PETITIONER:
RAJ RANI & ANR.
Vs.
RESPONDENT:
KAILASH CHAND & ANR.
DATE OF JUDGMENT17/02/1977
BENCH:
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 Bhag-
wandas 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). Respond-
ent 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 realis-
ing 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 prede-
cessors 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 Subordi-
nate 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 posses-
sion within twelve years by receipts of rent or otherwise.
[25F]
(3) A decision on the question whether Art. 142 Limita-
tion Act applies to a case, really depends upon an interpre-
tation of the pleadings. In cases governed by the former
Limitation Act, at any rate, a plaintiff admitting dispos-
session 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 allega-
tion 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 ini-
tially 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, distin-
guished.
Appeal allowed and case remanded to first Appellate
court to determine whether plaintiff was in possession
within the period of limitation.
JUDGMENT
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 respond-
ents.
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 Octo-
ber, 1937, at a Court sale in execution of a mortgage de-
cree. The house had been mortgaged by Sharda Prasad repre-
senting 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 Septem-
ber, 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 occupa-
tion 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 pos-
session 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 posses-
sion 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, defend-
ant No. 3, had started giving himself out as the owner of
1/3 share, on the basis of a giftdeed of 1953’ in his fa-
vour, 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 occupa-
tion 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, howev-
er, 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, accord-
ing to the plaintiff, he had to serve a notice dated 23rd
April, 1959, asking the defendants to partition the proper-
ty. 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 plain-
tiff’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 juris-
diction 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. Shan-
ker or his heirs. Furthermore, the defendants pleaded that,
even if the house’ had been sold in execution of the mort-
gage 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 pos-
session, 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 plain-
tiff 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 pos-
session 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 parti-
tioned, 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. Bhag-
wan 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 asser-
tion that he had been a party to the mortgage, had come to
an end by the sale of his rights in the property and deliv-
ery 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 owner-
ship and inducing the tenants not to pay rents to the plain-
tiff, 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 posses-
sion 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 be-
tween 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 disposses-
sion, 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, admitsthat 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, techni-
cally 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 dispos-
session, 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 pos-
session 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, there-
fore, 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 predecessorin-
interest 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 interpreta-
tion 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 posses-
sion within twelve years. It would be enough if he estab-
lishes 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 judg-
ments and orders of the High Court and of the first appel-
late 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.
26