Second Appeal No.1435 of 2005

27th October, 2010

Petitioner Counsel: Shri. A. S. ABHYANKAR
Respondent Counsel: Shri. S. K. SHINDE,Shri. A. R. KALE

Cases Cited:
Rajender Singh Vs. Santa Singh, 1974 Mh.L.J. 1 [Para 3]
Gurubinder Singh Vs. Lal Singh, AIR 1965 SC 1553 [Para 3]
Ramaiah Vs. N. Narayana Reddy (dead) by L.Rs., AIR 2004 SC 4261 [Para 3,11]
Nair Service Society Ltd. Vs. K. C. Alexander, AIR 1968 SC 1165 [Para 3]
Tirumala Tirupati Devasthanams Vs. K. M. Krishnaiah, AIR 1998 SC 1132 [Para 3]

JUDGMENT

JUDGMENT :- The present respondent No.1/Ori. Plaintiff instituted Regular Civil Suit No.85 of 1972 against the present appellant and the respondent No.2 for possession of land bearing Survey No.261 at Village Dhanora. The possession was sought from the defendant No.1 i.e. the present appellant by the plaintiff on the basis of title. The Trial Court decreed the suit of the plaintiff i.e. present respondent No.1, directing the legal representatives of the deceased defendant No.1 to hand over the possession of the suit field to the plaintiff, and also pay damages of Rs.1,500/- One of the legal representative of original defendant No.1 Khandu preferred Regular Civil Appeal bearing No.229 of 1990 before the District Court, Nandurbar. The Ad-hoc Additional District Judge, Nandurbar dismissed the said appeal. It also allowed the cross-objection filed by the plaintiff regarding separate inquiry for future mesne profit. The said legal representative of defendant No.1 Khandu preferred the present Second Appeal against the aforesaid Judgments.

2. The Second Appeal has been admitted on following substantial question of law :-

"A] Whether the District Court committed error in not appreciating the question of limitation in proper perspective and holding that the suit is not barred by limitation ?"

3. Shri. A. S. Abhyankar, learned Counsel for the appellant with all his persuasive skills canvassed following propositions :-

i] The suit would be governed by Article 64 of the Indian Limitation Act, 1963, and as per Section 3 of the Indian Limitation Act, the Courts were duty bound to address on the said aspect of limitation. For the said purpose he relied on the Judgment of the Apex Court in a case of "Rajender Singh & others Vs. Santa Singh and others, reported in 1974 Mh.L.J. 1".

ii] The plaintiff had revoked the authority of the defendant No.2 in the year 1959 and still the defendant No.2 continued in possession. The defendant No.1 was inducted in possession by the defendant No.2 and the possession of defendant No.2 shall be tagged/tacked with the possession of the defendant No.1, and the suit filed in the year 1972, is barred by limitation. The learned Counsel relied on the Judgment in a case of "Gurubinder Singh and another Vs. Lal Singh and another, reported in AIR 1965 SC 1553".

iii] Even if the suit is shown to have been based on title, still if it is shown that the plaintiff was dispossessed prior to 12 years of the filing of the suit, then still Article 64 can be invoked, and for the said purpose, the learned Counsel relied on the Judgment of the Apex Court in a case of "Ramaiah Vs. N. Narayana Reddy (dead) by L.Rs., reported in AIR 2004 SC 4261", an unreported Judgment of learned Single Judge of this Court in Appeal No.740 of 1971 decided on 23rd November, 1977, and the Judgment of the Apex Court in a case of "Nair Service Society Ltd. Vs. K. C. Alexander and others, reported in AIR 1968 SC 1165".

iv] The defendant No.2 was acting adverse to the interest of the plaintiff, at least since 1958 which can be seen from the Judgment of the Revenue Tribunal in the proceedings between one Dawaji and defendant No.2 in respect of the suit property, wherein Dawaji had claimed that he was inducted by the present defendant No.2. The said Judgment would be relevant and would be admissible, even though plaintiff was not party in the said proceedings, for the said purpose, learned Counsel relied on the Judgment of the Apex Court in a case of "Tirumala Tirupati Devasthanams Vs. K. M. Krishnaiah, reported in AIR 1998 SC 1132".

v] Though the amendment application was rejected by the lower appellate court, introducing plea of limitation. The same was challenged by filing writ petition which was withdrawn, but the High Court in the said order had allowed the present appellant to agitate the point of limitation in arguments and the same is required to be considered in Second Appeal.

vi] The plaintiff glossed over the earlier proceedings. The issue of tenancy was referred to the tenancy Court. The Tenancy Court negatived the case of defendant that they were tenants. The same was challenged before the High Court, and the High Court vide its Judgment in Writ Petition 65 of 1985 decided on 05th March, 1986 had held that the defendant No.2 was a trespasser and taking advantage of plaintiffs absence from Nandurbar, he kept on doing acts destructive of plaintiff's right title and interest over the land, with such a finding no evidence is required to show that the acts of defendant No.2 were hostile to the ownership rights of the plaintiff at least from 1958 and the suit filed in the year 1972 is barred by limitation.

vii] As the suit was not brought within 12 years as per Article 64 of the Indian Limitation Act, the right of the plaintiff in the property itself stands extinguished as per Section 27 of the Indian Limitation Act, 1963, and the suit itself was not maintainable. As such, no question arises of going to the pleadings of the parties also.

4. Per contra, Shri. Shinde learned Counsel for the respondent No.1/Original plaintiff strenuously contended that both the defendants pleaded that they are in permissive possession, both the defendants claimed tenancy rights and they had never claimed adverse possession, pleadings of the parties would govern the applicability of the relevant provision governing limitation. The pleadings show that they were in permissive possession, as such no question arises of applicability of Article 64 of the Indian Limitation Act, 1963. The learned Counsel further contended that the suit of the plaintiff being based on title, the same would be governed by Article 65 and as adverse possession is not claimed by the parties no question arises of suit being barred by law of Limitation. The learned Counsel relied on the un-reported Judgment of the learned Single Judge of this Court in Second Appeal No.1498 of 2005 decided on 14th August, 2008.

5. I have heard learned Counsel for the respective parties extensively on the substantial question of law framed by this Court, while admitting the appeal. Before proceeding to deal with their arguments,it would be appropriate to reproduce the relevant provisions of Limitation Act, 1963, necessary to adjudicate the controversy.

Date of suit	Period of limitation	Time from which period begins to run
64. For possession of immovable property based on previous possession and not on title title, when the plaintiff while in possession of the property has been dispossessed.	Twelve years	The date of dispossession.
65. For possession of immovable property or any interest therein based on title. Explanation- For the purposes of this Article - (a) Where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to income adverse only when the estate of the remainderman, 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 of 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 resentative of the judgmentdebtor who was out of possession.	Twelve years	When the possession of the defendant becomes adverse to the plaintiff.

"Section 27 :- Extinguishment of right to property -

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

6. It would be also necessary to refer to the pleadings of the parties which are in vernacular language i.e. Marathi. The said pleadings are reproduced in English by the Court below. The same can be culled out as under :-

Pleadings of plaintiff/respondent No.1 :

"i] It is the case of respondent No.1/Ori. plaintiff that the land Sr. No.261, situated at Dhanore, admeasuring 13 Acres, 23 Gunthas, is owned by him,thus land was being cultivated by respondent No.1 personally. However, as respondent No.1 was residing at a long distance, he instructed his elder brother i.e. original defendant No.2 to supervise his land. As original defendant No.2 was not giving proper accounts to the respondent No.1, he instructed the original defendant No.2 to stop supervising the suit property.

ii] As plaintiff is in service and is residing at a long distance, he is unable to come at village Dhanore repeatedly. By taking disadvantage of this facts, the original defendant No.1 had cultivated the suit land unauthorisedly since 1966-67. Therefore, plaintiff issued a notice dated 28.23.1992 to original defendant No.1, she gave a false reply to that notice alleging that she had given Rs.4,000/- to original defendant No.2.

iii] Respondent No.1/plaintiff had never empowered original defendant No.2 to assign his land for cultivation to any other person. Respondent No.1 has not received any amount from the original defendant No.2. So also, he is not having any knowledge about the so called transaction taken place, in between original defendant Nos.1 & 2.

iv] Inspite of giving notice to the original deceased defendant No.1, she had not delivered possession of the suit property to respondent No.1. Therefore, respondent No.1 is constrained to file suit for possession against her. As original deceased defendant No.1 alleged that she had given an amount of Rs.4,000/- to original defendant No.2, defendant No.2 is added as party to the suit.

v] The suit land is of good quality. The income more than Rs.1,000/- P.A. can be fetched from it. The original deceased defendant No.1 is cultivating the suit land illegally and, therefore, respondent No.1 claimed past mesne profits @ of Rs.500/- P.A. for preceding three years from filing of the suit. He also prayed for possession of the suit property as an owner from deceased defendant No.1, alongwith future mesne profits.

Pleadings of Defendant No.1/Appellant

vi] Deceased defendant No.1 resisted the suit by filing her written statement Exh.21, she admitted that the suit property is owned by respondent No.1. She further alleged that on account of service, respondent No.1 is residing at different stations. Therefore, defendant No.2 is looking after the suit property, as power of attorney of respondent No.1.

vii] The original defendant No.2 obtained an amount of Rs.2,000/- from her in the year 1964 and again an amount of Rs.2,000/- in the year 1965, on behalf of respondent No.1. That amount was obtained by defendant No.1 for making the payment of "Vihir Tagai" and also for another purposes. In lieu of that amount, defendant No.2 gave this suit property to the possession of deceased defendant No.1 in the year 1964-65. It was agreed in between them that there will be no interest to the amount, so also there will be no rent of that agricultural land. Defendant No.2 had executed two separate agreements dated 14-5-1964 and 14-04-1965 while giving the suit land in her possession.

viii] It is her further case that her son received the notice of Assistant Gram Sevak, Dhanore. He inquired about the cultivation of the suit property. After completion of that inquiry, her name is recorded in the possession column of 7/12 extract, since 1966-67. Therefore, unless and until, the respondent No.1 is not paying Rs.4,000/- to her, she is entitled to cultivate the suit property. Consequently, respondent No.1 is not entitled for possession of the suit property.

ix] It is her alternative contention that as per Bombay Tenancy and Agriculture Lands Act, she is a tenant of suit property. In order to have finding on this point, she prayed for making reference to Tenancy Tahasildar. On the basis of this pleading, she further averred that Civil Court is not having jurisdiction to pass a decree for possession of the suit land.

x] The transaction between defendant Nos.1 & 2, has taken place with the consent of respondent No.1. Therefore, those transactions are binding upon respondent No.1. After giving notice by respondent No.1, she gave its reply. Thereafter, respondent No.1 started R.T.S. Proceeding No.18/1972 and it is pending.

xi] Respondent No.1 and original defendant No.2 both are real brothers. Both of them, by collusion, have filed this false suit, with intention to grab Rs.4,000/- of deceased defendant No.1 or to snatch away her right to possess the suit property as tenant. Therefore, on all these ground, deceased defendant No.1 prayed for dismissal of the suit.

Pleadings of Defendant No.2/Respondent No.2 :-

xii] Defendant No.2 resisted the suit by filing his written statement at Exh.14. This defendant also admitted the title of respondent No.1. It is his case that the suit property is being cultivated by him since long back. Therefore, he is a tenant of the suit land. Civil Court is not having jurisdiction to pass a decree for possession, in favour of landlord from the tenant. He further averred that as a tenant, he is cultivating the suit land by engaging deceased defendant No.1 as a labour. She is not having any concern or interest in the suit property. Even if it is revealed that the suit property is given in possession of deceased defendant No.1, then at the most, it can be said that he has sublet agriculture land in her favour for cultivation. In such circumstances, the present suit is not tenable in the Civil Court.

xiii] He further averred that income of Rs.1,000/- P.A. cannot be fetched from the suit property. At the most, after deduction of expenses Rs.150/- to 200/- will be earned yearly from the suit property. He further averred that the deceased defendant No.1 had taken the income from the suit property for last three years, prior filing of the suit. Therefore, he prayed for dismissal of the entire suit."

7. In appeal the defendant No.1/present appellant preferred amendment application, thereby sought to introduce the plea of limitation. Vide the said amendment application the appellant tried to contend in alternative that the High Court in Writ Petition No.65 of 1985 in the proceedings arising out of Tenancy Reference had given a finding that since, 1959 the possession of the defendant is adverse, as such in the year 1972, the plaintiff's ownership rights stand extinguished as the said finding operates as res-judicata.

8. Though the application for amendment was rejected, in Writ Petition filed against the same the High Court had allowed the appellant to agitate the point of limitation. The Second Appeal is admitted on the question of limitation itself and same is required to be adjudicated.

9. Under the present Limitation Act, 1963, all suits for possession of immovable property have been brought under two categories namely :-

1] Suits based on the right to claim possession based on previous possession and not on proprietary title; and

2] The suits based on proprietary title.

The first class of suits will attract Article 64 and the suits based on title will be governed by Article 65 and the time would begin to run when the possession of defendants becomes adverse.

10. The suit under Article 64 must be brought within 12 years from the date of dispossession. As such, for applicability of Article 64 of the Limitation Act, the prima donna requirement is that the plaintiff should be dispossessed, or should discontinue possession. The expression "dispossession" applies when a person comes in and drives out another from possession. It imports ouster, i.e. driving out of possession against the will of a person in actual possession. This driving out cannot take place when the transfer of possession was voluntary i.e. to say not against the will of person in possession, but in accordance with his wishes and active consent. Dispossession implies some amount of force or fraud. As such, unless it is shown that the plaintiff was dispossessed by force or by fraud. Article 64 of the Limitation Act would not be applicable. If the plaintiff on his own volition and voluntarily handed over his property, that would not come within the ambit and purview of the expression "dispossession" interalia Article 64 would not be applicable in such a case.

11. In the present case, undisputedly, plaintiff who is the owner of the property had entrusted the suit property to the defendant No.2 to supervise, as he had to reside at a long distance, because of his service. This fact, which was pleaded by the plaintiff is not disputed by defendant No.1 or defendant No.2. As such, the entry of the defendant No.2 on the suit property is not by force or by fraud, but permissive i.e. by the consent of and on account of the volition and voluntary act of the plaintiffs. In such circumstances, the requirement of Article 64 i.e. "dispossession" is absent. In such circumstances, Article 64 would have no application. The Judgment of the Apex Court relied by Shri. Abhyankar, in a case of "Ramaiah Vs. N. Narayana Reddy (Dead) by L.Rs.", and an unreported Judgment of learned Single Judge of this Court, in a case of "Anant Govind Redekar & others Vs. Shri. Dev Hanuman Devasthan, Khed", in Appeal No.740 of 1971, and the Judgment of the Apex Court in a case of "Shamsundar Prasad and others Vs. Rajpal referred supra, would not be relevant. In the said judgments the plaintiff was dispossessed prior to 12 years of the filing of the suit. In that context, the Apex Court in a case of "Anant Govind Redekar & others Vs. Shri. Dev Hanuman Devasthan, Khed, in Appeal No.740 of 1971", referred supra and the learned Single Judge of this Court in a case of "Anant Govind Redekar & others Vs. Shri. Dev Hanuman Devasthan, Khed, in Appeal No.740 of 1971" the Courts have held that Article 64 would be applicable. It is trite law that the Judgments of the Apex Court or this Court cannot be read as Euclid theorem, but will have read in the context in which they have been delivered. Even the Apex Court in a case of "Ramaiah Vs. N. Narayana Reddy (dead) by L.R." referred supra has held thus :-

"We do not find any merit in the aforestated arguments. Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within article 65. The question whether the article of limitation applicable to a particular is article 64 or article 65 has to be decided by reference to pleadings. The plaintiff can not invoke article 65 by suppressing material facts. In the present case, in Suit No.357/60 instituted by N. Narayana Reddy in the Court of Principal Munsiff, Bangalore, evidence of the appellant herein was recorded. In that suit, as stated above, appellant was the defendant. In his evidence appellant had admitted that he was in possession of the suit property up to 1971. This admission of the appellant in that suit indicates ouster from possession of the appellant herein. In the present suit instituted by the appellant, he has glossed over this fact. In the circumstances, both the Courts below were right in coming to the conclusion that the present suit was barred by limitation. The appellant was ousted in 1971. The appellant had instituted the present suit only on 8-5-1984. Consequently, the suit has been rightly dismissed by both the Courts below as barred by limitation."

12. The pleadings of the parties would play a pivotal role in determining which Article of the Limitation Act would govern the suit. In the present case, even the defendant No.2 who had inducted defendant No.1 in possession, has no where shown his animus to hold the property as an owner. In his written statement also he claimed to be a tenant. The defendant No.2 posing himself to be a representative and agent of the plaintiff, entered into an unregistered mortgage with the defendant No.1, and on the basis of unregistered mortgage, the defendant No.1 claimed deemed tenancy. Even defendant No.2 claimed permissive possession. The defendants were never in possession of the property in the assumed character of owner and were not exercising ordinary rights of ownership having title to the property and had always pleaded permissive possession, they cannot be said to be in adverse possession. Permissive possession and hostile animus operate in conceptually different fields.

13. In the light of aforesaid facts Article 64 of the Limitation Act, 1963 would not be applicable interalia the plaintiffs suit was not barred by limitation, on said count.

14. Shri. Abhyankar, learned Counsel has harped on the observations of the Judgment of the learned Single Judge delivered in Writ Petition No.65 of 1985 arising out tenancy reference made to determine whether "Sakhubai and thereafter, the petitioner is a deemed tenant of the suit land" to canvass that at least since 1958 the acts of defendant No.2 were hostile and since said date period of limitation would start running and suit would be barred by limitation. In the said Reference this Court had only observed as under :-

"The Judgment gives back ground and negative the submission that defendant No.2, was acting as an agent of plaintiff in the year 1964-65. In fact no one regarding the deed of April 14, 1965, can miss noticing the antagonism of defendant No.2, in relation to the plaintiff. Defendant No.2 was a trespasser and taking advantage of plaintiff's absence from Nandurbar. Kept on doing acts destructive of plaintiff's right, title and interest over the land. There being definite evidence in support of this conclusion it is not necessary to go into the further submission, that even if the deeds be construed as acts within the competence of defendant No.2's powers as an agent, defendant No.1 could not claim the status of a tenant. However, to give completeness to the judgment I will now turn to the consideration of the question. In Daya Lala's case the Supreme Court did give expression to the Tenancy Act embracing within S.4, a deemed tenant. Party from contractual tenants."

The said part of Judgment relied by the appellant cannot be read in isolation. It was observed that the defendant No.2 was doing acts destructive of plaintiffs right, title and interest over the land. The same was with regard to issue as to whether the defendant No.1 could claim deemed tenancy as pleaded by her in the Written Statement. The fact that the defendant No.1, or defendant No.2 could not prove their status of being legal tenant, same would not ipso-facto prove adverse possession. The said observations were in regard to the adjudication of the Reference whether defendant No.1 would assume the character of a deemed tenant.

15. The right to property is not merely a statutory right but it is also Constitutional right. It is now also being considered as a human right. The dimensions of human rights have widen so much that now the property disputed issues are also being raised within the contours of human rights. Owner cannot be arbitrarily deprived of his property. The right to property is inviolable and sacred.

16. The defendant No.2 who was entrusted with the property had never claimed adverse possession, nor had shown animus to hold the property as an owner. Even agreement which he entered into with the defendant No.1 depicts that he was representing as an agent of plaintiff. When the defendant No.2 himself never claimed his possession as an owner the defendant No.1 cannot have the benefit of the principle of tacking for including the period of possession of defendant No.2 to claim adverse possession or bar by limitation. Moreover, the defendants in their written statement no where pleaded that they have perfected the title by adverse possession.

17. Taking into account the above conspectus the defendants could not prove that they have perfected their title by adverse possession as required under Article 65 of the Limitation Act, nor the case comes within the realm of Article 64 of the Limitation Act.

In the light of the above, the Second appeal is dismissed. However, with no order as to costs.

Second appeal dismissed.