When possession is deemed to have been discontinued?

Fry J. in Rains v. Buxton (1880) 14 Ch D 537 pointed out the difference between dispossession and discontinuance of possession in this way: there is dispossession where a person comes in and drives out the others from possession. There is discontinuance of possession where the person in possession goes out and is followed into possession by other persons. This view was adopted in numerous cases decided by the High Courts in India : Rakhal Das v. Khirode Bandhu MANU/WB/0072/1929: A.I.R. 1930 Cal 247 : 125 I.C. 732, Charu Chandra Pramanik v. Nahush Chandra Kundu MANU/WB/0414/1922: I.L.R. 50 Cal 49 : AIR. 1923 Cal 1, Gaya Prasad Karan v. Bakyamani Dasi MANU/WB/0301/1928: I.L.R. 56 Cal 914 : AIR 1929 Cal 297, Govinda Ramanuja v. Mahomed Esoof MANU/TN/0541/1924: A.I.R. 1925 Mad 834 : 87 I.C. 386, Kuthali Moothavar v. Kunharankutty I.L.R. 44 Mad 883 P.C. :AIR 1921 PC 181, Meharban Lalli v. Yusuf Khan Kallu 1938 N.L.J. 418 : A.I.R. 1939 Nag 7, Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite I.L.R. 35 Pom 79 and other cases. The word 'discontinuance' means cessation of possession by one followed by actual possession of another person. Their Lordships of the Privy Council held in Manisingh Mandhata v. Nawab Bahadur of Murshidabad I.L.R. 46 Cal 694 : AIR 1918 P.C. 180 and Bageshwari Charan Singh v. Jagannath Kuari MANU/PR/0012/1931: I.L.R. 11 Pat 272 P.C. : AIR 1932 P.C. 55 that when a person transfers his property to another and that transfer is eventually found to be invalid, he should be deemed to have discontinued his possession from the date of his transfer. In Manisingh Mandhata v. Nawab Bahadur of Murshidabad (Supra) where the plaintiff sued for possession on the allegation that the defendant's possession was permissive but the defendant denied such allegation, it was held that it was incumbent on the plaintiff to prove that the defendant's permissive possession began within 12 years prior to the suit, in other words, that the plaintiff's possession was discontinued within 12 years prior to the suit. The lower appellate Court was therefore right in applying Article 142 of the Limitation Act.1
The distinction between “dispossession” and “discontinuance” has been noticed in Gangu Bai v. Soni, 1942 Nagpur Law Journal 99, observing that “dispossession” is not voluntary, “discontinuance” is. In dispossession, there is an element of force and adverseness while in the case of discontinuance, the person occupying may be an innocent person. For discontinuance of possession, the person in possession goes out and followed into possession by other person.

Citation;1942NLJ99

IN THE HIGH COURT OF NAGPUR

S.A. No. 368 of 1940

Decided On: 14.11.1941

Appellants: Gangoobai
Vs.
Respondent: Soni

Hon'ble Judges/Coram:

Niyogi, J.

1. This is plaintiff's appeal from the reversing judgment of the Second Additional District Judge, Nagpur, in Civil Appeal No. 7-A of 1940, delivered on 10-4-1940.

2. The appellant instituted the suit out of which this appeal arises to recover possession of a house on the allegation that it originally belonged to her father and that it devolved on her on the death of her mother in 1937 and further that the defendant had been permitted to occupy the house two years prior to the suit on condition that she would vacate whenever the appellant required it. The cause of action was stated to have occurred in May 1939 when the respondent began constructing a Chhapri without the appellant's permission and that consequently her license was terminated. The respondent denied that the appellant was the owner and that she had granted a license two years before the suit. The respondent claimed to be in possession in her own right for more than 12 years. The trial Court found that the house belonged to the appellant and that the respondent had entered into possession only 7 or 8 years prior to the suit and that therefore she had not established adverse possession for more than 12 years. The trial Court evidently applied Article 144 of the Limitation Act. The lower appellate Court agreed with the trial Court on the point of the appellant's title but held that on the allegations made in the plaint the case fell to be regulated by Article 142 of the Limitation Act and that as the plaintiff failed to prove that she had granted a license within 12 years prior to the suit it was held to be barred by time.

3. The question of law which arises in this appeal is whether the appellant's suit was governed on the point of limitation by Article 142 or by 144 of Schedule I to the Limitation Act. The plaintiff alleged that she was the owner and that she had granted a license two years before the suit. In any suit in which a plaintiff alleges his possession within 12 years prior to the defendant's possession the case must fall under Article 142 of the Limitation Act : see Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi I.L.R. 16 Cal 473 P.C.. Whenever there is an allegation of original possession which the plaintiff lost by dispossession the suit must fall under Article 142. The question is whether the allegation that the plaintiff had granted a license within 2 years should be interpreted as implying dispossession or discontinuance of possession.

4. Fry J. in Rains v. Buxton (1880) 14 Ch D 537 pointed out the difference between dispossession and discontinuance of possession in this way: there is dispossession where a person comes in and drives out the others from possession. There is discontinuance of possession where the person in possession goes out and is followed into possession by other persons. This view was adopted in numerous cases decided by the High Courts in India : Rakhal Das v. Khirode Bandhu MANU/WB/0072/1929: A.I.R. 1930 Cal 247 : 125 I.C. 732, Charu Chandra Pramanik v. Nahush Chandra Kundu MANU/WB/0414/1922: I.L.R. 50 Cal 49 : AIR. 1923 Cal 1, Gaya Prasad Karan v. Bakyamani Dasi MANU/WB/0301/1928 : I.L.R. 56 Cal 914 : AIR 1929 Cal 297, Govinda Ramanuja v. Mahomed Esoof MANU/TN/0541/1924: A.I.R. 1925 Mad 834 : 87 I.C. 386, Kuthali Moothavar v. Kunharankutty I.L.R. 44 Mad 883 P.C. :AIR 1921 PC 181, Meharban Lalli v. Yusuf Khan Kallu 1938 N.L.J. 418 : A.I.R. 1939 Nag 7, Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite I.L.R. 35 Pom 79 and other cases. The word 'discontinuance' means cessation of possession by one followed by actual possession of another person. Their Lordships of the Privy Council held in Manisingh Mandhata v. Nawab Bahadur of Murshidabad I.L.R. 46 Cal 694 : AIR 1918 P.C. 180 and Bageshwari Charan Singh v. Jagannath Kuari MANU/PR/0012/1931 : I.L.R. 11 Pat 272 P.C. : AIR 1932 P.C. 55 that when a person transfers his property to another and that transfer is eventually found to be invalid, he should be deemed to have discontinued his possession from the date of his transfer. In Manisingh Mandhata v. Nawab Bahadur of Murshidabad (Supra) where the plaintiff sued for possession on the allegation that the defendant's possession was permissive but the defendant denied such allegation, it was held that it was incumbent on the plaintiff to prove that the defendant's permissive possession began within 12 years prior to the suit, in other words, that the plaintiff's possession was discontinued within 12 years prior to the suit. The lower appellate Court was therefore right in applying Article 142 of the Limitation Act.

5. The next question is whether the plaintiff was able to prove her possession within 12 years. The lower appellate Court found on consideration of the evidence that the plaintiff had been out of possession of the site since a time before the existing house was built on it, for more than 12 years and that the plaintiff's allegation that the license had been granted 2 years prior to the suit was disproved. That is a finding of fact which is not open to challenge in second appeal. The result is that the lower appellate Court's decree is affirmed and the appeal is dismissed with costs.

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