Article 136 of the Limitation Act, 1963 provided limitation of
12 years for execution of the decree or order of the Civil Court
(Except decree granting mandatory injunction). Period of Twelve
years is computable from the time the decree became enforceable or
from the date of the first default on the part of the judgment debtor to
comply with the decree. Thus, the limitation starts when the decree is
capable of being executed. Irrespective of the bar by limitation to
execute the decree, such decree is still a conclusive evidence of the
matter decided by it. Thus, for the purposes unconnected with the
execution of the decree, validity of the decree is not affected. The
judgment debtor may be punished for his disobedience to the decree
passed or for contempt of the court. The doctrine of res judicata
would
prevent the second suit on the same cause of action. But fresh suit by
the plaintiff on the different cause of action on the basis of the title is
not barred. In other words, fresh Suit by owner of immovable
property upon a different cause of action is not barred. It is for the
plaintiff to aver the cause of the suit by stating the fact in the plaint
which if traversed is required to be proved by the plaintiff to support
his right to the judgment of the Court. When the plea of adverse
possession was taken in a suit based on title, Article 65 of the
Limitation Act, 1963 was attracted. Period of 12 years of limitation is
computable from the date i.e. 05.05.1990 in the present case. The first
Appellate Court rightly held the suit as well within limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR
SECOND APPEAL NO.8 OF 2000
Smt. Shakuntala w/o. Ganpatrao Ramgirkar,
// VERSUS //
Chandrabhan s/o. Tukaram Rindhe,
CORAM
: A.P.BHANGALE, J.
Date of pronouncing the Judgment : 6.3.2014.
Citation;2014(4) MHLJ 895 Bom
Read original judgment here; click here
1. This appeal arose out of the Judgment and Order dated
28.10.1999 passed in the Regular Civil Appeal No.263 of 1996 by the
4th Additional District Judge, Nagpur which was allowed. The said
appeal was filed challenging the Judgment and Order dated 11.3.1996
passed in Regular Civil Suit No.1395 of 1990 by Civil Judge (J.D.),
Nagpur whereby the suit was dismissed. For the sake of convenience,
the parties are referred to in the judgement by their nomenclature in
title of the plaint respectively.
2. Heard the submissions at the bar.
3. This Second Appeal was admitted upon the following
substantial questions of law.:::
(i) Is it not that if the decree dated 28071968
in Civil Suit
No.1998/1967 is not executed within a period of 12 years
as per article 136 of the Limitation Act, 1963, the right of
the owner to obtain possession of the suit property gets
lost ?
(ii)Is it not if the decree dated 28071968
in Civil Suit
No.2998/1967 is not executed within a period of 12 years
as per article 136 of the Limitation Act, 1963, the owners
are not entitled in law to file a fresh suit to obtain
possession of the same property which was the subject
matter of the Civil Suit No.2998/1967 ?
I answer the above questions in the negative for
the following reasons.
4. One Smt. Sheeladevi Diwanchand Midha, who had purchased
the suit property from Shri Haricharanlal Govindprasad Agrawal, sold
the suit property to the plaintiff. The plaintiff claimed ownership of
the suit premises on the basis of the registered Sale deed dated
19.10.1984. (Exh.45).
5. In the past, Haricharanlal had sued his tenant of the suit
premises Shri Ganpat Ramgirkar. The notice to quit was issued on
05.07.1965. But the tenant did not vacate the house. The plaintiffs
had instituted the proceedings under the Rent Control law. Original
plaintiffs had filed the suit for declaration and recovery of possession
of the house bearing No.312/03,
Ward no. 29, Garud khamb Road,
Nagpur. The suit house was originally owned by Haricharanlal
Govindprasad who had instituted the suit for recovery of possession
against the original defendant being Suit No.2998 of 1967 decreed on
23.07.1968. But the defendants denied the title of the plaintiff as
landlord. Thus, the present suit on title was instituted by the plaintiff
after issuing notice to the defendant. The plaintiff contended that
assuming that Haricharanlal did not file the execution proceedings,
the defendant’s legal representatives cannot become the owner of the
suit premises. The title suit was disputed on the ground that the
landlord Haricharanlal had failed to execute the decree and hence, the
remedy for recovery of possession on the same ground is barred as
time for execution has expired. The suit is, thus, challenged as barred
by limitation as also in view of Order II, Rule 2 of the Code of Civil
Procedure.
6. The trial Court held that the plaintiffs were owners of the suit
premises, but the suit was untenable in the present form and
proceeded to dismiss the suit.
7. The first Appellate court held that when a plea of adverse
possession is raised, Article 65 is attracted and it is the Civil Court and
not the Revenue Court which can decide the plea of adverse
possession. The party raising the plea for adverse possession must
plead and prove that his possession of the suit property was hostile
assertion by the defendant to the knowledge of the owner,
uninterrupted, open, continuous, animus possidendi for the period of
prescription i.e. 12 years or more. T. Anjanappa & Ors. v.
Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is wellrecognised
proposition in law that mere possession, however long,
does not necessarily mean that it is adverse to the true owner. Adverse
possession really means the hostile possession which is expressly or
impliedly in denial of title of the true owner and in order to constitute
adverse possession, the possession proved must be adequate in
continuity, in publicity and in extent so as to show that it is adverse to
the true owner. The classical requirements of acquisition of title by
adverse possession are that such possession in denial of the true
owner’s title must be peaceful, open and continuous. The possession
must be open and hostile enough to be capable of being known by the
parties interested in the property, though it is not necessary that there
should be evidence of the adverse possessor actually informing the
real owner of the former s hostile action.”
8. Article 136 of the Limitation Act, 1963 provided limitation of
12 years for execution of the decree or order of the Civil Court
(Except decree granting mandatory injunction). Period of Twelve
years is computable from the time the decree became enforceable or
from the date of the first default on the part of the judgment debtor to
comply with the decree. Thus, the limitation starts when the decree is
capable of being executed. Irrespective of the bar by limitation to
execute the decree, such decree is still a conclusive evidence of the
matter decided by it. Thus, for the purposes unconnected with the
execution of the decree, validity of the decree is not affected. The
judgment debtor may be punished for his disobedience to the decree
passed or for contempt of the court. The doctrine of resjudicata
would
prevent the second suit on the same cause of action. But fresh suit by
the plaintiff on the different cause of action on the basis of the title is
not barred. In other words, fresh Suit by owner of immovable
property upon a different cause of action is not barred. It is for the
plaintiff to aver the cause of the suit by stating the fact in the plaint
which if traversed is required to be proved by the plaintiff to support
his right to the judgment of the Court. When the plea of adverse
possession was taken in a suit based on title, Article 65 of the
Limitation Act, 1963 was attracted. Period of 12 years of limitation is
computable from the date i.e. 05.05.1990 in the present case. The first
Appellate Court rightly held the suit as well within limitation.
9. Furthermore, regarding presumption of jurisdiction of the
Civil Court, we may refer to ruling in Raleigh Investment Co. Ltd. v.
Governor General in Council, AIR 1947 PC 78, in which it is held as
under :
"...................there is a general presumption that there must
be a remedy in the ordinary civil court to a citizen claiming
that an amount had been recovered from him illegally and
that such a remedy can be held to be barred only on very
clear and unmistakable indication to the contrary.” The
exclusion of the jurisdiction is by an express provision to
that effect or which leads to a necessary and inevitable
implication of that nature.
10. The Constitution Bench of the Hon'ble Supreme Court in
Dhulabhai and Anr. v. State of Madhya Pradesh and Anr., AIR 1969
SC 78, held that exclusion of jurisdiction of the Civil Court by express
provision may not be a complete bar to entertain a suit if party
satisfies the Civil Court that the Statutory Tribunal has not acted in
conformity with the fundamental principles of judicial procedure.
More so, the Statutory Tribunal must be competent to provide all the
remedies normally associated with the actions' in Civil Courts, which
are prescribed by the said Statute or not. More so, the exclusion of
jurisdiction of the Civil Court is not readily to be inferred unless the
aforesaid conditions are fulfilled.
11. In Smt. Bismillah v. Janeshwar Prasad and Ors., AIR 1990
SC 540, the Hon'ble Supreme Court has observed as under :
"It is true that the question of jurisdiction depends upon the
allegations in the plaint and not the merits or the result of
the suit. “ Legal position cannot be disputed that the issue of
jurisdiction of the civil court has to be decided on the basis
of the averments made in the plaint. The jurisdictional fact
in issue is required to be proved by the plaintiff who
approaches the court. The court to which the plaintiff has
approached would have to decide the jurisdictional fact and
proceed further to decide the suit on merits if its finding is
affirmative. Ordinary Civil court thus has the jurisdiction
irrespective of the defence taken by the defendant.
Allegations or averments in the plaint would thus decide the
forum to entertain and try the suit irrespective of the defence
in the written statement. The plaintiff would get relief by
proving the correctness of the averments made in the plaint
otherwise if the court finds that the averments are not true
the suit will have to be dismissed. In other words the
defendant cannot force the plaintiff to go the forum where
the plaintiff cannot go on the basis of his averments made in
the plaint.
12. In cases of the Suit on title, the Hon’ble Supreme Court of
India, (three Judges Bench) in case of Maria Margarida Sequeira
Fernandes & Ors. vsErasmo
Jack De Sequeira reported in (2012) 5
SCC 370 succinctly concluded in these words:
“ Principles of law which emerge in this case are crystallized
as under:1.
No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by long
possession of years or decades such person would not acquire
any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long possession.
The caretaker or servant has to give possession forthwith on
demand.
3. The Courts are not justified in protecting the possession of
a caretaker, servant or any person who was allowed to live
in the premises for some time either as a friend, relative,
caretaker or as a servant.
4. The protection of the Court can only be granted or
extended to the person who has valid, subsisting rent
agreement, lease agreement or license agreement in his
favour.
5. The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or
interest whatsoever for himself in such property irrespective
of his long stay or possession.”
13. Looking to the legal position discussed as above, in my
opinion, the learned first Appellate Judge has rightly set aside the
Judgment and Order of dismissal of the suit by the trial Court by
allowing the First Appeal and passing decree as prayed for by the
plaintiff holding the defendant liable jointly and severally to deliver
possession to the plaintiff and directing the defendants to deliver
vacant possession of the suit house to the plaintiff.
14. In the result of the discussion and answers recorded to the
substantial questions of law as raised, the appeal must fail. The
appeal is sans merits. It is, therefore, dismissed with costs.
JUDGE
Mr.R.R.Shrivastava, learned Counsel for the appellants prays
that the ad interim order in relation to possession shall be continued
for a further period of eight weeks since the appellants want to
approach the Apex Court. The ad interim order in relation to
possession shall accordingly continue to operate for a further period
of eight weeks.
Print Page
12 years for execution of the decree or order of the Civil Court
(Except decree granting mandatory injunction). Period of Twelve
years is computable from the time the decree became enforceable or
from the date of the first default on the part of the judgment debtor to
comply with the decree. Thus, the limitation starts when the decree is
capable of being executed. Irrespective of the bar by limitation to
execute the decree, such decree is still a conclusive evidence of the
matter decided by it. Thus, for the purposes unconnected with the
execution of the decree, validity of the decree is not affected. The
judgment debtor may be punished for his disobedience to the decree
passed or for contempt of the court. The doctrine of res judicata
would
prevent the second suit on the same cause of action. But fresh suit by
the plaintiff on the different cause of action on the basis of the title is
not barred. In other words, fresh Suit by owner of immovable
property upon a different cause of action is not barred. It is for the
plaintiff to aver the cause of the suit by stating the fact in the plaint
which if traversed is required to be proved by the plaintiff to support
his right to the judgment of the Court. When the plea of adverse
possession was taken in a suit based on title, Article 65 of the
Limitation Act, 1963 was attracted. Period of 12 years of limitation is
computable from the date i.e. 05.05.1990 in the present case. The first
Appellate Court rightly held the suit as well within limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR
SECOND APPEAL NO.8 OF 2000
Smt. Shakuntala w/o. Ganpatrao Ramgirkar,
// VERSUS //
Chandrabhan s/o. Tukaram Rindhe,
CORAM
: A.P.BHANGALE, J.
Date of pronouncing the Judgment : 6.3.2014.
Citation;2014(4) MHLJ 895 Bom
Read original judgment here; click here
1. This appeal arose out of the Judgment and Order dated
28.10.1999 passed in the Regular Civil Appeal No.263 of 1996 by the
4th Additional District Judge, Nagpur which was allowed. The said
appeal was filed challenging the Judgment and Order dated 11.3.1996
passed in Regular Civil Suit No.1395 of 1990 by Civil Judge (J.D.),
Nagpur whereby the suit was dismissed. For the sake of convenience,
the parties are referred to in the judgement by their nomenclature in
title of the plaint respectively.
2. Heard the submissions at the bar.
3. This Second Appeal was admitted upon the following
substantial questions of law.:::
(i) Is it not that if the decree dated 28071968
in Civil Suit
No.1998/1967 is not executed within a period of 12 years
as per article 136 of the Limitation Act, 1963, the right of
the owner to obtain possession of the suit property gets
lost ?
(ii)Is it not if the decree dated 28071968
in Civil Suit
No.2998/1967 is not executed within a period of 12 years
as per article 136 of the Limitation Act, 1963, the owners
are not entitled in law to file a fresh suit to obtain
possession of the same property which was the subject
matter of the Civil Suit No.2998/1967 ?
I answer the above questions in the negative for
the following reasons.
4. One Smt. Sheeladevi Diwanchand Midha, who had purchased
the suit property from Shri Haricharanlal Govindprasad Agrawal, sold
the suit property to the plaintiff. The plaintiff claimed ownership of
the suit premises on the basis of the registered Sale deed dated
19.10.1984. (Exh.45).
5. In the past, Haricharanlal had sued his tenant of the suit
premises Shri Ganpat Ramgirkar. The notice to quit was issued on
05.07.1965. But the tenant did not vacate the house. The plaintiffs
had instituted the proceedings under the Rent Control law. Original
plaintiffs had filed the suit for declaration and recovery of possession
of the house bearing No.312/03,
Ward no. 29, Garud khamb Road,
Nagpur. The suit house was originally owned by Haricharanlal
Govindprasad who had instituted the suit for recovery of possession
against the original defendant being Suit No.2998 of 1967 decreed on
23.07.1968. But the defendants denied the title of the plaintiff as
landlord. Thus, the present suit on title was instituted by the plaintiff
after issuing notice to the defendant. The plaintiff contended that
assuming that Haricharanlal did not file the execution proceedings,
the defendant’s legal representatives cannot become the owner of the
suit premises. The title suit was disputed on the ground that the
landlord Haricharanlal had failed to execute the decree and hence, the
remedy for recovery of possession on the same ground is barred as
time for execution has expired. The suit is, thus, challenged as barred
by limitation as also in view of Order II, Rule 2 of the Code of Civil
Procedure.
6. The trial Court held that the plaintiffs were owners of the suit
premises, but the suit was untenable in the present form and
proceeded to dismiss the suit.
7. The first Appellate court held that when a plea of adverse
possession is raised, Article 65 is attracted and it is the Civil Court and
not the Revenue Court which can decide the plea of adverse
possession. The party raising the plea for adverse possession must
plead and prove that his possession of the suit property was hostile
assertion by the defendant to the knowledge of the owner,
uninterrupted, open, continuous, animus possidendi for the period of
prescription i.e. 12 years or more. T. Anjanappa & Ors. v.
Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is wellrecognised
proposition in law that mere possession, however long,
does not necessarily mean that it is adverse to the true owner. Adverse
possession really means the hostile possession which is expressly or
impliedly in denial of title of the true owner and in order to constitute
adverse possession, the possession proved must be adequate in
continuity, in publicity and in extent so as to show that it is adverse to
the true owner. The classical requirements of acquisition of title by
adverse possession are that such possession in denial of the true
owner’s title must be peaceful, open and continuous. The possession
must be open and hostile enough to be capable of being known by the
parties interested in the property, though it is not necessary that there
should be evidence of the adverse possessor actually informing the
real owner of the former s hostile action.”
8. Article 136 of the Limitation Act, 1963 provided limitation of
12 years for execution of the decree or order of the Civil Court
(Except decree granting mandatory injunction). Period of Twelve
years is computable from the time the decree became enforceable or
from the date of the first default on the part of the judgment debtor to
comply with the decree. Thus, the limitation starts when the decree is
capable of being executed. Irrespective of the bar by limitation to
execute the decree, such decree is still a conclusive evidence of the
matter decided by it. Thus, for the purposes unconnected with the
execution of the decree, validity of the decree is not affected. The
judgment debtor may be punished for his disobedience to the decree
passed or for contempt of the court. The doctrine of resjudicata
would
prevent the second suit on the same cause of action. But fresh suit by
the plaintiff on the different cause of action on the basis of the title is
not barred. In other words, fresh Suit by owner of immovable
property upon a different cause of action is not barred. It is for the
plaintiff to aver the cause of the suit by stating the fact in the plaint
which if traversed is required to be proved by the plaintiff to support
his right to the judgment of the Court. When the plea of adverse
possession was taken in a suit based on title, Article 65 of the
Limitation Act, 1963 was attracted. Period of 12 years of limitation is
computable from the date i.e. 05.05.1990 in the present case. The first
Appellate Court rightly held the suit as well within limitation.
9. Furthermore, regarding presumption of jurisdiction of the
Civil Court, we may refer to ruling in Raleigh Investment Co. Ltd. v.
Governor General in Council, AIR 1947 PC 78, in which it is held as
under :
"...................there is a general presumption that there must
be a remedy in the ordinary civil court to a citizen claiming
that an amount had been recovered from him illegally and
that such a remedy can be held to be barred only on very
clear and unmistakable indication to the contrary.” The
exclusion of the jurisdiction is by an express provision to
that effect or which leads to a necessary and inevitable
implication of that nature.
10. The Constitution Bench of the Hon'ble Supreme Court in
Dhulabhai and Anr. v. State of Madhya Pradesh and Anr., AIR 1969
SC 78, held that exclusion of jurisdiction of the Civil Court by express
provision may not be a complete bar to entertain a suit if party
satisfies the Civil Court that the Statutory Tribunal has not acted in
conformity with the fundamental principles of judicial procedure.
More so, the Statutory Tribunal must be competent to provide all the
remedies normally associated with the actions' in Civil Courts, which
are prescribed by the said Statute or not. More so, the exclusion of
jurisdiction of the Civil Court is not readily to be inferred unless the
aforesaid conditions are fulfilled.
11. In Smt. Bismillah v. Janeshwar Prasad and Ors., AIR 1990
SC 540, the Hon'ble Supreme Court has observed as under :
"It is true that the question of jurisdiction depends upon the
allegations in the plaint and not the merits or the result of
the suit. “ Legal position cannot be disputed that the issue of
jurisdiction of the civil court has to be decided on the basis
of the averments made in the plaint. The jurisdictional fact
in issue is required to be proved by the plaintiff who
approaches the court. The court to which the plaintiff has
approached would have to decide the jurisdictional fact and
proceed further to decide the suit on merits if its finding is
affirmative. Ordinary Civil court thus has the jurisdiction
irrespective of the defence taken by the defendant.
Allegations or averments in the plaint would thus decide the
forum to entertain and try the suit irrespective of the defence
in the written statement. The plaintiff would get relief by
proving the correctness of the averments made in the plaint
otherwise if the court finds that the averments are not true
the suit will have to be dismissed. In other words the
defendant cannot force the plaintiff to go the forum where
the plaintiff cannot go on the basis of his averments made in
the plaint.
12. In cases of the Suit on title, the Hon’ble Supreme Court of
India, (three Judges Bench) in case of Maria Margarida Sequeira
Fernandes & Ors. vsErasmo
Jack De Sequeira reported in (2012) 5
SCC 370 succinctly concluded in these words:
“ Principles of law which emerge in this case are crystallized
as under:1.
No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by long
possession of years or decades such person would not acquire
any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long possession.
The caretaker or servant has to give possession forthwith on
demand.
3. The Courts are not justified in protecting the possession of
a caretaker, servant or any person who was allowed to live
in the premises for some time either as a friend, relative,
caretaker or as a servant.
4. The protection of the Court can only be granted or
extended to the person who has valid, subsisting rent
agreement, lease agreement or license agreement in his
favour.
5. The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or
interest whatsoever for himself in such property irrespective
of his long stay or possession.”
13. Looking to the legal position discussed as above, in my
opinion, the learned first Appellate Judge has rightly set aside the
Judgment and Order of dismissal of the suit by the trial Court by
allowing the First Appeal and passing decree as prayed for by the
plaintiff holding the defendant liable jointly and severally to deliver
possession to the plaintiff and directing the defendants to deliver
vacant possession of the suit house to the plaintiff.
14. In the result of the discussion and answers recorded to the
substantial questions of law as raised, the appeal must fail. The
appeal is sans merits. It is, therefore, dismissed with costs.
JUDGE
Mr.R.R.Shrivastava, learned Counsel for the appellants prays
that the ad interim order in relation to possession shall be continued
for a further period of eight weeks since the appellants want to
approach the Apex Court. The ad interim order in relation to
possession shall accordingly continue to operate for a further period
of eight weeks.
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