It is, therefore, obvious that when the suit is based on title
for possession, once the title is established on the basis of
relevant documents and other evidence unless the defendant
proves adverse possession for the prescriptive period, the plaintiff
cannot be nonsuited.
Unfortunately, this aspect of the matter
was missed by the learned Judge and, therefore, the entire
reasoning for disposing of the second appeal has got vitiated.
Only on that short ground and without expressing any opinion
on the merits of the question of law framed by the learned Judge
for disposing of the second appeal, this appeal is allowed. The
impugned decision rendered is set aside and the second appeal is
restored to the file of the High Court with a request to proceed
further with the hearing of the appeal with respect to the
substantial question aforementioned in accordance with law. No
costs.”
The said view has been further followed in the case of M. Durai
Vs. Muthu and Ors. (2007) 3 SCC 114 and I quote paragraph 7
therefrom.
“7. The change in the position in law as regards the burden of
proof as was obtaining in the Limitation Act, 1908 visavis
the
Limitation Act, 1963 is evident. Whereas in terms of Articles 142
and 144 of the old Limitation Act, the Plaintiff was bound to prove
his title as also possession within twelve years preceding the date of
institution of the suit under the Limitation Act, 1963, once the
Plaintiff proves his title, the burden shifts to the Defendant to
establish that he has perfected his title by adverse possession.”
The question framed by me therefore, is no more resintegra
in
the light of the pronouncement made by the Supreme Court as above.
In the light of the above, therefore, I must answer question No.2 in the
affirmative and hold that the suit was well within limitation and was
not barred by limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SECOND APPEAL NO.625 OF 2013
WITH
CIVIL APPLICATION NO.1474 OF 2013
Dhondyabai @ Laxmibai Rajaram Kale
Since deceased through legal heirs … Appellants
V/s.
Keda Devman Dore
Since deceased through legal heirs … Respondents
CORAM: A. B. CHAUDHARI, J.
DATED : SEPTEMBER 29, 2014
Citation;2015(2) ALLMR881
1. Being aggrieved by the judgment and decree dated 14th July
2009 passed by the learned Civil Judge, Junior Division, Kalwan, Dist.
Nasik in Regular Civil Suit No.63 of 1999 and confirmed in Regular
Civil Appeal No.167 of 2009 by judgment and decree dated 3rd April
2013 passed by the learned Adhoc District Judge, Nasik, the present
appeal has been filed by the unsuccessful Plaintiff.
2. In support of the appeal, the learned counsel for the Appellants
submitted that in the suit filed by the Appellants, the Trial Court held
in answering the issue framed by him that the suit property is the
ancestral property of the Plaintiff and she is owner thereof, the
mutation entry in the name of Defendants is illegal. The suit filed by
her was not within limitation and consequently the Appellants were not
entitled to the relief of declaration and possession claimed by them.
The counsel for the Appellants therefore contended that the Trial Court
thus answered all the issues in favour of the Appellants Plaintiff that
the Appellants are owner of the suit property and that the mutation
entry taken in the name of the Defendants is legal, but then refused to
grant declaration as well as possession, only because the suit was found
to be barred by limitation in answering issue No.7.
3. The learned counsel for the Appellants emphasized that the issue
No.8 framed by the Trial Court as to whether Defendant Nos.1, 2 and 4
become owner of the suit property by adverse possession, has been
answered against the Defendants which means that the Defendants
failed to prove their plea of adverse possession. Still the Trial Court
held that the suit was barred by limitation which is contrary to the law.
He relied on the following decisions.
(i) Yoshita R. Rivankar and Ors. Vs. Sunita Haldankar and
Ors. 2014(4) Mh.L.J. 463
(ii) Rukhamini Pandurang Sansthan & Ors. The State of
Maharashtra & Ors. 2013(1) ALL MR 536
(iii) Indira Vs. Arumugam and Anr. (1998) 1 SCC 614.
(iv) M. Durai Vs. Muthu and Ors. (2007) 3 SCC 114.
(v) Roop Singh (Dead) through Lrs. Vs. Ram Singh (Dead)
through Lrs. AIR 2000 SC 1485.
4. Finally, he prayed for allowing the Appeal and decreeing the suit.
He further submits in reply to the arguments made by the learned
counsel for the Respondents that admittedly, no crossobjection
was
filed by the Respondents Defendants before the lower Appellate Court
nor had assailed any of the findings which have been answered against
the Respondents Defendants. The findings on issue Nos.1, 2 and 8
having been answered in favour of the Appellants in the Trial Court and
in the absence of any crossobjection
or challenge to the findings during
argument before the lower Appellate Court, the same have become
final and conclusive between the parties and that cannot be reopened
in this second appeal.
5. Per contra, the learned counsel for the Respondents supported
the impugned judgment and the reasons recorded by the court below.
He submits that the suit was required to be filed within three years
from the date of alleged dispossession and said period having been lost,
the suit was rightly held to be barred by limitation. According to him,
Article 65 of the Limitation Act, 1963 provides for a period of 12 years
of limitation for filing a suit for possession and the suit was obviously
barred by limitation. In the alternative, the learned counsel for the
Respondents contended that the lower Appellate Court did not at all
advert to any of the issues answered by the Trial Court in favour of the
Appellants Plaintiffs and then there was no adjudication by the lower
Appellate Court on those issues except the issue of limitation framed
and decided by the lower Appellate Court. That being so, according to
him, if this court is inclined to hold that the suit was not barred by
limitation by reversing the finding of two courts below, then in that
case, the appeal should be sent back to the lower Appellate Court for
hearing on issues other than the issue of limitation so that the
Respondents will have an opportunity to contest the appeal on merits.
He, therefore, prayed for dismissal of the appeal.
6. Heard the learned counsel for the rival parties at length. This
court had framed the following substantial question of law at the time
of admission of the second appeal on 24th June 2014 and directed the
appeal to be placed for final disposal.
“Whether the courts below were right in dismissing the suit for
possession on the basis of title as barred by limitation in spite of the
fact that the Defendants have failed to establish their adverse
possession over the suit property?”
7. It is a fact that the Trial Judge answered the issue that the suit
property was ancestral property of the Plaintiffs Appellants and they
are owner thereof. He also answered issue No.2 that the mutation
entry in favour of the Defendants is illegal. He further answered that
the Defendants did not become owner by adverse possession or rather
they failed to prove adverse possession. The Trial Court, further
dismissed the suit holding that it was not filed within 12 years and was
beyond limitation vide issue No.7. I have checkedup
the findings on
issue Nos.1, 2 and 8 and I find that the answers have been given by the
Trial Court on merits on all these issues. Admittedly, the Defendants
Respondents did not file crossobjection
and that is clear from the
following observations made by the lower Appellate Court, which I
quote from paragraph 10 of the judgment:
“10.......................From entire evidence on record, it is clear that
the possession of the suit property is not within the
Plaintiff/present appellant since 1969. Further, the trial court has
held that although the Defendants are in possession of the suit
property, but they have failed to prove that they have acquired title
by adverse possession. Moreover, the Defendants have not filed
crossobjection;
therefore, there is no necessity for this court to go
into the legality of the finding given by the trial court except on the
point of limitation......................”
8. It clearly appears that the Respondents Defendants did not raise
any challenge before the lower Appellate Court in respect of other
issues viz. issue Nos.1, 2 and 8. The alternate submission made by the
learned counsel for the Respondent, that if this court comes to a
conclusion that the issue of limitation was wrongly decided against the
Appellant Plaintiff then the appeal should be sent back to the lower
Appellate Court for fresh hearing, does not appeal to me. The reason
is, that the finding on issue Nos.1, 2 and 8 have become final and
conclusive between the parties. Insofar as the finding on issue Nos.3
and 4 are concerned, they are consequential to issue No.7 answered
against the Appellants and in fact there is no discussion thereon by the
courts below because the same was dependent on answer to issue No.7.
Be that as it may, since issue Nos.1, 2 and 8 were not put to challenge
by the Respondents Defendants, I do not think that the Appellants can
be put to prejudice by reopening the findings of facts which have
become final and conclusive on those issues. Hence, I am inclined to
accept the submission made by the learned counsel for the
Respondents.
9. Now, coming to the issue about limitation, I find that it would be
relevant to quote paragraph 22 of the Trial Court judgment to
understand the relevant dates in finding out the issue of limitation,
which is as under:
“22. Perusal of the case and documents as Mahadu was died in
1963 the date of birth of Dhondyabai must be in the year 1963. As
per third column of the schedule the legal disability was ceased in
the year 1981, the Plaintiff must have filed the suit on or before
1984 or as per Article 109 she must have challenged the
transaction/alienation by Defendant No.1 in favour of Defendant
No.2 within 12 years from execution of sale deed, that means she
ought to have filed this suit prior to 28.12.1995 but the suit has
been instituted on 9.6.1999. It clearly shows that, the suit is not
within limitation and hopelessly barred by limitation and she was
not dispossessed prior to 2 months of the filing of the suit. She was
not in possession any any time.”
10. It is clear from the dates in the aforesaid paragraph that the Trial
Court found that the suit was not filed within 12 years from the date of
execution of the sale deed. The lower Appellate Court also committed
some error by holding that the Appellant Dhondyabai should have filed
the suit at least three years after attaining majority and also within 12
years. I quote paragraph 11 from the judgment of the lower Appellate
Court.
“11. Now coming to the point of limitation, the Plaintiffs'
contention is that the cause of action has arisen just prior to two
months of filing of the suit for the reason that the Defendants have
refused to hand over the possession of the suit property. As against
this, it is the contention of the Defendants that the Plaintiff was
aware that the suit property was transferred to the Defendants way
back in 1969 and therefore, the suit is miserably barred by law of
limitation. As far as Bhagabai is concerned, she being a major and
being aware of the entries in record of right should have filed the
suit within the period of limitation i.e. within 12 years. As far as
Dhondyabai is concerned, she was a minor at the time of death of
Mahadu and at the time when the alleged transaction had taken
place. Dhondyabai should have filed the suit after 3 years of her
attaining the age of majority and within 12 years. In the year
1969, she was around 9 years of age. She should have filed the suit
within 3 years after she attained the age of majority and within 12
years that means after 15 years of the alleged transaction. The suit
is filed on 30/07/1999, which is after the period of limitation and
therefore the suit is not within limitation.
11. It is an admitted position that the Trial Court held that the
Defendants Respondents failed to prove that they were in adverse
possession. The suit of the Appellants Plaintiffs was based on title and
the Defendants having failed to prove adverse possession, obviously the
concept of adverse possession will have to be ruled out in the present
case.
12. That finding is complete and binding on the parties. In this
behalf, it would be appropriate to refer to the decision of the Supreme
Court in the case of Indira (supra) and it would be appropriate to quote
paragraph 4 and 5 therefrom, which I quote.
“4. The aforesaid reasoning of the learned Judge, with respect,
cannot be sustained as it proceeds on the assumption as if old
Article of the earlier Limitation Act was in force wherein the
plaintiff who based his case on title had to prove not only title but
also possession within 12 years of the date of the suit. The said
provision of law has undergone a metamorphic sea change as we
find under the Limitation Act, 1963 Article which reads as under:
Description of suit Period of
limitation
Time from which period
beings to run
65 For possession of
immovable property or
any interest therein
based on title.
Twelve years When the possession of the
defendant becomes adverse
to the plaintiff.
5. It is, therefore, obvious that when the suit is based on title
for possession, once the title is established on the basis of
relevant documents and other evidence unless the defendant
proves adverse possession for the prescriptive period, the plaintiff
cannot be nonsuited.
Unfortunately, this aspect of the matter
was missed by the learned Judge and, therefore, the entire
reasoning for disposing of the second appeal has got vitiated.
Only on that short ground and without expressing any opinion
on the merits of the question of law framed by the learned Judge
for disposing of the second appeal, this appeal is allowed. The
impugned decision rendered is set aside and the second appeal is
restored to the file of the High Court with a request to proceed
further with the hearing of the appeal with respect to the
substantial question aforementioned in accordance with law. No
costs.”
13. The said view has been further followed in the case of M. Durai
Vs. Muthu and Ors. (2007) 3 SCC 114 and I quote paragraph 7
therefrom.
“7. The change in the position in law as regards the burden of
proof as was obtaining in the Limitation Act, 1908 visavis
the
Limitation Act, 1963 is evident. Whereas in terms of Articles 142
and 144 of the old Limitation Act, the Plaintiff was bound to prove
his title as also possession within twelve years preceding the date of
institution of the suit under the Limitation Act, 1963, once the
Plaintiff proves his title, the burden shifts to the Defendant to
establish that he has perfected his title by adverse possession.”
14. The question framed by me therefore, is no more resintegra
in
the light of the pronouncement made by the Supreme Court as above.
In the light of the above, therefore, I must answer question No.2 in the
affirmative and hold that the suit was well within limitation and was
not barred by limitation. Hence, answering question No.2 in the
affirmative in favour of the Appellant and in view of the findings in his
favour recorded by the lower Appellate Court on merits of the matter,
the following order is inevitable.
ORDER
a) Second Appeal No.625 of 2013 is allowed with costs.
b) The impugned judgment and decree dated 3rd April 2013
passed by the learned Adhoc District Judge, Nasik in Regular
Civil Appeal No.167 of 2009 is set aside.
c) The Regular Civil Suit No.63 of 1999 filed by the Appellant
Plaintiff is decreed with cost.
i) It is hereby declared that the Appellant Plaintiff is
owner of the suit property.
ii) It is hereby declared that Mutation Entry No.5458 in
the name of Defendant No.1 is illegal and consequent
transactions based thereon are also illegal.
iii) There shall be decree of possession of the suit
property which shall be delivered by the Appellants
Plaintiffs to Respondent No.1 within a period of six months
from today.
d) In view of disposal of the second appeal, Civil Application
does not survive. Hence, same stands dismissed as infructuous.
(A. B. CHAUDHARI, J.)
for possession, once the title is established on the basis of
relevant documents and other evidence unless the defendant
proves adverse possession for the prescriptive period, the plaintiff
cannot be nonsuited.
Unfortunately, this aspect of the matter
was missed by the learned Judge and, therefore, the entire
reasoning for disposing of the second appeal has got vitiated.
Only on that short ground and without expressing any opinion
on the merits of the question of law framed by the learned Judge
for disposing of the second appeal, this appeal is allowed. The
impugned decision rendered is set aside and the second appeal is
restored to the file of the High Court with a request to proceed
further with the hearing of the appeal with respect to the
substantial question aforementioned in accordance with law. No
costs.”
The said view has been further followed in the case of M. Durai
Vs. Muthu and Ors. (2007) 3 SCC 114 and I quote paragraph 7
therefrom.
“7. The change in the position in law as regards the burden of
proof as was obtaining in the Limitation Act, 1908 visavis
the
Limitation Act, 1963 is evident. Whereas in terms of Articles 142
and 144 of the old Limitation Act, the Plaintiff was bound to prove
his title as also possession within twelve years preceding the date of
institution of the suit under the Limitation Act, 1963, once the
Plaintiff proves his title, the burden shifts to the Defendant to
establish that he has perfected his title by adverse possession.”
The question framed by me therefore, is no more resintegra
in
the light of the pronouncement made by the Supreme Court as above.
In the light of the above, therefore, I must answer question No.2 in the
affirmative and hold that the suit was well within limitation and was
not barred by limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SECOND APPEAL NO.625 OF 2013
WITH
CIVIL APPLICATION NO.1474 OF 2013
Dhondyabai @ Laxmibai Rajaram Kale
Since deceased through legal heirs … Appellants
V/s.
Keda Devman Dore
Since deceased through legal heirs … Respondents
CORAM: A. B. CHAUDHARI, J.
DATED : SEPTEMBER 29, 2014
Citation;2015(2) ALLMR881
1. Being aggrieved by the judgment and decree dated 14th July
2009 passed by the learned Civil Judge, Junior Division, Kalwan, Dist.
Nasik in Regular Civil Suit No.63 of 1999 and confirmed in Regular
Civil Appeal No.167 of 2009 by judgment and decree dated 3rd April
2013 passed by the learned Adhoc District Judge, Nasik, the present
appeal has been filed by the unsuccessful Plaintiff.
2. In support of the appeal, the learned counsel for the Appellants
submitted that in the suit filed by the Appellants, the Trial Court held
in answering the issue framed by him that the suit property is the
ancestral property of the Plaintiff and she is owner thereof, the
mutation entry in the name of Defendants is illegal. The suit filed by
her was not within limitation and consequently the Appellants were not
entitled to the relief of declaration and possession claimed by them.
The counsel for the Appellants therefore contended that the Trial Court
thus answered all the issues in favour of the Appellants Plaintiff that
the Appellants are owner of the suit property and that the mutation
entry taken in the name of the Defendants is legal, but then refused to
grant declaration as well as possession, only because the suit was found
to be barred by limitation in answering issue No.7.
3. The learned counsel for the Appellants emphasized that the issue
No.8 framed by the Trial Court as to whether Defendant Nos.1, 2 and 4
become owner of the suit property by adverse possession, has been
answered against the Defendants which means that the Defendants
failed to prove their plea of adverse possession. Still the Trial Court
held that the suit was barred by limitation which is contrary to the law.
He relied on the following decisions.
(i) Yoshita R. Rivankar and Ors. Vs. Sunita Haldankar and
Ors. 2014(4) Mh.L.J. 463
(ii) Rukhamini Pandurang Sansthan & Ors. The State of
Maharashtra & Ors. 2013(1) ALL MR 536
(iii) Indira Vs. Arumugam and Anr. (1998) 1 SCC 614.
(iv) M. Durai Vs. Muthu and Ors. (2007) 3 SCC 114.
(v) Roop Singh (Dead) through Lrs. Vs. Ram Singh (Dead)
through Lrs. AIR 2000 SC 1485.
4. Finally, he prayed for allowing the Appeal and decreeing the suit.
He further submits in reply to the arguments made by the learned
counsel for the Respondents that admittedly, no crossobjection
was
filed by the Respondents Defendants before the lower Appellate Court
nor had assailed any of the findings which have been answered against
the Respondents Defendants. The findings on issue Nos.1, 2 and 8
having been answered in favour of the Appellants in the Trial Court and
in the absence of any crossobjection
or challenge to the findings during
argument before the lower Appellate Court, the same have become
final and conclusive between the parties and that cannot be reopened
in this second appeal.
5. Per contra, the learned counsel for the Respondents supported
the impugned judgment and the reasons recorded by the court below.
He submits that the suit was required to be filed within three years
from the date of alleged dispossession and said period having been lost,
the suit was rightly held to be barred by limitation. According to him,
Article 65 of the Limitation Act, 1963 provides for a period of 12 years
of limitation for filing a suit for possession and the suit was obviously
barred by limitation. In the alternative, the learned counsel for the
Respondents contended that the lower Appellate Court did not at all
advert to any of the issues answered by the Trial Court in favour of the
Appellants Plaintiffs and then there was no adjudication by the lower
Appellate Court on those issues except the issue of limitation framed
and decided by the lower Appellate Court. That being so, according to
him, if this court is inclined to hold that the suit was not barred by
limitation by reversing the finding of two courts below, then in that
case, the appeal should be sent back to the lower Appellate Court for
hearing on issues other than the issue of limitation so that the
Respondents will have an opportunity to contest the appeal on merits.
He, therefore, prayed for dismissal of the appeal.
6. Heard the learned counsel for the rival parties at length. This
court had framed the following substantial question of law at the time
of admission of the second appeal on 24th June 2014 and directed the
appeal to be placed for final disposal.
“Whether the courts below were right in dismissing the suit for
possession on the basis of title as barred by limitation in spite of the
fact that the Defendants have failed to establish their adverse
possession over the suit property?”
7. It is a fact that the Trial Judge answered the issue that the suit
property was ancestral property of the Plaintiffs Appellants and they
are owner thereof. He also answered issue No.2 that the mutation
entry in favour of the Defendants is illegal. He further answered that
the Defendants did not become owner by adverse possession or rather
they failed to prove adverse possession. The Trial Court, further
dismissed the suit holding that it was not filed within 12 years and was
beyond limitation vide issue No.7. I have checkedup
the findings on
issue Nos.1, 2 and 8 and I find that the answers have been given by the
Trial Court on merits on all these issues. Admittedly, the Defendants
Respondents did not file crossobjection
and that is clear from the
following observations made by the lower Appellate Court, which I
quote from paragraph 10 of the judgment:
“10.......................From entire evidence on record, it is clear that
the possession of the suit property is not within the
Plaintiff/present appellant since 1969. Further, the trial court has
held that although the Defendants are in possession of the suit
property, but they have failed to prove that they have acquired title
by adverse possession. Moreover, the Defendants have not filed
crossobjection;
therefore, there is no necessity for this court to go
into the legality of the finding given by the trial court except on the
point of limitation......................”
8. It clearly appears that the Respondents Defendants did not raise
any challenge before the lower Appellate Court in respect of other
issues viz. issue Nos.1, 2 and 8. The alternate submission made by the
learned counsel for the Respondent, that if this court comes to a
conclusion that the issue of limitation was wrongly decided against the
Appellant Plaintiff then the appeal should be sent back to the lower
Appellate Court for fresh hearing, does not appeal to me. The reason
is, that the finding on issue Nos.1, 2 and 8 have become final and
conclusive between the parties. Insofar as the finding on issue Nos.3
and 4 are concerned, they are consequential to issue No.7 answered
against the Appellants and in fact there is no discussion thereon by the
courts below because the same was dependent on answer to issue No.7.
Be that as it may, since issue Nos.1, 2 and 8 were not put to challenge
by the Respondents Defendants, I do not think that the Appellants can
be put to prejudice by reopening the findings of facts which have
become final and conclusive on those issues. Hence, I am inclined to
accept the submission made by the learned counsel for the
Respondents.
9. Now, coming to the issue about limitation, I find that it would be
relevant to quote paragraph 22 of the Trial Court judgment to
understand the relevant dates in finding out the issue of limitation,
which is as under:
“22. Perusal of the case and documents as Mahadu was died in
1963 the date of birth of Dhondyabai must be in the year 1963. As
per third column of the schedule the legal disability was ceased in
the year 1981, the Plaintiff must have filed the suit on or before
1984 or as per Article 109 she must have challenged the
transaction/alienation by Defendant No.1 in favour of Defendant
No.2 within 12 years from execution of sale deed, that means she
ought to have filed this suit prior to 28.12.1995 but the suit has
been instituted on 9.6.1999. It clearly shows that, the suit is not
within limitation and hopelessly barred by limitation and she was
not dispossessed prior to 2 months of the filing of the suit. She was
not in possession any any time.”
10. It is clear from the dates in the aforesaid paragraph that the Trial
Court found that the suit was not filed within 12 years from the date of
execution of the sale deed. The lower Appellate Court also committed
some error by holding that the Appellant Dhondyabai should have filed
the suit at least three years after attaining majority and also within 12
years. I quote paragraph 11 from the judgment of the lower Appellate
Court.
“11. Now coming to the point of limitation, the Plaintiffs'
contention is that the cause of action has arisen just prior to two
months of filing of the suit for the reason that the Defendants have
refused to hand over the possession of the suit property. As against
this, it is the contention of the Defendants that the Plaintiff was
aware that the suit property was transferred to the Defendants way
back in 1969 and therefore, the suit is miserably barred by law of
limitation. As far as Bhagabai is concerned, she being a major and
being aware of the entries in record of right should have filed the
suit within the period of limitation i.e. within 12 years. As far as
Dhondyabai is concerned, she was a minor at the time of death of
Mahadu and at the time when the alleged transaction had taken
place. Dhondyabai should have filed the suit after 3 years of her
attaining the age of majority and within 12 years. In the year
1969, she was around 9 years of age. She should have filed the suit
within 3 years after she attained the age of majority and within 12
years that means after 15 years of the alleged transaction. The suit
is filed on 30/07/1999, which is after the period of limitation and
therefore the suit is not within limitation.
11. It is an admitted position that the Trial Court held that the
Defendants Respondents failed to prove that they were in adverse
possession. The suit of the Appellants Plaintiffs was based on title and
the Defendants having failed to prove adverse possession, obviously the
concept of adverse possession will have to be ruled out in the present
case.
12. That finding is complete and binding on the parties. In this
behalf, it would be appropriate to refer to the decision of the Supreme
Court in the case of Indira (supra) and it would be appropriate to quote
paragraph 4 and 5 therefrom, which I quote.
“4. The aforesaid reasoning of the learned Judge, with respect,
cannot be sustained as it proceeds on the assumption as if old
Article of the earlier Limitation Act was in force wherein the
plaintiff who based his case on title had to prove not only title but
also possession within 12 years of the date of the suit. The said
provision of law has undergone a metamorphic sea change as we
find under the Limitation Act, 1963 Article which reads as under:
Description of suit Period of
limitation
Time from which period
beings to run
65 For possession of
immovable property or
any interest therein
based on title.
Twelve years When the possession of the
defendant becomes adverse
to the plaintiff.
5. It is, therefore, obvious that when the suit is based on title
for possession, once the title is established on the basis of
relevant documents and other evidence unless the defendant
proves adverse possession for the prescriptive period, the plaintiff
cannot be nonsuited.
Unfortunately, this aspect of the matter
was missed by the learned Judge and, therefore, the entire
reasoning for disposing of the second appeal has got vitiated.
Only on that short ground and without expressing any opinion
on the merits of the question of law framed by the learned Judge
for disposing of the second appeal, this appeal is allowed. The
impugned decision rendered is set aside and the second appeal is
restored to the file of the High Court with a request to proceed
further with the hearing of the appeal with respect to the
substantial question aforementioned in accordance with law. No
costs.”
13. The said view has been further followed in the case of M. Durai
Vs. Muthu and Ors. (2007) 3 SCC 114 and I quote paragraph 7
therefrom.
“7. The change in the position in law as regards the burden of
proof as was obtaining in the Limitation Act, 1908 visavis
the
Limitation Act, 1963 is evident. Whereas in terms of Articles 142
and 144 of the old Limitation Act, the Plaintiff was bound to prove
his title as also possession within twelve years preceding the date of
institution of the suit under the Limitation Act, 1963, once the
Plaintiff proves his title, the burden shifts to the Defendant to
establish that he has perfected his title by adverse possession.”
14. The question framed by me therefore, is no more resintegra
in
the light of the pronouncement made by the Supreme Court as above.
In the light of the above, therefore, I must answer question No.2 in the
affirmative and hold that the suit was well within limitation and was
not barred by limitation. Hence, answering question No.2 in the
affirmative in favour of the Appellant and in view of the findings in his
favour recorded by the lower Appellate Court on merits of the matter,
the following order is inevitable.
ORDER
a) Second Appeal No.625 of 2013 is allowed with costs.
b) The impugned judgment and decree dated 3rd April 2013
passed by the learned Adhoc District Judge, Nasik in Regular
Civil Appeal No.167 of 2009 is set aside.
c) The Regular Civil Suit No.63 of 1999 filed by the Appellant
Plaintiff is decreed with cost.
i) It is hereby declared that the Appellant Plaintiff is
owner of the suit property.
ii) It is hereby declared that Mutation Entry No.5458 in
the name of Defendant No.1 is illegal and consequent
transactions based thereon are also illegal.
iii) There shall be decree of possession of the suit
property which shall be delivered by the Appellants
Plaintiffs to Respondent No.1 within a period of six months
from today.
d) In view of disposal of the second appeal, Civil Application
does not survive. Hence, same stands dismissed as infructuous.
(A. B. CHAUDHARI, J.)
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