IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Prem Chand & Ors. Vs. Motichand & Ors. S.B. CIVIL FIRST APPEAL No.82/1981 UNDER SECTIOIN 96 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 22.12.1980 PASSED BY THE ADDITIONAL DISTRICT JUDGE, NO.7, JAIPUR CITY IN A SUIT FOR PARTITION OF PROPERTY. Date of Judgment :: 31st August, 2007 REPORTABLE Hon'ble Dr. Vineet Kothari, J. Mr.R.K. Agarwal for the appellants. Mr.Ajeet Bhandari for the respondents. 1. This appeal under Section 96 of the C.P.C. is directed against the judgment and decree of learned Additional District Judge, No.7, Jaipur City dated 22.12.1980. The present appeal has been filed by the defendant Prem Chand son of Shri Gulab Chand, the judgment- debtor, now represented through his legal representatives. 2. The facts in brief giving rise to this appeal are that the decree-holder-plaintiff Khajulal, now represented through his legal representatives Shri Motichand and others filed a suit for partition and possession of the half portion of a residential house known as “Haveli” situated at Chokadi Ramchandraji in Jaipur. The said Haveli was a joint Hindu Undivided Family property of Gulab Chand and one Maliram having half share each. In a decree passed in favour of one Ganga Pratap against defendant Gulab Chand in execution case No.654/42, the said half share of Gulab Chand of the Haveli was attached and auctioned, which was purchased by plaintiff Khajulal in a court auction on 6.1.1942 for a sum of Rs.1,005/- and the sale certificate in this regard was also issued by the Executing Court on 30.11.1942. The said decree-holder Khajulal filed an application for possession of the said one-half portion of Gulab Chand in the Haveli and the symbolic possession of the same was given to him on 17.11.1943 by the Bailiff of the Court with the following report, which is reproduced hereunder in Hindi and Urdu language as it is and the bracketed English translation as informed by learned counsel by referring to the dictionary. “जनबाअली मɇ मयगोǒवÛ दिसंहचपरासीǑदनांक 17.11.43 बवÈ त 12.30 बजे Ǒदनमकानगुलाबचंदहमरानुँ तरȣ मौके परपहंचा। ु गुलाबचंद मौजूदिमला।उसकोहÈ म ु सेमुतलाǑकयागयातोबयानǑकयाǑक कÞ जादेनेमɅ मुझकोकोईउजर (inform) नहȣंहै।जायदादसौसीरȣ (joint) है।आधीकाकÞ जालेले। ह0 गुलाबचÛ द िलहाजाजǐरयेढोलएलानकÞ जािनः फ (half) मकानकाǑकया गयाऔरǑडगरȣदारकोजǐरयेएलानकÞ जाǑदलाǑदयागयाऔर ǑकरायानामातहरȣरकराकरकÞ जाकरायागया। जǐरयेढोलǑकरायानामामौǐरखा (written or dated) इमरोजा (today) बरकागजसादाकÞ जािनः फमकानकालेिलया। ह0खाजूलाल” 3. That on 10.9.1973 after the death of Khajulal, his successors Motichand and others filed the present suit for partition and possession of the one half share in the said Haveli belonging to the judgment-debtor Gulab Chand claiming the following reliefs in the suit, which is also reproduced in Hindi as given in the plaint, as under:- “(क) दावावादȣगणǔखलाफूितवादȣ Ǒडमीफरमायाजाकरकुल हवेलीमुÛ दजा[ मदनं.1 केदोǑहः सेबराबरकेǑकयेजाकरवादȣगण केǑहः सेमɅ जोजायदादबाईमीÒसएÛ डबाउÖ डआवेउसपरदखल जुदागानावादȣगणकोǑदलायाजावेऔरचौक, पोल, नाल, तहारत मुँ तकारखाजावे। (ख) दावावादȣगणǔखलाफूितवादȣ बकदरमु.180 ǽपयाजरे Ǒकरायावहजा[ वबाबतइÛ खताǑडमीफरमायाजाकरजायदाद मुÛ दजा[ Ǒकरायानामा 24.9.58 परबबेरखतीूितवादȣ वादȣगणका कÞ जाकरायाजावे। (ग) योमदायरȣ दावाताइÛ खलाजरेहजा[ बाबतइः तेमाल मकानातयाजरेवासलातबशहर 5 ǽÜ यामािसकपररसूमली जाकरवसूलकरायाजावे। (घ) खचा[ मुकदमाǑदलायाजावे। (ड.) दȣगरदादरसीजोकरȣनेइÛ साफहोवोहǑदलाईजावे"। 4. Learned trial Court framed as many as 13 issues in the trial of the suit, which are reproduced from the impugned judgment, as under:- “1. Whether half of the house detailed in para No.1 of the plaint which belonged to defendant's father Gulab Chand was put to auction in execution case No.654/42 and was purchased by the plaintiff's ancestor Khajulal in Court auction sale? 2. Whether Gulab Chand after the said auction sale attorned as a tenant to said Khajulal and then to his sons by executing rent notes (including one of 24.9.58) and paying rent at the rate of Rs.5/6 per month to them. 3. Whether there exists a relationships of landlord and tenant between the parties to the suit? 4. Whether an amount of Rs.872/- as rent and of Rs.902/- as damages for use and occupation is due to the plaintiff from the defendant? 5. Whether the defendant is a defaulter within the meaning of Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and liable to be evicted as such from the plaintiff's share of the suit house? 6. Whether the tenancy of defendant regarding the suit house has been determined by a valid notice to quit? 7. Whether the plaintiffs as successors of Khajulal are entitled to the partition and possession in respect of their half share in the suit house? 8. Whether the suit for partition and eviction cannot be tried together? 9. Whether the suit is barred by limitation? 10. Whether the plaintiffs had not been in possession of the suit house within a period of 12 years from the date of institution of the suit ? If so, to what effect? 11. In case issue No.1 comes to be decided in favour of the plaintiffs, whether the defendant and his ancestors are in adverse possession of Khajulal's share of house and had acquired ownership therein by prescription? 12. Whether the suit is undervalued and the court fee deficient. 13. Relief?” 5. While the issue relating to the partition was decided in favour of the plaintiffs holding that plaintiffs Motichand and others successors of Khajulal, the decree-holder, were entitled to one-half share in the said property belonging to the judgment-debtor, Gulab Chand and issue No.2 relating to tenancy was also decided partly in favour of the plaintiffs holding that the said Gulab Chand had attorned as a tenant to the said Khajulal and after his death, his sons have also executed a separate rent note on 24.9.1958 in favour of the successors of Khajulal vide Ex.5, yet related issue No.3 as to whether there exists relationship of landlord and tenant between the parties of the suit, was decided against the plaintiffs. The learned Trial Court while deciding issue No.3 held that though a rent note was executed in favour of Khajulal on 17.11.1943 (Ex.4) and thereafter, on 24.9.1958 (Ex.5), since auctioned portion of Haveli was not partitioned and the defendants never paid any rent to the plaintiffs, the relationship of landlord and the tenant did not stand established and defendant Gulab Chand was in permissible possession as co-sharer in the said half portion of the Haveli. The issue of limitation, namely, issue No.9 was decided in favour of the plaintiff and the suit was held to be within limitation by a detailed discussion of the law by the learned trial Court. 6. That as far as issue No.3 having been decided against the plaintiff, the plaintiff has not filed any cross-appeal or has not even filed any cross-objection in the present appeal filed by the defendant before this Court. In the present appeal filed by the defendant, the only point pressed by learned counsel for the defendants-appellants, Mr. R.K. Agarwal, is that of the limitation. No other point was pressed before this Court. 7. That thus, the question of law, which is required to be decided on the basis of facts found by the learned trial Court is as to whether the suit filed by the plaintiff on 10.7.1973 seeking partition of the said joint Hindu family property, the aforesaid Haveli and also possession of the one-half share of the judgment-debtor Gulab Chand was barred by limitation or not. 8. I have heard both the learned counsels for the parties at length and perused the record of the case and have gone through the impugned judgment as well as judgments cited at the bar. 9. The basic contention of learned counsel for the appellants- defendants, Mr. R.K. Agarwal, is that the present suit is governed by the old Limitation Act, 1908 as the sale in favour of the plaintiff, decree-holder, Khajulal was made by the Court in execution proceedings on 6.4.1942, which sale, was confirmed by the Court on 13.11.1942 by issuing the sale certificate in favour of the decree- holder, Khajulal. The new Limitation Act, 1963 came into force on 1.1.1964. He submitted that as per Article 138 of the Limitation Act, 1908, the period of limitation was only 12 years from the date when the sale becomes absolute, which according to him, in the present case expired on 30.11.1954, 12 years counted from the date 30.11.1942 when the sale certificate was issued in favour of plaintiff Khajulal in respect of undivided half share of Haveli. Referring to various Articles of the Limitation Act, 1908, he urged that since plaintiff Khajulal was a purchaser, in a Court sale in execution of decree when the judgment-debtor Gulab Chand was in possession on the date of sale, the period of limitation of 12 years started to run from the date when the sale becomes absolute vide column 3 of the said schedule of Articles of the Limitation Act, 1908 and thus, the suit filed on 10.9.1973, which was much after the lapse of 12 years on 30.11.1954, the present suit was barred by limitation and, therefore, issue No.9 was wrongly decided in favour of the plaintiff and the present appeal deserves to be allowed holding the suit to be time barred. It would be relevant to reproduce the various relevant clauses of Limitation Act, 1908, which were referred to by learned counsel for the appellant-defendants, as under:- Extract from Limitation Act, 1908 : Art. Description of Suit Period of Limitation Time from which period begins and runs 136 By a purchaser at private sale for possession of immovable property sold when the vendor was out of possession at the date of the sale. Twelve Years When the vendor is first entitled to possession. 138 Like suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was out of possession at the date of sale Twelve Years The date when the sale becomes absolute. 140 By a remainderman, a reversioner (other than landlord) or a devisee, for possession of immovable property. Twelve Years When his estate falls into possession. 141 Like suit by a Hindu or Muhammadan entitled to the possession of immovable property on the death of a Hindu or Muhammadan female. Twelve Years When the female dies. 144 For possession of immovable property or any interest therein not hereby otherwise specially provided for. Twelve Years When the possession of the becomes adverse to the plaintiff. 10. Learned counsel for the appellant-defendants also drew the attention of the Court towards Section 9 of the Limitation Act, 1963, which stipulates that where once time has began to run, no subsequent disability or inability to institute a suit or make an application stop it. Further by referring to Section 31 of the Limitation Act, 1963, learned counsel urged that if the period of limitation as prescribed under the old Limitation Act, 1908 had expired before coming into force the new Limitation Act, 1963, then the provisions of new Limitation Act shall not apply. According to him, since the limitation had expired on 30.11.1954, after lapse of 12 years, new Limitation Act would not apply in the present case. 11 L d l f h ll d f d h il therefore, the period of 12 years can at the most be counted from the said date i.e. 17.11.1943, if not from 30.11.1942 when the sale certificate was issued in favour of the said Khajulal and even then the present suit would be barred by the limitation. He submitted that though the purchaser of a coparcener's undivided interest in the joint family property is entitled to claim partition of the said property, but since in the present suit, the plaintiff had also claimed possession of the said property, the suit had to be brought within the period of 12 years from the date when the sale became absolute i.e. 30.11.1942. In the judgment relied upon by learned counsel, the Hon'ble Supreme Court held that in such a case Article 144 of the Limitation Act, 1908 will apply and though the order of symbolic possession made in favour of the transferee, purchaser of the undivided share in the coparcener's property was wrong in law, but it would not be said to be an order, which is without jurisdiction or a nullity and unless such order is set aside, it would have full effect and, therefore, since by delivery of symbolic possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted. The period of limitation has to commence to run from the date and so considered, the suit having been brought within twelve years of that date, it was held to be not barred by limitation. It would be appropriate to reproduce Para 5 of the said judgment, as under:- “5. As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession “would date from the period when a specific allotment was made in his favour : Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, 1954 SCR 177 at p. 188 (AIR 1953 SC 487 at p. 491). It would, therefore, appear that Sivayva was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras Full Bench case of Vyapuri v. Sonamma Boi Ammani, ILR 39 Mad 811 (AIR 1916 Mad 990 (2) FB)”. Justice V. Ramaswami expressing a concurring but a separate opinion held, as under :- “In my opinion, a suit like the present one will fall within Art. 144 of the Limitation Act. It is true that an alienee of an undivided interest interest of a Hindu coparcener is entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property. But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition. What the alinee acquires by a purchase is not any interest in specific family property but only an equity to enforce his right in a suit of partition and have the property alienated set apart for the alienor's share, if possible. In the present case the alienee has instituted a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor. It is not right to consider such a suit as a suit for mere partition. The main relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the alienor's share and a relief for partition is only a machinery for working out his right ancillary to the main relief for possession of the property allotted to the alienor's share. What the plaintiff seeks is actual delivery of possession. In my opinion, such a suit falls within the purview of Article 144 of the Limitation Act and the law on this point is correctly stated in Thani Vs. Dakshinamurthy, ILR (1955) Mad. 1278 (AIR 1955 Mad 288). If Article 144 is the proper article applicable, when does time commence to run? According to the third column of Article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff. As I have already pointed out the possession of the non-alienating members of the family cannot be deemed to be possession on behalf of the alienee also, because the purchaser-alienee does not acquire any interest in the property sold and does not become tenant- in-common with the members of the family nor is he entitled to joint possession with them. It is clear that in the absence of a clear acknowledgment of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of the non- alienating coparceners would b adverse to the alienee, from the date on which he became entitled to sue for general partition and possession of his alienor's share. The fact that the alienee has purchased an undivided interest of joint family property is not inconsistent with the conception of adverse possession of that interest”. 12. The aforesaid judgment, however, did not consider the effect of Article 138 as pointed out by learned counsel for the appellants-defendants and which, according to him, would more appropriately govern the present case. 13. Learned counsel for the appellants-defendants then relied upon the judgment of Madras High Court in Boologam Naidu Vs. Jagannath and Others AIR 1955 Madras 202, wherein the Madras High Court held, as under :- “A Court auction purchaser of an undivided interest of a coparcener in a joint Hindu family cannot be inducted into joint possession with erstwhile coparcener whose rights have been sold and purchased by him. A suit for partition and possession by such a purchaser is governed by Art. 138 and not by Art. 120 or Art. 127 or Art. 137 or Art. 137 and therefore a suit brought within twelve years from the date when the sale became absolute would be within time”. 14. Mr. R.K. Agarwal, learned counsel for the appellants- defendants while explaining the public policy behind the law of limitation, drew the attention of the Court towards a recent decision of the Hon'ble Supreme Court in Popat and Kotecha Property Vs. State Bank of India Staff Association (2005) 7 SCC 510 wherein the Hon'ble Supreme Court in Paras 7, 8 and 9 of the said judgment held, as under:- “7. The period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute i.e. the Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal. (Also see France B. Martins Vs. Mafalda Maria Teresa Rodrigues). 8. Bar of limitation does not obstruct the execution. It bars the remedy. (See V. Subha Rao Vs. Secy. to Govt. Panchayat Raj and Rural Development, Govt. of A.P.). 9. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. (See N. Balakrishnan Vs. M. Krishnamurthy)”. 15. In last, on permissibility to the respondents-plaintiffs to challenge the findings of the learned trial Court on issue No.3 as to relationship of landlord and tenant, learned counsel for the appellants- defendants relying upon the judgment of the Hon'ble Supreme Court in Choudhary Sahu (Dead) by LRS. Vs. State of Bihar (1982) 1 SCC 232, urged that in the absence of any cross-objection by the respondent-plaintiff, the appellate court would not be justified in reversing the finding given in favour of the appellants-defendants on issue No.3. He, therefore, submitted that if the relationship of the tenant and landlord was not established between the defendants and the plaintiffs, even if, the decree of the partition is upheld in favour of the plaintiff, he would not be entitled to the possession of the said one-half share of the suit property as the suit itself is barred by limitation in the present case. He further submitted that since the respondents-plaintiffs have not filed any cross-appeal or cross- objection on issue No.3 before this Court, the provisions of Order 41 Rule 22 C.P.C. do not permit the respondents to challenge the said findings in any manner. Thus, he submitted that the present suit deserves to be dismissed as barred by limitation and the appeal of the defendants on this issue was liable to succeed. 16. Per Contra, Mr. Ajeet Bhandari, learned counsel appearing for the respondents-plaintiffs, submits that the entire argument of learned counsel for the appellants-defendants proceeded on a misconception. He submitted that since the main relief claimed in the suit was partition of the joint family property for which admittedly and undoubtedly no limitation was prescribed either under the old Limitation Act, 1908 or in the new Limitation Act, 1963, the suit could not be held to be time barred and the learned trial Court had rightly decided the issue of limitation in favour of the plaintiffs. He submitted that there was no question of seeking possession of the joint family property as such because after the court auction, sale in favour of plaintiff Khajulal became the final on 30.11.1942 and on 17.11.1943 the Bailiff of the Court has already delivered the possession of the undivided half share of the suit property and even if, it was a symbolic possession, the possession had already been given to the plaintiff Khajulal. Again drawing the attention of the Court towards the report of the Bailiff, which is already countersigned by the judgment- debtor Gulab Chand quoted above, he submitted that it clearly established that the possession of the one-half share of the suit property belonging to Gulab Chand, was given to plaintiff Khajulal even though symbolic and the very fact that it was given on rent by declaration by way of drum beating by the judgment-debtor Gulab Chand and a written rent note was also executed on that date, though no such separate rent note ever came on record before the learned trial Court, he submitted that there is no question of applying the limitation of 12 years from the said date i.e. 17.11.1943 or even from the date when the sale became absolute on 30.11.1942. He further submitted that the subsequent rent note executed on 29.4.1958 was also signed by the judgment-debtor Gulab Chand in favour of the sons of the decree-holder Khajulal and, therefore, the intention and agreement between the parties of landlord and tenancy stood clearly established. He