindhyachal
Chand & Ors. v. Ram Gharib Chand & Ors,(1) a "Full Bench of the
Allahabad High Court had examined the difficulties which arise when a co-sharer
sues another on the allegation that he had been dispossessed. Sulaiman, C.J.,
pointed out that article 144 was a residuary article Which applied to suits for
possession of immovable property which could not fall elsewhere.
As regards the distinction between articles
142 and 144, he observed (at p. 997):
"No doubt in many cases the distinction
is very fine,and the line of demarcation between dispossession and adverse
possession is thin. But, the question in each case is one of burden of proof,
and it is incumbent on the plaintiff, when he admits his dispossession, to
establish his possession within twelve years".
He went on to point out (at p. 998):
"Ordinarily, the possession of one
co-owner, who is entitled to joint possession of the whole property, is
refer-able to his title, and he cannot ask the Court to presumethat his possession
was illegal or adverse to the other co-owner. It follows that if one co-owner
is in actual possession of the joint property, and the other co-owner is either
absent or is not in actual possession, the latter would still be in
constructive possession of his property through his co-owner. There would be
prima facie no case, where the possession of one co-owner was illegal and was
necessarily adverse to that of the other co-owner. The presumption would be
that they are both in joint possession. But, it cannot be denied that one
co-owner can dispossess another (1)A.I.R.1934 All. 993.
3--240SCI/77 24 co-owner and can exercise
adverse possession over a joint property. If, therefore, the plaintiff, a
co-owner, admits that he has been dispossessed and that, at any rate, for a
short period prior to the suit, the possession of his co-owner was adverse to
him, then he cannot fall back on a mere presumption of joint possession in his
favour and succeed without showing any other circumstances whatsoever".
The following observations of the learned
Chief Justice are also useful (at p. 998):
"Personally speaking, I do not think
that the plaintiff can by cleverly drafting his plaint evade the burden of
proof which Art. 142 casts upon one who is suing for pos session on the ground
of dispossession. When a plaintiff falsely alleges that he is in possession and
wants a relief, to which the owner in possession is entitled, e.g., for
partition, injunction, joint possession, etc., and it is found that he was in
fact not in possession but had been dispossessed, technically speaking, the
suit would fail under s.
42, Specific Relief Act and would be
dismissed on the ground that he had omitted to ask for a consequential relief
and had failed to prove his case. But, a Court may allow him to change his
ground and give him a decree for possession, treating his claim as one for
recovery of possession on the basis of dispossession, provided he succeeds in
showing that his dispossession took place within 12 years".
It seems to us that, in the case now before
us, the High Court, on a second appeal to it, also failed to determine the
crucial question of actual or even constructive possession of the plaintiff
within twelve years.
It said:
"The argument advanced before me is that
after the decree in suit No. 57 of 1945 the possession of Kripa Shanker became
adverse and, as the suit for partition was not fried with 12 years of the date
of the decree, the suit was barred by limitation. A large number of authorities
were cited before me on the point. It was urged that if a member of an
undivided Hindu family sells his undivided share and the alience does not bring
a suit for partition and possession over his share within 12 years of the date
of the alienation the possession of the alienor and all the other coparceners
would be adverse and the suit for partition after the expiry of 12 years from
the date of the alienation would be barred by time. Some of the authorities
cited by the learned counsel for the appellant, to which I do not consider it
necessary to refer, would seem to support his contention. Learned counsel for
the respondent, however, has cited before me the latest case of the Supreme
Court in Manikayala Rao v. Narashnhaswami (AIR 1966 SC 470)".
The case relied upon by the High Court is
distinguishable on two grounds: firstly, it was not a case where the plaintiff,
on the pleadings in the plaint could be fairly said to have admitted
dispossession 25 or ouster by setting up that the alleged co-sharer in
possession was denying the rights of the plaintiff; and, secondly, delivery of
symbolical possession there was said to have interrupted adverse possession
which could, therefore, not be continuously for twelve years. In the case
before us, even if a symbolic delivery of possession to a co-sharer could be
said to have interrupted any adverse possession, that interruption took place
beyond 12 years.
Hence, it was the duty of the plaintiff to
have shown by cogent evidence how, by receipt of rent or an admission by the
defendants or otherwise, he or his predecessorininterest could be deemed to be
in actual or constructive possession as an owner or as a co-sharer with the
defendants over the house in dispute.
We may observe that the difficulty in
deciding the question whether article 142 or article 144, Limitation Act
applies to a case which really depends upon an interpretation of the pleadings,
was sought to be removed in the Limitation Act of 1963 by a more clarified
position in article 64 and 65 of Limitation Act of 1963. The reasons given for
this change were:
"Article 142 and 144 of the existing Act
have given rise to a good deal of confusion with respect to suits for
possession by owners of property. Article 64 as proposed replaces Art. 142, but
is restricted to suit based on possessory title so-that an owner of property
does not lose his right to the property unless the defendant in possession is
able to prove adverse possession".
In other words, in cases governed by the
former Limitation Act, at any rate, a plaintiff admitting dispossession, in
suits based on title, had to prove that he was in actual or constructive
possession within twelve years. Hence, the change in law. We do not, however,
propose to examine or lay down here the exact position under the amended law of
limitation under the act of 1963.
The result is that, in the case before us,
the plaintiff had to, prove that he was he actual or constructive possession
within twelve years. It would be enough if he establishes that he was in
constructive possession within twelve years by receipt of rent or otherwise.
There is no finding to that effect given by the High Court or by the
Subordinate Court.
We, therefore, allow this appeal, set aside
the judgments and orders of the High Court and of the first appellate Court. We
send the case back to the first appellate Court, which is the final Court of
facts, to determine, on the evidence already on record, whether the plaintiff
was in actual or constructive possession within twelve years of the filing of
the suit. If the plaintiff can establish that, the suit will have to be
decreed. Otherwise, the suit must fail.
The costs will abide the results.
S.R. Appeal allowed and case remanded.
Back
